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Basic Principles
Applicability and Scope of the Rules of Evidence
Factum Probandum & Factum Probans


Admissibility of Evidence
Circumstantial Evidence
Other Matters





Judicial Notice


Judicial Admission





Best Evidence Rule
Secondary Evidence
Parol Evidence Rule
Interpretation of Documents





Burden of Proof
Burden of Evidence


Presumption of Law
Conclusive Presumptions



Parental and Filial Privilege
Admissions and Confessions
Offer of Compromise
Res Inter Alios Acta Rule
Admission by a party
Admission by a third party
Admission by a co-partner or agent
Admission by a conspirator
Admission by privies
Admission by silence
Similar Acts as Evidence
Unaccepted Offer
Hearsay and Exceptions
Testimonial Knowledge
Dying Declaration
Declaration Against Interest
Act or Declaration ABout Pedigree
Family Reputation or Tradition Regarding Pedigree
Common Reputation



Disputable Presumptions
Presumption of Fact


Examination of Witnesses
Rights and Obligations of Witnesses
Witness Protection Program & State
Order in Examination of Witness
Direct Examination
Redirect Examination
Re-Cross Examination
Impeachment of Witnesses


Authentication and Proof of Documents


Offer and Objection

Rule on Examination of a Child Witness

Between Husband and Wife

Between Attorney and Client
Between Doctor and Patient
Between Priest and Penitent
Public Officers
Other Privileged Matters

Estoppel in Pais
Estoppel by Deed


Death or Insanity of Adverse Party
(Dead Mans Statute)
Privileged Communication




Competency & Credibility of a Witness
Qualifications of a Witness
Absolute and Relative Disqualification
Mental Incapacity or Immaturity

Part of Res Gestae

Entries in the Course of Business
Entries in Official Records
Commercial Lists and the Like
Learned Treatises
Testimony or Deposition at a Former
Opinion Evidence
Opinion of Expert Witness
Opinion of Ordinary Witness



Preponderance of Evidence


Proof Beyond Reasonable Doubt


Circumstantial Evidence


Substantial Evidence


Other Matters



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RULE 128

XPN: In criminal cases, if the alteration of the rules of

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


Rules of evidence are not self-executing. Confessions

made without the benefit of counsel are still admissible
in evidence if appellant failed to make timely objections
before the trial court.



What is evidence?

Like all other provisions under the Rules of Court, they

must be liberally construed because they are intended
as tools to facilitate rather than to frustrate the attainment of justice.

Evidence is the means sanctioned by the Rules of

Court, of ascertaining in a judicial proceeding the truth
respecting a matter of fact. (Sec. 1, Rule 128)


What are the four component elements of evidence?


Means of ascertainment - includes not only the

procedure or manner of ascertainment but also the
evidentiary fact from which the truth respecting a
matter of fact may be ascertained.


Sanctioned by the rules - not excluded by the

Rules of Court


In a judicial proceeding - contemplates an action

or proceeding filed in a court of law


The truth respecting a matter of fact - refers to

an issue of fact and is both substantive (determines
the facts needed to be established) and procedural
(governs the manner of proving said facts)


Evidence is likewise needed under the doctrine of processual presumption. When invoking a foreign law,
evidence of such law must be presented. Otherwise, the
court will presume that the foreign law is the same as
Philippine law.

When is there no need to present evidence?


Why is evidence required, what is its purpose?



What is judicial or legal truth?

Judicial or Legal Truth is the truth produced by evidence offered in court based on accepted rules for admissibility. Actual truth may not always be achieved in
judicial proceedings because the findings of the court
would depend on the evidence presented before it
based on the accepted rules for admissibility. For example, courts as a rule are not authorized to consider evidence which has not been formally offered.


When is there a need to present evidence?

Evidence is needed when the court has to resolve a
question of fact. Where the issue to be resolved is only
a question of law, no evidence is required and the issue
is to be resolved by mere application of applicable law
and jurisprudence.

It is required because of the presumption that the court

is not aware of the veracity of the facts involved in a
case. It is therefore incumbent upon the parties to prove
a fact in issue through the presentation of admissible

How are the rules of evidence construed?



May the rules of evidence be waived?

GR: Yes. The applicability of the rules is deemed waived
upon failure to seasonably raise the objection. The rules
of evidence are established for the protection of the
parties. (Ex. Failure to object to the admissibility of secondary evidence in documentary evidence).

Are there vested rights in the rules of evidence?

GR: None, because the rules of evidence are subject to
change by the Supreme Court pursuant to its power to
promulgate rules concerning pleading, practice and
procedure. Evidence otherwise inadmissible under the
law at the time the action accrued may be received in
evidence provided that it is admissible under the law in
force during the trial. Changes in the rules of evidence
are however subject to the constitutional limitation on
the enactment of ex post facto laws.

When there are no factual issue that exists in a

Where the case presents only a question of law,
such question is resolved by the mere application
of the relevant statutes or rules
When the pleadings in a civil case do not tender
an issue of fact (judgement on the pleadings)
Evidence may also be dispensed with by agreement of the parties in writing upon the facts involved in the litigation and to submit the case for
judgment upon the facts agreed upon, without the
introduction of evidence.
Matter of judicial notice and matters judicially

XPN: If the rule waived by the parties has been established by law on grounds of public policy, the waiver is
void. Accordingly, the waiver of the privilege against
disclosure of secrets is void.

Distinguish Proof from Evidence



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The effect when the requisite

quantum of evidence of a
particular fact has been duly
admitted and given weight

The mode and manner of

proving competent facts in
judicial proceedings

Note: By itself, prima facie evidence is sufficient to establish

the factum probandum if no evidence to the contrary appears.


T h e p r o b a t i v e e f f e c t o f The means of proof




Note: DNA testing results that exclude the putative parent

from paternity shall be conclusive proof of non-paternity. If
the value of the Probability of Paternity is less than 99.9%,
the results shall be considered as corroborative evidence. If
the value of the Probability of Paternity is 99.9% or higher,
there shall be a disputable presumption of paternity. (Rule on
DNA Evidence, Sec. 9, par. c)

What is Falsus in Uno, Falsus in Omnibus

It literally means false in one thing, false in everything.
The doctrine means that if the testimony of a witness on
a material issue is willfully false and given with an intention to deceive, the jury may disregard all the witness
testimony. However, this is not an absolute rule of law
and is in fact rarely applied in modern jurisprudence. It
deals only with the weight of the evidence and is not a
positive rule of law. It is not mandatory but merely sanctions a disregard of the testimony of a witness if the
circumstances so warrant.




Relevant Evidence - If it has a relation to the fact

in issue as to induce belief in its existence or nonexistence.
Note: Relevancy is determined by logic, human experience
and common sense. A simple test of relevancy is the ability
of evidence to persuade or if it can be of help to the factfinder in establishing the probability or improbability of a fact
in issue.


Material Evidence - It is directed to prove a fact

in issue as determined by the rule of substantive
law and pleadings.
Note: Materiality is whether the fact it intends to prove is in
issue or not.


Competent Evidence - One that is not excluded

by law or the rules in a particular case


Credible Evidence - It is not only admissible evidence but also believable and used by the court in
deciding a case. Evidence is credible, if worthy of

Corroborative Evidence - Additional evidence of

a different kind and character as that already given
and tends to prove the same proposition
Note: Under the Rule on Examination of a Child Witness,
corroboration shall not be required of a testimony of a child.
His testimony if credible by itself, shall be sufficient to support a finding of fact, conclusion or judgment subject to the
standard of proof required in criminal and non-criminal cases. (AM No. 007-07-SC, Sec. 22)

What are the classifications of evidence?

As to quality:

Conclusive Evidence - One which the law does

not allow to be contradicted or which is incontrovertible

Cumulative Evidence - One which is of the same

kind and character as that already given and tends
to prove the same proposition

As to its weight and acceptability:


Primary or Best Evidence - That which the law

regards as affording the greatest certainty of the
fact in question


Secondary or Substitutionary Evidence - That

which is inferior to primary evidence and is permitted by law only when the best evidence is not

As to nature:

Object Evidence - It is directly addressed to the

sense of the court. These are tangible things exhibited or demonstrated:

As to its ability to establish the fact in dispute:


Direct Evidence - One which proves the fact in

dispute without the aid of any inference or presumption


Circumstantial Evidence - Proof of a fact or

facts from which, taken singly or collectively, the
existence of the particular fact in dispute may be
inferred as a necessary or probably consequence
Note: As to probative value, the Court considers circumstantial evidence as being of a nature identical to direct evidence
because no greater degree of certainty is required when the
evidence is circumstantial than when it is direct.

As to the degree of its value in establishing a disputed fact:


Prima Facie Evidence - That which standing

alone unexplained or uncontradicted, is sufficient to
maintain the position affirmed

In open court
In an ocular inspection; or
At a place designated by the court for its view
of observation of an exhibition, experiment or


Documentary Evidence - It is supplied by written

instruments or derived form conventional symbols
and letters by which ideas are represented on material substances.


Testimonial Evidence - One which consists of the

narration or deposition by one who has observed or
has personal knowledge of that to which he is testifying.

Positive Evidence - when a witness affirms

in that a certain state of facts does exist or
that a certain event happened; greater probative value is given to positive evidence


Negative Evidence - when the witness

states that an event did not occur or that the
state of facts alleged to exist does not actually
Note: A denial is a negative evidence. it is considered
by the Court to be a very weak form of defense and



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can never overcome an affirmative or positive testimony particularly when the latter comes form the
mouth of a credible witness. It is negative and selfserving which cannot be given greater weight than
the testimony of credible witnesses.

Civil Cases

Rebuttal and Sur-rebuttal Evidence:




Rebuttal Evidence - It is that kind which is given

to explain, repel, counteract or disprove facts given
in evidence by the adverse party. It is evidence in
denial of some affirmative case or fact which the
adverse party has attempted to prove.
Sur-rebuttal Evidence - It is a reply to rebuttal
evidence. When the plaintiff in rebuttal is permitted
to introduce new matter, defendants should be
permitted to introduce evidence in sur-rebuttal, and
to decline to permit him to do so is error, especially
when the evidence in sur-rebuttal is for the first time
made competent by the evidence introduced by the
plaintiff in rebuttal , but defendant should as for the
right to meet the new matter.

Criminal Cases

The party having the burden The guilt of the accused has
of proof must prove his claim t o b e p r o v e n b e y o n d
b y p r e p o n d e r a n c e o f reasonable doubt
An offer of compromise is not
an admission of any liability,
and is not admissible in
evidence against the offendor

An offer of compromise by
the accused may be received
in evidence as an implied
admission of guilt

Generally, the concept of

presumption of innocence
does not apply, except in
cases specifically provided
for by law

The accused enjoys the

constitutional presumption of

General denial is allowed

General denial is not allowed

Judicial admission withdrawn W i t h d r a w n

b e c o m e s e x t r a j u d i c i a l inadmissible



Do the Rules of Evidence apply in cases covered

by the Rules on Summary Procedure?
Yes. In civil cases covered by the Rules on Summary
Procedure, where the parties are required to submit
position papers attaching thereto affidavits of witnesses,
thus obviating the application of the Rules on Testimonial Evidence, the rest of the Rules on Evidence still apply.
Therefore, any document or object evidence presented
by the parties in their respective position papers must
still conform to the Rules on Evidence.

Is corroborative evidence necessary to convict?

Corroborative testimony is not always required. The
testimony of a single prosecution witness, where credible and positive, is sufficient to prove beyond reasonable
doubt the guilt of the accused. There is no law which
requires that the testimony of a single witness has to be
corroborated, except where expressly mandated in determining the value and credibility of evidence. [People v.
Pabalan (1996)]

In criminal cases covered by the Rules on Summary

Procedure, while the affidavits of the parties and their
witnesses constitute their direct testimony, they may still
be subject to cross-examination, redirect or re-cross
examination. The Rules on Evidence still apply on any
document or object evidence presented.

Corroborative evidence is necessary only when there are

reasons to suspect that the witness falsified the truth or
that his observations are inaccurate.






What is the applicability of the Rules of Evidence?

The Rules of Evidence, as part of the Rules of Court,
apply only to judicial proceedings.
Administrative bodies are not bound by the technical
niceties of the rules obtaining in a court of law.
1. Election cases
2. Land registration cases
3. Cadastral proceedings
4. Naturalization proceedings
5. Insolvency proceedings
6. Other cases as may be provided for by law
Even if not bound by the technical rules of procedure,
the findings of facts of administrative bodies are, however, respected as long as they are supported by substantial evidence, even if such evidence is not overwhelming or preponderant.


Distinguish Evidence in Civil Cases from Evidence

in Criminal Cases


What is the scope of the Rules of Evidence?

The rules of evidence shall be the same in all courts and
in all trials and hearings, except as otherwise provided
by law or by these rules. It is guided by the principle of
uniformity. (Rule 128, Sec. 2)


Distinguish factum probandum from factum

Factum Probandum

Factum Probans

The ultimate fact sought to be


The intermediate facts

Proposition to be established

Materials which establish the




Every evidentiary question involves the relationship between the factum probandum, or the fact or proposition
to be established and factum probans, or the facts or
material evidencing the fact or proposition to be established.
Simply put, the factum probandum is the fact to be
proved or which is in issue and to which the evidence is



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directed. The factum probans is the probative or evidentiary fact tending to prove the fact in issue.
Matters of judicial notice, conclusive presumptions and
judicial admissions cannot qualify as parts of the factum
probandum of a particular case, because such matters
need not be established or proven..



How may factum probandum be ascertained?


In practical terms, what is the factum probandum

in a civil case?

Thus, a particular item of evidence may be admissible,

but its evidentiary weight depends on judicial evaluation
within the guidelines provided by the rules on evidence.
Stated in another way, the admissibility of evidence
should not be equated with the weight of the evidence.
The admissibility of the evidence depends on its relevance and competence while the weight of evidence
pertains to its tendency to convince and persuade.

Factum probandum in a civil case refers to the elements

of a cause of action from the point of view of the plaintiff
and the elements of the defense from the standpoint of
the defendant.

Q: In a suit for collection of a sum of money, in the absence of any admission by the defendant, what is the
factum probandum of both the plaintiff and the defendant?
A: For the plaintiff, the factum probandum would be:
the existence of the debt of the defendant
the maturity of the debt
the demand made by the plaintiff upon the defendant to pay
the failure to pay despite the demand


Distinguish admissible evidence from credible

Admissible Evidence

Credible Evidence

The evidence is of such a

character that the court,
pursuant to the rules of
evidence, is bound to receive
it or to allow it to be
introduced at the trial.

Refers to the worthiness of

belief, that quality which
renders a witness worthy of
belief. After the competence
of a witness is allowed, the
consideration of his credibility

What are the requisites for admissibility of evidence?


From the side of the defendant:

the fact of payment of the obligation or
the prescription of the debt or
the elements of any other defense he may interpose



In the probate of a will, which is a special proceeding, what is the factum probandum?
For the probate of a will, even if no person appears to
contest the allowance thereof, the court is still required
to grant allowance only if the will is proved to have been
executed as is required by law. (Rule 76, Sec. 5)

Relevance - It is such a relation to the fact in issue

as to induce belief in its existence or non-existence.
It is a matter of relationship between the evidence
and a fact in issue.
It is determined by logic, human experience and
common sense.
Note: Evidence on the credibility or lack of it of a witness is
always relevant. In every proceeding, the credibility of the
witness is always an issue.

What is the factum probandum in a criminal case?

The factum probandum includes all matters that the
prosecution must prove beyond reasonable doubt in
order to justify a conviction. Usually, they are the elements of the crime that is alleged or sought to be

Probative Value

Question of whether certain Question of whether the

pieces of evidence are to be admitted evidence proves an
considered at all

Pleadings submitted by the parties

Pre-trial order
Issues which are tried with the express or implied
consent of the parties (Rule 10, Sec. 5)
In criminal cases, when the accused enters a plea

Generally, if a fact is admitted, there is no more factum

probandum because there is no fact in issue. However,
the rules do not fix a standard in ascertaining the
probandum. It depends on the nature of the case presented before the courts

Distinguish admissibility of evidence from probative value of evidence



Competence - if not excluded by law or by the

rules. Unlike relevance, competence is determined
by law.

What are the two axioms of admissibility?


Axiom of relevancy - None but facts having rational probative value are admissible. It merely prescribes that whatever is presented as evidence
shall be presented on the hypothesis that it is calculated according to the prevailing standards of
reasoning to effect rational persuasion. In short, it
just means that the evidence must be relevant.
Components of relevancy:



Materiality - whether the evidence is offered

upon a matter properly in issue, or whether it
is directed towards a fact within the range of
allowable controversy
Probativeness - the tendency of evidence to
establish the proposition that it is offered to


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prove; to be relevant, it need not be conclusive, the evidence must merely help a little


Axiom of competency - Facts having rational

probative value are admissible unless some specific
rule forbids their admission. The rules of exclusion
are rules of exception to the general admissibility of
all that is rational and probative.

Likewise, as the but for test or taint doctrine which

means that the evidence would not have come to light
but for the illegal action of the police.

What are the kinds of admissibility of evidence?

Multiple - where evidence that is plainly relevant
and competent for two or more purposes will be
received if it satisfies all the requirements prescribed by law in order that it may be admissible for
the purpose for which it is presented, even if it does
not satisfy the other requisites of admissibility for
other purposes.


Conditional - where evidence appears to be immaterial is admitted by the court subject to the
condition that its connection with another fact subsequent to be proved will be established. Otherwise, such fact already received will be stricken off
the record at the initiative of the adverse party.


Curative - where evidence that is otherwise improper is admitted to contradict improper evidence
presented or introduced by the other party, to cure,
contradict or neutralize such improper evidence.
(fighting fire with fire)

b. It is not admissible in evidence because it was taken without

informing him of his custodial rights and without the assistance
of counsel which should be independent and competent and
preferable of the choice of the accused.

Note: It is submitted that in our jurisdiction, the principle of

curative admissibility should not be made to apply where the
evidence was admitted without objection because the failure
to object constitutes a waiver of the inadmissibility of the
evidence. It is only where the objection was incorrectly
overruled that the court should allow the other party to introduce curative evidence to contradict the evidence improperly admitted. Where there is a waiver, there is no defect to

Exclusionary Rules

Ex. Best Evidence Rule, Parol Scope (rights protected under

Evidence Rule and Hearsay Art. III Bill of Rights of the
1987 Constitution)
1. Right against unreasonable
search and seizure (Sec. 2)
2. Right to privacy and inviolability of communication
(Sec. 3)
3. Right of a person under
investigation for an offense
(Sec. 12)
4. Right against self incrimination (Sec. 17)

What is the doctrine of Fruit the Poisonous Tree

The doctrine speaks of that illegally seized documents,
papers, and things are inadmissible in evidence. The
exclusion of such evidence is the only practical means
of enforcing the constitutional injunction against unreasonable searches and seizures.
The doctrine applies where the evidence is secondary or
derivative. For instance, an illegal arrest may result in the
arrestee giving a confession. In such case, it is neces-

c. It is not admissible because it was made without the assistance of counsel of his choice.

Distinguish rules of exclusion from exclusionary

Rules of Exclusion

Sworn statement
Waiver of right to counsel

A: a. It is not admissible in evidence because it was seized without a proper search warrant. A warrantless search is not justified.
There was time to secure a search warrant.

Governed by the rules on Commonly used for evidence

excluded by the Constitution


Q: The barangay captain reported to the police that Richard

was illegally keeping in his house an armalite M16 rifle. On
the strength of that information, the police conducted a
search of the house of Richard and indeed found said rifle.
The police raiders seized the rifle and brought Richard to the
police station. During the investigation, he voluntarily signed
a sworn statement that he was in possession of said rifle
without license or authority to possess and waiver of right to
counsel. During the trial of Richard for illegal possession of
firearm, the prosecution submitted in evidence the rifle,
sworn statement and waiver of right to counsel. Individually
rule on the admissibility of evidence of the:




sary to determine whether the derivative evidence is

tainted with a constitutional violation, that is, whether the
evidence is a fruit of the poisonous tree.

Q: Acting on a tip by an informant, police officers stopped a

car being driven by Aissa and ordered her to open the trunk.
The officers found a bag containing several kilos of cocaine.
They seized the car and the cocaine as evidence and placed
her under arrest. Without advising her of her right to remain
silent and to have the assistance of an attorney, they questioned her regarding the cocaine. In reply, Aissa said, I
don't know anything about it. It isn't even my car. She was
charged with illegal possession of cocaine, a prohibited
drug. Upon motion of Aissa, the court suppressed the use of
cocaine as evidence and dismissed the charges against her.
Aissa commenced proceedings against the police for the
recovery of her car. In her direct examination, she testified
that she owned the car but had registered it in the name of a
friend for convenience. On cross-examination, the attorney
representing the police asked, After your arrest, did you not
tell the arresting officers that it wasnt your car? if you
were Aissas attorney, would you object to the question?
A: Yes, because her admission, made when she was questioned
after she was placed under arrest, was in violation of her constitutional right to be informed of her right to remain silent and to
have competent and independent counsel of her own choice.
Hence, it is inadmissible in evidence

Q: Sgt. Garcia of WPD arrested two NPA suspects, Max and

Brix, both aged 22, in the act of robbing a grocery in Ermita.
He noted a pistol tucked under Brixs shirt, which he
promptly confiscated. At the police investigation room, Max
and Brix orally waived their right to counsel and to remain
silent. Then under oath, they freely answered questions
asked by the police desk officer. Thereafter they signed their
sworn statements before the police captain, a lawyer. Max
admitted his part in the robbery, his possession of a pistol
and his ownership of the packet of shabu found in his pocket. Brix admitted his role in the robbery and his possession
of a dagger. But they denied being NPA hit men. In due
course, proper charges where filed by the city prosecutor
against both arrestees before the RTC. May the written
statements signed and sworn to by Max and Brix be admitted by the trial court as evidence for the prosecution?



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A: No, the sworn written statements of Max and Brix may not be
admitted in evidence because they were not assisted by counsel. Even if the police captain before whom they signed the
statements was a lawyer, he was not functioning as a lawyer, nor
can he be considered as an independent counsel. Waiver of the
right to a lawyer must be done in writing and in the presence of
independent counsel.



What are the requirements in order that an admission of guilt of an accused during a custodial
investigation be admitted in evidence?
The admission must be voluntary, made with the assistance of competent, independent counsel and express and it must be writing.


Waiver of the right to remain silent and right to counsel

must be in writing and executed with the assistance of
competent, independent counsel.

When May be Objected

Object Evidence

When the same is presented

for its view or evaluation, as
in ocular inspection or
demonstration, or when the
party rests his case and the
real evidence consists of
objects exhibited in court.


What is the rule on admissibility of electronic

An electronic document is admissible in evidence if (1) it
complies with the rules on admissibility prescribed by
the Rules of Court and related laws and (2) it is authenticated in the manner prescribed by the Rules on Electronic Evidence.


What are collateral matters?

Collateral matters refer to matters other than the fact in
issue. These are matters outside the controversy, or are
not directly connected with the principal matter or issue
in dispute, as indicated in the pleadings of the parties.

Concomitant - those accompanying the fact in

issue and pointing to it (ex. alibi, opportunity, incompatibility)


Retrospectant / Subsequent - those succeeding

the fact in issue but pointing backward to it (ex.
flight, concealment, fingerprints, bloodstains)

What is the rule on evidence on collateral matters?

Is non-flight evidence of innocence?

Likewise, flight per se is not synonymous with guilt and

must not always be attributed to ones consciousness of
guilt. Flight alone is not a reliable indicator of guilt without other circumstances.


Circumstantial evidence is that evidence that indirectly proves a fact in issue through an inference which the
fact finder draws form the evidence established. When
the evidence is circumstantial, a fact is established by
making an inference from a previously established fact.
When the court does not have to make an inference from
one fact to arrive at a conclusion, the evidence is direct.


When may circumstantial evidence be sufficient

for conviction in a criminal case?

Documentary Evidence



No. The fact that accused never fled the locality where
the crime was committed is not by itself a valid defense
against the prosecutions allegations because non-flight
does not signify innocence. It cannot be singularly considered as evidence or as a manifestation determinative
of innocence.

Testimonial Evidence

Formally offered by the At the time it is formally

p r o p o n e n t i m m e d i a t e l y offered
before he rests his case

Prospectant / Antecedent - those preceding the

fact in issue but pointing forward to it (ex. moral
character, motive, conspiracy)

XPN: When it tends in any reasonable degree to establish the probability or improbability of the fact in issue
(Rule 128, Sec. 4)

Can be made either at the

time it is presented in an
ocular inspection or
demonstrations or when it is
formally offered

By calling the witness to the 1. If the objection pertains to

the qualification of the
witness, it should be made
at the time he is called to
the stand.
2. If otherwise qualified,
objection should be raised
as soon as the objectionable question is asked or
after the answer is given if
the objection became
apparent by reason of such


GR: Evidence on collateral matters shall not be allowed.

When is the admissibility of evidence determined?

When Offered

What are the kinds of collateral matters?


There is more than one circumstance

The facts from which the inferences are derived are proven
The combination of all the circumstances is
such as to produce a conviction beyond reasonable

All the circumstances proved must be consistent with

each other, and they are to be taken together as proved.
A conviction based on circumstantial evidence must
exclude each and every hypothesis consistent with innocence.
Direct evidence is not indispensable to prove a crime
charged. In the absence of direct evidence, the prosecution may resort to adducing circumstantial evidence.
When the prosecutions evidence rests on circumstantial
evidence alone, it is imperative that the chain of circum-



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stances establish the guilt of the accused beyond reasonable doubt. This means that the circumstances
would allow no other conclusion other than the guilt of
the accused.

What are four basic guidelines in the appreciation

of circumstantial evidence? [People v. Ochate]


It should be acted upon with caution

All the essential facts must be consistent with the
hypothesis of guilt
The facts must exclude every other theory but that
of guilt
The facts must establish such a certainty of guilt of
the accused as to convince the judgment beyond a
reasonable doubt that the accused is the one who
committed the offense



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RULE 129

take judicial notice of the law prevailing in another country. Foreign laws must be alleged and proved.




The power to take judicial notice must be exercised with

caution and care must be taken that the requisite notoriety exists. Any reasonable doubt on the matter sought to
be judicially noticed must be resolved against the taking
of judicial notice.

What are the facts that need not be proved?


Immaterial allegations


Facts admitted or not denied provided they

have been sufficiently alleged (Rule 8, Sec. 1)


Those which the courts may take judicial notice

of (Rule 129)


Those that are judicially admitted (Rule 129)


Those that are conclusively presumed (Rule 131)


Those that are disputably presumed but uncontradicted (Rule 131)

How should judicial notice be exercised?


What are the kinds of judicial notice?



What is judicial notice?

Judicial notice is the cognizance of certain facts which
judges may properly take and act upon without proof
because they are supposed to be known to them. It is
based on considerations of expediency and convenience. It displaces evidence, being equivalent to proof.

Note: The Law of Nations is the compilation of rules which

by common consent of mankind have been acquiesced in
as law.


Judicial notice fulfills the objective which the evidence

intends to achieve. It is not equivalent to judicial knowledge or that which is based on the personal knowledge
of the court, rather, it is the cognizance of common
A judge is not justified in refusing to take judicial notice
of a fact which is not within his knowledge/memory if the
fact in question is subject of judicial cognizance.
Judicial notice may be taken of a fact which judges
ought to know because of their judicial functions. 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 fact, not generally or professionally known, the basis of his action.

Q: A resident American, who came here from Massachusetts, made a will where he stated that, in form, it is
executed in accordance with Massachusetts law. The will,
instituting his Filipino widow as his sole heir, would not be
valid in form under Philippine law. Upon his death, the widow presented the will to the Court of First Instance of Manila. Probate was objected to by distant relatives of the testator in California. The Judge had studied in Harvard and was
familiar with Massachusetts law. Without the introduction of
formal evidence, he granted probate, stating that the will
was, indeed, executed in accordance with Massachusetts
law. How should the matter be resolved on appeal?
A: The judgment should be reversed on appeal. The trial judge
erred when he took judicial notice of Massachusetts law on the
basis of his personal knowledge of the said law. The mere personal knowledge of the judge is not the judicial knowledge of the
court, and the judge is not authorized to make his individual
knowledge of a fact the basis of his action [State Prosecutors v.
Muro]. Besides, it is a basic rule that courts of the forum will not

Mandatory - if the fact sought to be proved are:

a. Existence and territorial extent of States
b. Political history, forms of government and
symbols of nationality
c. Law of nations
d. Admiralty and maritime courts of the world and
their seals
e. Political constitution and history of the Philippines
Official acts of legislative, executive and judicial departments of the Philippines
g. Laws of nature
h. Measure of time
Geographical divisions (Sec. 1)


Discretionary - a court may take judicial notice of

matters which are:
a. The matter must be one of common knowledge
b. The matter must be settled beyond reasonable
doubt (if there is any uncertainty about the
matter, then the evidence must be adduced)
c. The knowledge must exist within the jurisdiction of the court or that which judges ought to
know because of their judicial functions (Sec.
Mandatory Judicial Notice

Discretionary Judicial

Court is compelled to take

judicial notice

Court is not compelled to

take judicial notice

Takes place at the courts

own initiative

M a y b e a t c o u r t s o w n
initiative or on request of a

No hearing

Needs hearing and

presentation of evidence

What are the requisites of judicial notice?


The matter must be one of common and general

It must be well and authoritatively settled and
not doubtful or uncertain
It must be one which is not subject to a reasonable dispute in that it is either
a. Generally known within the territorial jurisdiction of the trial court
b. Capable of accurate and ready determination
by resorting to sources whose accuracy cannot reasonably be questionable

The principal guide in determining what facts may be

assumed to be judicially known is that of notoriety. The



10 / 65

test of notoriety is whether the fact involved is so notoriously known as to make it proper to assume its existence without proof. There must be unconditional acceptance by the public or that segment of the public where
the fact is of relevant importance.


It lays down the presumption that the foreign law is the

same as the law of the forum. It arises if the foreign law,
though properly applicable, is either not alleged, or if
alleged, is not duly proved before a competent court.

Note: The fact that a belief is not universal is not controlling for it
is seldom that any belief is accepted by everyone. It is enough
that the matters are familiarly known to the majority of mankind
or those persons familiar with the particular matter in question.


When parties in a case agree on what the foreign law

provides, these are admissions of fact which the other
parties and the court are made to rely and act upon;
hence they are in estoppel to subsequently take a contrary position.

When is a matter considered common knowledge?

They are those matters coming to the knowledge of men
generally in the course of 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.


Q: Explain briefly whether the RTC may, motu proprio, take

judicial notice of the following:




The street name of methamphetamine hydrochloride

Ordinances approved by municipalities under its territorial jurisdiction
Rules and regulations issues by quasi-judicial bodies
implementing statutes
Rape may be committed even in public places

c. Yes, because they are capable of unquestionable demonstration, unless the law itself considers such rules as an integral part
of the statute in which case judicial notice becomes mandatory.
d. Yes, the public setting of the rape is not an indication of
consent. The Supreme Court has taken judicial notice of the fact
that a man overcome by perversity and beastly passion chooses
neither time, place, occasion nor victim. (2005 Bar Question)

May courts take judicial notice of foreign laws?

GR: Foreign laws may not be taken judicial notice of,
and have to be proven like any other fact.
XPN: When said laws are within the actual knowledge of
the court and such laws are:
1. Well and generally known
2. Actually ruled upon in other cases before it; and
3. None of the parties claim otherwise
Q: Suppose a foreign law was pleaded as part of the defense
of the defendant but no evidence was presented to prove
the existence of said law, what is the presumption to be
taken by the court as to the wordings of said law?
A: The presumption is that the wordings of the foreign law are
the same as the local law (doctrine of processual presumption).

What is the rule on judicial notice of records of

another case previously tried?

1. When in the absence of any objection, with the
knowledge of the opposing party, the contents of
said other cases are clearly referred to by title and
number in a pending action and adopted or read
into the record of the latter
2. When the original record of the other case or any
part of it is actually withdrawn from the archives at
the courts discretion upon the request, or with the
consent, of the parties, and admitted as part of the
record of the pending case.
3. When the action is closely interrelated to another
case pending between the same parties
4. Where the interest of the public in ascertaining the
truth are of paramount importance
5. In cases seeking to determine what is reasonable
exercise of discretion or whether or not the previous ruling is applicable in a case under consideration
6. Where there is finality of a judgment in another case
that was previously pending determination and
therefore res judicata

b. In the absence of statutory authority, the RTC may not take

judicial notice of ordinances approved by municipalities under
their territorial jurisdiction, except on appeal form the MTCs
which took judicial notice of the ordinance in question (US v.
Blanco, 1917)

MTCs are required to take judicial notice of the

ordinances of the municipality or city wherein they
RTCs must take judicial notice only:
a. When expressly authorized to do so by statute
b. In case on appeal before them and wherein
the inferior court took judicial notice of an
ordinance involved in the same case
Appellate courts may also take judicial notice of
ordinances not only because the lower courts took
judicial notice thereof but because these are facts
capable of unquestionable demonstration.

GR: Courts are not authorized to take judicial notice of

the contents of the records of other cases, even when
such cases have been tried or are pending in the same
court, and notwithstanding the fact that both cases may
have been heard or are actually pending before the
same judge.

A: a. Yes, it may motu proprio take judicial notice of the fact that
the street name of methamphetamine hydrochloride is shabu,
considering the chemical composition of shabu.


What are the rules with regard to judicial notice of


Thus, facts which are universally known, and which may

be found in encyclopedia, 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. A court, however, cannot take
judicial notice of any fact which, in part, is dependent on
the existence or non-existence of a fact of which the
court has no constructive knowledge.

What is the doctrine of processual presumption?

Note: The exceptions are applicable only when the case is clearly referred to or the original or part thereof are actually withdrawn
from the archives and admitted as part of the record of the case
then pending.

Q: Anna and Badong were accused of killing Cathy. However, only Anna was arrested since Badong went into hiding.



11 / 65

After trial, Anna was acquitted of the charge in a decision

rendered by Judge Santos. Subsequently, Badong was arrested and brought to trial. After trial, Badong was found
guilty of homicide in a decision rendered by Judge Yantok,
the judge who replaces Judge Santos after the latter retired.
On appeal, Badong argues that Judge Yantok should have
taken judicial notice of the acquittal of Anna rendered by
Judge Santos. Is Badong correct?
A: No. The appreciation of one judge of the testimony of a certain witness is not binding on another judge who heard the testimony of the same witness on the same matter. Each magistrate
who hears the testimony of a witness is called upon to make his
own appreciation of the evidence. It is, therefore, illogical to
argue that because one judge made a conclusion in a certain
way with respect to one or more of the accused, it necessarily
dictates that the succeeding judge who heard the same case
against the other accused should automatically make the same
Note: All courts must take judicial notice of the decisions of the
Supreme Court as they are duly bound to know the rulings of the
highest tribunal and to apply them in the adjudication of cases,
jurisprudence being part of our judicial system.



Judicial admission is an admission, verbal or written,

made by a party in the course of the proceedings in the
same case, which does not require proof. (Sec. 4)

After Trial but Before

Judgment or on Appeal

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. (Sec. 3)

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.
(Sec. 3)







An appellate court is without authority to take notice or take into consideration the judicial records of
a case previously decided by the trial court upon
which said court did not have the opportunity to
An appellate court cannot consult the records in
another case to ascertain a fact not shown by the
records of the case before it but could go to its
other decisions for the law that is determinative of
or applicable to the case under review.
The Supreme Court can also take judicial notice of
its records in a previous case in connection with the
conduct of litigant or witness in a similar matter.
Lower courts, from the Court of Appeals down to
the lowest level, must take judicial notice of decisions of the Supreme Court, as they are in fact duty
bound to know the rulings of the high tribunal and
to apply them in the adjudication of cases, they
being part of the legal system.

Distinguish judicial admission from extrajudicial

Extrajudicial Admissions

Those made in the course of Those made out of court or in

the proceeding in the same a judicial proceeding other
than the one under
Do not require proof and may
be contradicted only by
showing that it was made
through palpable mistake or
that no such admission was

Regarded as evidence and

must be offered as such,
otherwise the court will not
consider it in deciding the

Judicial admissions need not Requires formal offer for it to

be offered in evidence since it be considered
is not evidence. It is superior
to evidence and shall be
considered by the court as

Note: Judicial notice of the age of the victim is improper, despite

the defense counsels admission, thereof acceding to the prosecutions motion. As required by Rule 129, Sec. 3 as to any other
matters such as age, a hearing is required before courts can take
judicial notice of such fact.

What are the rules on judicial notice before Appellate Courts?

It must be made by a party to the case or his

It must be made in the course of the proceedings in the same case
It can be verbal or written admission. There is no
particular form required

Judicial Admissions

Hearing is necessary in the foregoing instances to afford

the parties reasonable opportunity to present information relevant to the propriety of taking such judicial notice or the tenor of the matter to be judicially noticed.


What are the elements of judicial admission?


In discretionary judicial notice, when is hearing

During Trial

What is judicial admission?


Conclusive upon the admitter


Admissible even if self


Not admissible if self-serving

Subject to cross-examination

Not subject to cross


How can judicial admission be contradicted?

It may be contradicted by showing:


That it was made through palpable mistake

That no such admission was made
To prevent manifest injustice

When are judicial admissions made?

It may be made by the party himself or by his counsel:


In the pleadings filed by the parties

In the course of the trial either by verbal or written
manifestations or stipulations, including depositions, written interrogatories and requests for admissions
In other stages of the judicial proceedings, as in

Other cases of judicial admissions:


When there is failure to deny the allegations in the

other partys pleadings
Negative pregnant

Two situations in criminal cases:






If it is a criminal case undergoing trial, the judicial

admission by counsel can be received in evidence
against the defendant even though against the
conformity of said defendant or even without his
In the course of pre-trial conference, any admission
must be reduced in writing and signed by both the
defendant and his counsel before the admission
cab be received in evidence (Rule 118, Sec. 2)

sions in open court and in pleadings actually filed

with the court


If written admission - file a motion to withdraw such

pleading, or any other written instrument containing
such admission


GR: The facts alleged in a partys pleadings are deemed

admissions and are binding upon that party.
XPN: Not all admissions in pleadings in civil cases may
be considered as judicial admissions because a party
litigant is allowed to make admissions which are merely
hypothetical in nature, as when a defendant moves to
dismiss the case based on lack of jurisdiction or sets up
affirmative defenses.
Admissions in a pleading which had been withdrawn or
superseded by an amended pleading, although filed in
the same case, are considered as extrajudicial admissions. The original pleading must be proved by the party
who relies thereon by formally offering it in evidence.



Judicial admissions made in one case are admissible at

the trial of another case provided they are proved and
are pertinent to the issue involved in the latter, unless:



What is the rule on actionable documents?

When a partys action is founded on a written instrument, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath specifically denies it and sets forth what
he claims to be the facts.


What is the rule on specific denial?

By specific denial is meant that the defendant must
specify each material allegation of fact the truth of which
he does not admit and, whenever practicable, shall set
forth the substance of the matters upon which he relies
to support his denial, otherwise the denial becomes a
general denial which amounts to an admission of the
allegations in the complaint and justifies a summary

Admissions made in pleadings that have been dismissed

are merely extrajudicial admissions.
What is the rule on judicial admissions in one case
in relation to another case?

Are admissions made during a pre-trial in a civil

case considered as judicial admissions?
Yes. Admissions made in the pre-trial are deemed judicial admissions because they are made in the course of
the proceedings of the case.

Where the complaint is amended, it loses its status as a

pleading and ceases to be a judicial admission. What
constitutes admissions are those stated in the amended


Are judicial admissions made by the accused during his arraignment binding upon him?
No. A plea of guilty entered by the accused may be later
withdrawn at any time before the judgment of conviction
becomes final. Such plea is not admissible in evidence
against the accused and is not even considered as an
extrajudicial admission.

If oral admission - The counsel may move for the

exclusion of such admission

What are the rules on admissions made in pleadings?

Is self-serving rule applicable in judicial admissions?

No. The self-serving rule which prohibits the admission
of declaration of a witness applies only to extrajudicial
admissions. If the declaration is made in open court,
such is raw evidence. It is not self-serving. It is admissible because the witness may be cross-examined on that

What remedy is available to a party who have a

judicial admission?


12 / 65

The said admissions were made only for purposes

of the first case, as in the rule of implied admissions
and their effects under Rule 26
The same were withdrawn with the permission of
the court therein
The court deems it proper to relieve the party therefrom

What are the rules on admissions made in pleadings which were not filed with the court?

If signed by the party litigant himself - considered

as extrajudicial admission


If signed by the counsel - not admissible because a

counsel only binds his client with respect to admis-



13 / 65

RULE 128

object evidence is generally somewhat different from

that needed for demonstrative evidence.


For object evidence, the required foundation relates to

proving that the evidence is indeed the object used in
the underlying event.
The foundation for demonstrative evidence, by contrast,
does not involve showing that the object was the one
used in the underlying event. Rather, the foundation
generally involves showing that the demonstrative object
fairly represents or illustrates what it is alleged to illustrate. For instance, where a drawing is presented to
illustrate the relative positions of the protagonists and
witnesses to a killing, the foundation will normally consist of testimony by one or more eyewitnesses or investigators showing that the drawing does indeed fairly
represent the positions of those present at the event.


What is the meaning of object evidence?

Object or Real Evidence as defined by the Rules of
Court refers to evidence that is addressed to the senses
of the court. It may consist of articles or persons, which
may be exhibited inside or outside the courtroom. It may
also consist in the mere inspection of an object. It is not
limited to view of an object but extends to visual, auditory, tactile, gustatory, olfactory.


What are the requisites for the admissibility of

object evidence?

Relevance - The object must be relevant to the

issue. For instance, in a murder case, the prosecution offered into evidence a gun. Without a showing
that the gun has at least some connection to the
crime (e.g. that it was found at the scene), the gun
is irrelevant. Thus, there must be a logical nexus
between the evidence and the point on which it is


Authentic - The object must be authenticated

before it is admitted. Authentication normally consists of showing that the object is the object that
was involved in the underlying event. And, when the
exhibition of an object is intended to establish its
condition at a previous time, it must be proved first
that form that time the object suffered no substantial change in its condition. Upon the trial for murder, for instance, a portion of the skull of the deceased is not admissible in evidence, where it has
been buried for a long time and the evidence does
not clearly show that it is in the same condition that
it was at the time of the burial.


The object must not be hearsay


The object must not be privileged


It must meet any additional requirement set by

law (ex. it must not be the result of an illegal search
and seizure)

Object or real evidence is exactly what its name suggests. It is the real thing itself like the knife used to slash
the victims throat, the right actually stolen by the accused, etcetera. It consists of tangible things.
Object evidence is also known as:

Real evidence
Demonstrative evidence
Autoptic proference
Physical evidence

Physical evidence is evidence of the highest order. It

speaks more eloquently than a hundred witnesses.


What are the classes of object evidence?


Direct - evidence can prove directly the fact for

which it is offered. (Ex. In a personal injury case, the
direct real evidence of disfiguring injury would be
an exhibition to the court of the injury itself)


Circumstantial - facts about the object are proved

as the basis for an inference that other facts are
true. (Ex. In a paternity case, a baby may be shown
and the appearance will be compared with that of
the alleged father; if they look alike, the court may
then draw an inference that the parental relationship exists)

Distinguish object evidence from demonstrative

Object evidence is a tangible object that played some
actual role in the matter that gave rise to the litigation.
For instance, the knife used in the altercation that forms
the basis for the lawsuit.
Demonstrative evidence, by contrast, is tangible evidence that merely illustrates a matter of importance in
the litigation. Common types of demonstrative evidence
include maps, diagrams, models, summaries, and other
materials created especially for the litigation.
The distinction is important because it helps determine
the standards that the evidence must meet to be admissible. In particular, the foundation that must be laid for


What is the purpose of authentication?

It is to prevent the introduction of an object different
form the one testified about and to ensure that there has
been no significant changes in the objects condition.


What are the categories of object evidence?

For purposes of authentication of an object, object evidence may be classified into:

Unique objects - Objects that have readily identifiable marks (ex. a caliber 38 revolver with a serial


Objects made unique - Objects that are made

readily identifiable (ex. a typical kitchen knife which
the witness can readily identify in court if he claims



14 / 65
A: No. The object of all evidence is to inform the trial tribunal of
the material facts, which are relevant as bearing upon the issue,
in order that the truth may be elicited and that a just determination of the controversy may be reached. But object evidence has
to be kept within reasonable limits by the exercise of a fair judicial discretion. It should be only of a nature to assist the court to
an understanding of a situation, of an act, or to comprehend
objective symptoms resulting from an injury. If the objective is to
arouse the prejudice and inflame the passions of the court into
an angry resentment against the author of a crime, it far overbalances any legitimate purpose for which the exhibit might have
been made.

that he made the thing acquire a unique characteristic by placing identifying marks thereon)

Non-unique objects - Objects with no identifying

marks and cannot be marked (ex. drops of blood or
oil, drugs in power form, fiber)

Under the third category, the proponent of the evidence

must establish a chain of custody. The links to the
chain are the people who actually handled or had custody of the object. Each of them must show how he
received the object, how he handled it to prevent substitution and how it was transferred to another.


What is the chain of custody method of authentication?

A problem arises when an object has passed among
other hands since the time it was taken or found that it
becomes essential to identify it as the same item. Under
this situation, the necessity of establishing a chain of
custody comes into play. It requires that every link in
the chain of custody or every person who handled or
possessed he object since it was first recognized as
being relevant to the case, must explain what he did with

Yes. The court can go to the place where the object is

located, when the object evidence cannot be brought to
court because it is immovable or inconvenient to remove.
The inspection or view outside the courtroom is a part of
the trial. Inasmuch as evidence is thereby being received, such inspection should be made in the presence
of the parties or at least with previous notice to them of
the time and place set for the view.

The primary reason for the elaborate chain of custody

method is to prevent or at least discourage tampering
with evidence.

Q: Discuss the chain of custody in drug-related cases

What are the limitations against the use of object



The limitations against the use of object evidence may

be classified into:

Inherent limitations - when the object is relevant

to the fact in issue, it may be exhibited, examined
or viewed by the court. Thus it excludes the following:
a. Irrelevant evidence
b. Illegally obtained evidence


Non-inherent limitations - Relevant evidence

may be excluded on the ground that although relevant and authentic, its probative value is exceeded
by its prejudicial effect such as the following:
a. Indecency and impropriety
b. Undue prejudice
c. Offensiveness to sensibilities
d. Inconvenience and unnecessary expenses
e. Confusing or misleading

But when the exhibition is necessary to the ends of justice, notions of decency and delicacy of feeling will not
be allowed to prevail.

Q: May object evidence be introduced for the purpose of

arousing undue prejudice?

May the personal appearance of a person be taken in consideration to establish proof of resemblance, race, age or parentage?
It has been held that to determine whether a person is
an alien or not, his personal appearance, ethnological
and racial characteristics, language, customs, dress and
manners may be taken into consideration. The age of a
person may also be determined by his personal appearance. The resemblance between a minor and his alleged
father is competent and material evidence to establish
parentage. However, the absence of such resemblance
would not be sufficient to show that parentage does not

A: The existence of the drug is the very corpus delicti of the

crime of illegal possession of dangerous drugs and thus a condition sine qua non for conviction. In order to establish the existence of the drug, its chain of custody must be sufficiently established. The chain of custody requirement is essential to ensure
that doubts regarding the identity of the evidence are removed
through the monitoring and tracking of the movements of the
seized drugs from the accused, to the police, to the forensic
chemist and finally to the court.


Is ocular inspection of object evidence or view


May the accused in a criminal case be compelled

to submit himself to an inspection of his body?
It is a well-settled rule in this jurisdiction that the accused may be compelled to submit himself to an inspection of his body for the purpose of ascertaining identity
or for other purposes. The prohibition of compelling a
man in a criminal court to be a witness against himself is
a prohibition of the use of physical or moral compulsion
to extort communications from him, not an exclusion of
his body as evidence when it may be material. The constitutional right extends only to testimonial compulsion
and not when the body of the accused is proposed to be
examined. [Stonehill v. Diokno]


What is documentary evidence?

Documentary Evidence is evidence supplied by written instruments, or derived from conventional symbols,
such as letters, by which ideas are represented on material substances, documents produced for the inspection
of the court or judge. It includes books, papers, accounts and the like. Under Rule 130, Sec. 2, documen-



15 / 65

tary evidence consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their

office (Rule 130, Sec. 7). Reason: Immovability of

the public record. Secondary evidence may consist
of the certified true copy of the document and the
official publication thereof.

A document may constitute as object evidence and as

documentary evidence depending on the purpose for
which the document is tendered.

The non-production of the original document unless

justified gives rise to the presumption of suppression of

If it is produced without regard to the message which it

contains, it is treated as object, not documentary evidence. In such case, the best evidence rule does not

In addition to the best evidence rule, if the document

contains a material alteration, the offeror must account
for the alteration and if a portion of the document is
introduced by a party, the adverse party can inquire on,
or introduce the remaining portions of the document
(theory of indivisibility of evidence)

If a document is offered to prove what is written on it,

then the document will be treated as documentary evidence. Accordingly, the best evidence rule may be invoked.


What are the purposes of the best evidence rule?


To prevent fraud - If a party is in possession of

such evidence and withholds it, and seeks to substitute inferior evidence in its place, the presumption naturally arises that the better evidence is
withheld for fraudulent purposes which its production would expose and defeat.


To exclude uncertainties in the contents of a

document - The best evidence rule accepts the
document itself as the best evidence of its contents, because it is certain, and rejects a copy
thereof because of the uncertainty of its contents
caused by the hazards of faulty duplication, or an
oral description thereof, and frailties of human recollection.



What is the best evidence rule?

The best evidence rule has nothing to do with the degree
of its probative value in relation to other types of evidence. It is not intended to mean the most superior
evidence. More accurately, it is the original document
rule or the primary evidence rule
This rule applies to documentary evidence only, or a
document presented as proof of its contents. It does not
apply where there is no bona fide dispute on the contents of documents and no useful purpose would be
served by its production.



What are the exceptions to the best evidence


When the original has been lost or destroyed or

cannot be produced in court, without bad faith
on the part of the offeror (Rule 130, Sec. 5)


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 (Rule 130, Sec. 6)

On the question as to whether the dispatch sent or the

dispatch received is the best evidence of the message,
the better rule is that it depends on the issue to be


Even in criminal cases, there must still be a request

for production of document even if it be in the possession of the accused and if he refuses to produce
it invoking his constitutional right against self-incrimination, then the secondary evidence may be







The voluminous character of the records must

be established
Such records must be made accessible to the
adverse party so that their correctness may be
tested on cross-examination

When the original is a public record in the custody of a public officer or is recorded in a public

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

In libel cases:

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.

What is the best evidence rule with respect to

telegrams and cables; in libel cases?

If the issue is with respect to the contents of the

articles sent by the accused for publication, the
manuscript is the best evidence
If the issue is with respect to what was actually
published, a copy of the newspaper publication is
the best evidence

In what cases does the best evidence rule do not


When the purpose is to show the existence, execution or delivery without reference to its terms
To make testimony coherent and intelligible
To admissions as to contents of writing and
where subject of preliminary cross examination,
to lay the basis for confrontation





16 / 65

Where there is no bona fide dispute on the contents of documents and no useful purpose
would be served by its production.



When the contents of a writing are to be proved, the

original is required. According to Rule 130, Sec. 4, the
original of a document constitutes:









What is the rule on duplicate originals?



When may secondary evidence be allowed?

When the original has been lost or destroyed or cannot
be produced in court without bad faith on the part of the
offeror, secondary proof of its contents may be allowed.
(Rule 130, Sec. 5)



What are the requisites for the presentation of

secondary evidence?

Proof of the existence of the original

Proof of execution of the original
Cause of unavailability or loss of the original

How may the contents of a document be proven?



What is the best evidence rule as applied to electronic documents?


All duplicates or counterparts of a lost or destroyed

document must be accounted for before using copies
thereof. Reason: Since all the duplicates or multiplicates
are parts of the writing to be proved.

A genuine question is raised as to the authenticity

of the original
In the circumstances it would be unjust or inequitable to admit a copy in lieu of the original

An electronic document shall be regarded as the equivalent of an original document under the best evidence
rule if it is a printout or output readable by sight or other
means, shown to reflect the data accurately (Rules on
Electronic Evidence, Rule 4, Sec. 1)

Any person who knew the fact of loss

Anyone who has made a sufficient examination in
the place/s where the document or papers of similar character are usually kept by the persons in
whose custody the document lost was and has
been unable to find it
Anyone who has made investigation which is sufficient to satisfy the court that the instrument is indeed lost

The loss or destruction of the document need not be

proved beyond the possibility of mistake. It is enough if
the testimony satisfies the court of the fact with reasonable certainty.

WHen a document is in two or more copies when executed at or about the same time with identical contents,
or is a counterpart produced by the same impression as
the original, or from the same matrix or by mechanical or
electronic re-recording, or by chemical reproduction or
by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be
regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall
not be admissible to the same extent as the original if:

Any person/s who executed the document

Any person/s to whom the parties to the instrument
had previously confessed the execution thereof
Any person/s before whom its execution was acknowledged
Any person/s who was present and saw it executed
and delivered
Any person/s who after its execution and delivery,
saw it and recognized the signatures

How may the loss or destruction of a document be


A copy of the original document may not be used without accounting for the other original copies. It must appear that all of them have been lost or destroyed or cannot be produced before secondary evidence can be
given by anyone.

How may the execution of a document be proven?

What is the original of a document?

The original of a document is one the contents of

which are the subject of inquiry
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
When an entry is repeated in the regular course
of business, one being copied from another at or

Proof of contents through secondary evidence



Any person who signed the document

Any person who read the document
Any person who heard it read knowing or it being
proved from other sources that the document so
read was the one in question
Any person who was present when the contents of
the document were talked over between the parties
thereto to such an extent as to give him reasonably
full information as to its contents
Any person to whom the parties to the instrument
have confessed or stated the contents thereof

What is the rule when the original document is in

the adverse partys custody or control?
It is not necessary to show that the original is in the actual possession of his adversary. It is enough that the
circumstances are such as to indicate that the writing is
in his possession.
If there is failure to produce the original despite reasonable notice, the adverse party is afterwards forbidden to
produce the document in order to contradict the other
partys copy or evidence of its contents or it may also be
regarded as a judicial admission in advance of the correctness of the first partys evidence. It also gives rise to
the presumption of suppression of evidence.
Even in criminal cases, there must still be a request for
the production of document even if it be in the posses-




17 / 65

sion of the accused and if he refuses to produce it invoking his constitutional right against self-incrimination,
then the secondary evidence may be introduced.

ties and their successors in interest, no evidence of such

terms other than the contents of the written agreement.
(Rule 130, Sec. 9)

In what order must secondary evidence be presented?

XPN: A party may present evidence to modify, explain or

add to the terms of the written agreement if he puts in
issue in his pleading:


Copy of the contents of the original

Recital of contents in some authentic document
Recollection of witnesses (Rule 130, Sec. 5)

The hierarchy of preferred secondary evidence must be

strictly followed.

What is the rule as regards admissibility of original and secondary evidence when they are public
When the original is a public record in the custody of a
public officer or is recorded in a public office, its contents may be proved by secondary evidence which may
consist of:

Certified true copy issued by the public officer in

custody thereof
Official publication

When the original is outside the jurisdiction of the court,

as when it is in a foreign country, secondary evidence is
(100) If the party against whom the secondary evidence is
offered does not object thereto when the same is offered
in evidence, the secondary evidence becomes primary
(101) Is the party who calls for the production of the
document bound to offer it as evidence?
No, the party who sought the production of a document
is not obliged to offer it as evidence. Likewise, when a
document is produced, it is not necessarily admissible in
evidence unless the requisites for admissibility are
present. (Rule 130, Sec. 8)
(102) Distinguish production of documents for purposes
of evidence vis-a-vis production of documents as
a mode of discovery
Sec. 8, Rule 130 (Evidence)

Rule 27 (Mode of Discovery)

Procured by mere notice to

the adverse party, which is a
condition precedent for the
subsequent introduction of
secondary evidence by the

Made by proper motion in the

trial court and is permitted
only upon good cause

Presupposes that the

document to be produces is
intended as evidence for the
proponent who is presumed
to have knowledge of its

Contemplates a situation
wherein the document is
either assumed to be
favorable to the party in
possession thereof or that the
party seeking its production is
not sufficiently informed of the
contents of the same.


(103) What is the rule as regards written agreements?
GR: When the terms of an agreement have been reduced into writing, it is considered as containing all the
terms agreed upon and there can be, between the par-


The failure of the written agreement to express the true intent of the parties thereto
An intrinsic ambiguity, mistake or imperfection in the written agreement
The validity of the written agreement
The existence of other terms agreed to by the
parties or their successors in interest after the
execution of the written agreement

The term agreement includes wills. (Rule 130, Sec. 9)

(104) What is parol evidence?
Any evidence aliunde (extrinsic evidence) which is intended or tends to vary or contradict a complete and
enforceable agreement embodied in a document.
(105) What is the purpose of the parol evidence rule?

To give stability to a written agreement

To remove the temptation and possibility of perjury
To prevent possible fraud

(106) What are the requisites for the application of the

parol evidence rule?

There must be a valid contract

The terms of the agreement must be reduced to
The dispute is between parties and their successors in interest; and/or
There is dispute as to the terms of the agreement

Not all writings will trigger the application of the parol

evidence rule. The writing must embody an agreement.
When no timely objection or protest is made to the admission of parol evidence, and when the motion to strike
out said evidence came too late and if the other party
against whom such evidence was presented cross-examined the witness who testified in respect to the contract, said party will be understood to have waived the
benefits of the law. Parol evidence under those facts is
competent and admissible.
(107) When may the parol evidence rule apply?
GR: The parol evidence rule applies only to integrated
agreements, or those intended by both parties as the
final and exclusive written memorial of their agreement.
It is based on the theory of integration of jural acts,
wherein previous acts and contemporaneous transactions of the parties are deemed integrated and merged in
the written instrument which they have executed. When
the parties have reduced their agreement to writing, it is
presumed that they have made the writing the only
repository and memorial of the truth, and whatever is not
found in the writing must be understood to have been
waived and abandoned.
XPN: The parol evidence rule may also apply to collateral oral agreements. A contract made prior to or contem-



18 / 65

poraneous with another agreement and if oral and not

inconsistent with the written contract it is admissible
within the exception to parol evidence rule.


It is not a part of the integrated written agreement

in any way
It is not inconsistent with the written agreement in
any way, including both the express and implied
provisions of the written agreement
It is not closely connected with the principal transaction as to form part and parcel thereof

The parol evidence rule does not apply when the collateral oral agreement refers to separate and distinct subjects. Reason: The parties to a contract cannot be presumed to have embodied in a single writing all the
agreements which they had on different subjects.
(108) What is the rule on ambiguities?
Intrinsic or latent ambiguity - when the writing on its face
appears clear an unambiguous, but there are collateral
matters or circumstances which make the meaning uncertain.
Extrinsic or patent ambiguity - ambiguity is apparent on
the face of the writing itself and requires something to be
added in order to ascertain the meaning of the words
Intermediate ambiguity - where the ambiguity consists in
the use of equivocal words designating the person or
subject matter, parol evidence of collateral or extrinsic
matter may be introduced for the purpose of aiding the
court in arriving at the meaning of the language used.


It should be mutual or common to both parties to

the instrument
It should be alleged and proved by clear and convincing evidence

Mistake of fact is a mistake not caused by the neglect of

a legal duty on the part of the person making the mistake
Mistake of law happens when a party, having full knowledge of the facts, comes to an erroneous conclusion as
to their legal effects.
The ground that the written agreement fails to express
the true intent of the parties can only be invoked when
the contract is literally ambiguous or obscure in its terms
and that the contractual intention of the parties cannot
be understood from the mere reading of the instrument.
(111) What is the rule on imperfection?
Where a writing, although embodying an agreement, is
manifestly incomplete, and is not intended by the parties
to exhibit the whole agreement, but only to define some
of its terms, the writing is conclusive as far as it goes.
But such parts of the actual contract as are not embraced within its scope may be established by parol
Imperfection includes an inaccurate statement in the
agreement or incompleteness in the writing, or the presence of inconsistent provisions therein.
(112) What is the rule on conditional agreements?

Intrinsic and intermediate ambiguities are curable by

evidence aliunde or extraneous evidence

Conditions precedent - may be established by parol

evidence because there is no varying of the terms of the
written contract by extrinsic agreement for the reason
that there is no contract in existence; there is nothing to
which to apply the excluding rule.

A patent ambiguity cannot be cured by evidence aliunde.

Conditions subsequent - may not be established by

parol evidence.

(109) What is the principle of falsa demonstratio non

nocet cum de corpore constat?

(113) DIstinguish parol evidence rule from best evidence rule

An erroneous description does not spoil the act. False

description does not injure or vitiate a document, provided that the thing or person intended has once been
sufficiently described.
Where there are two descriptions in a deed, the one
having been superadded to the other, and one description being complete and sufficient of itself while the
other which is subordinate and superadded is incorrect,
the incorrect description or feature of circumstance of
the description is rejected as surplusage, and the complete and correct description is allowed to stand alone.
(110) What is the rule on mistake?
Parol evidence is admissible to prove mistake in the
execution of a written agreement. Ratio: It would be
unjust and inequitable to allow the enforcement of a
written instrument which does not reflect or disclose the
real meeting of the minds of the parties.

It should be a mistake of fact and not a mistake of


Parol Evidence Rule

Best Evidence Rule

Presupposes that the original

is available in court

Contemplates a situation
where the original is not
available in court and/or there
is a dispute as to whether
said writing is the original

Prohibits the varying of the Prohibits the introduction of

terms of a written agreement
substitutionary evidence in
lieu of the original document
regardless of whether or not it
varies the contents of the
Can be invoked only when the
controversy is between the
parties to the written
agreement, their privies, or
any party directly affected

Can be invoked by any party

to an action regardless of
whether such party
participated or not in the
writing involved.

With the exception of wills, Applies to all kinds of writing/

applies only to documents document provided that the
which are contractual in content is the issue.

(114) The parol evidence rule is not applicable to a mere receipt, unless that receipt can qualify as a valid and en-



19 / 65

forceable contract. Hence, as to a receipt being given for

the payment of rent due on the lease, parol evidence is
admissible to show that the payment was made by note.
(115) The parol evidence rule does not apply and may not
properly be invoked by either party to the litigation
against the other, where at least one party to the suit is
not a party or privy of a party to the written instrument in
question and does not base a claim or assert a right
originating in the instrument of the relation established

(116) Interpretation of a writing according to its legal
meaning (Sec. 10). The language of a writing is to be
interpreted according to the legal meaning it bears in the
place of its execution, unless the parties intended otherwise.
(117) Instrument construes as to give effect to all provisions (Sec. 11). In the construction of an instrument
where there are several provisions or particulars, such
construction is, if possible, to be adopted as will give
effect to all.
(118) Interpretation according to intention; general and
particular provisions (Sec. 12). In the construction of
an instrument, the intention of the parties is to be pursued; and when a general and particular provision are
inconsistent, the general is paramount to the particular.
So a particular intent will control a general one that is
inconsistent with it.
(119) Interpretation according to circumstances (Sec.
13). For the proper construction of an instrument, the
circumstances under which it was made, including the
situation of the subject thereof and of the parties to it,
may be shown, so that the judge may be placed in the
position of those whose language he is to interpret.
(120) Peculiar signification of terms (Sec. 14). The terms
of a writing are presumed to have been used in their
primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the
agreement must be construed accordingly.
(121) Written words control printed (Sec. 15). When an
instrument consists partly of written words and partly of
a printed form, and the two are inconsistent, the written
controls the printed.
(122) Experts and interpreters to be used in explaining
certain writings (Sec. 16). When the characters in
which an instrument is written are difficult to be deciphered, or the language is not understood by the court,
the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to
declare the characters or the meaning of the language.

(123) Of two constructions, which preferred (Sec. 17).

When the terms of an agreement have been intended in
a different sense by the different parties to it, that sense
is to prevail against either party in which he supposed
the other understood it, and when different constructions are otherwise equally proper, that is to be taken
which is the most favorable to the party whose favor the
provision was made.
(124) Construction in favor of a natural right (Sec. 18).
When an instrument is equally susceptible of two interpretations, one if favor of a natural right and the other
against it, the former is to be adopted.
(125) Interpretation according to usage (Sec. 19). An instrument may be construed according to usage, in order
to determine its true character.

(126) What is testimonial evidence?
Testimonial or oral evidence is evidence elicited from
the mouth of a witness as distinguished from real and
documentary evidence. It is sometimes called viva voce
evidence which literally means living voice or by word
of mouth.
(127) What is meant by the term witness?
As used in the law of evidence, the term witness has
reference to a person who testifies in a case or gives
evidence before a judicial tribunal.

(128) What is meant by competency of witness?
By competency of witnesses is meant the legal fitness or
ability of a witness to be heard on the trial of a case.
(129) Differentiate competency from credibility of a


Competence is a matter of
law or in this jurisdiction also
a matter of rule. In deciding
the competence of a witness,
the court will not inquire into
the trustworthiness of the

Credibility of the witness has

nothing to do with law or the
rules. It refers to the weight
and the trustworthiness or
reliability of the testimony.

Accordingly, a prevaricating witness or one who has given contradicting testimony is still a competent witness

(130) What is the presumption as to the competency of

a witness?
Presumption of competency. As a general rule, when
a witness takes the stand to testify, the law, on ground of
public policy, presumes that he is competent. Hence,
insofar as competency is concerned, if the evidence is in
equipoise, the witness should be permitted to testify.
The court certainly cannot reject the witness if there is



20 / 65

no proof of his incompetency. The burden, is, therefore,

upon the party objecting to the competency of a witness
to establish the grounds of incompetency.
XPN: There is prima facie evidence of incompetency in
the following:

The fact that a person has been recently found of

unsound mind by a court of competent jurisdiction
That one is an inmate of an asylum for the insane

(137) When must be the objection to the competency of

a witness be made?

(131) What is the test of competency?

The test is whether the individual has sufficient understanding to appreciate the nature and obligation of an
oath and sufficient capacity to observe and describe the
facts in regard to which he is called to testify.
(132) Who determines the competency of a witness?
The judge alone. The decision of competency of a witness rests primarily with the trial judge, who sees the
proposed witness, notices his manner, his apparent
possession or lack of intelligence, and may resort to any
examination which will tend to disclose his capacity and
intelligence as well as his understanding of the obligations of an oath.
(133) Who determines the credibility of witnesses?
The judge alone. The decision of competency of Questions concerning the credibility of a witness are best
addressed to the sound discretion of the trial court as it
is in the best position to observe his demeanor and bodily movements. The Supreme Court generally defers to
the trial courts assessment because it has the singular
opportunity to observe the demeanor of witnesses and
their manner of testifying.
(134) What is a voir dire examination?
It is a competency examination or a preliminary examination conducted by the trial judge where the witness is duly sworn to answer as to his competency.
(135) What is a citizens testimonial duty?
GR: Every competent person under the process of subpoena by the duly constituted courts of the country may
be compelled to appear and testify.
XPN: The following are not bound even if subpoenaed:


Chief Executive / President

Judges of superior courts
Members of Congress during sessions
Consuls and other diplomatic officials when there is
a treaty holding them exempt
Witness who resides more than 100 kilometers
away form his residence to the place where he is to
testify by the ordinary course of travel
A detention prisoner if no permission of the court in
which his case is pending was obtained

(136) May the determination of the trial court as to the

competency of a witness be disturbed on appeal
of the case?
As the judge of the trial court is the one who hears the
witnesses, observes the manner in which they testify,

notices their apparent possession or lack of intelligence,

and may resort to any examination to find out the capacity as well as understanding of a witness, and as these
matters can not be photographed into the record of the
case, the decision of the trial judge on the competency
of the witness will not be disturbed on appeal unless
form that which is preserved it is clear that it was erroneous.

The objection to the competency of a witness must be




Before he has given any testimony if a party

knows before the trial that the witness is incompetent
If the incompetency appears on the trial, the objection must be interposed as soon as it becomes
When the incompetency of a witness is only partial, the objection need not be raised until he is
asked to testify to those matters as to which he
is incapacitated.

(138) Does drug abuse render a person incompetent to

No. Drug abuse becomes relevant only if the witness
was under the influence of drugs at the time he is testifying or at the time the events in question were observed.
While drug abuse may not be ground for barring a witness form testifying, they may serve as ground for attacking the credibility of the witness.

(139) What are the qualifications of a witness? (Sec. 20)
A person is qualified or competent to become a witness
if he is:

Capable of perceiving; and

Can make his perception known to others

Religious or political belief, interest in the outcome of the case, or conviction of a crime (unless
otherwise provided by law, example those who have
been convicted of falsification of a document, perjury or
false testimony are disqualified from being witnesses to
a will) shall not be a ground for disqualification.
It should be noted, however, that loss of the perceptive
sense after the occurrence of the fact does not affect the
admissibility of the testimony. Hence, a blind man can
testify to what he saw prior to his blindness or a deaf
man, to what he heard prior to his deafness. But a person incapable of perception is pro tanto incapable of
A witness may have been capable of perceiving, yet
incapable of narration. He may have no powers of
speech, and have no means of expressing himself by
signs. He may have become insane since the occurrence he is called upon to relate. A person incapable of
narration is pro tanto incapable of testifying.

He must take either an oath or an affirmation




21 / 65

He must not possess the disqualifications imposed

by law or the rules


Those whose mental condition, at the time of their

production for examination, is such that they are
incapable of intelligently making known their perception to others (mental incapacity)


Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them
truthfully (immaturity)

(140) What are the abilities required of a witness?

A prospective witness must show that he has the following abilities:

To observe - the testimonial quality of perception

To remember / recollect - the testimonial quality
of memory
To relate / narrate - the testimonial quality of
To recognize a duty to tell the truth - the testimonial quality of sincerity

(141) Who are disqualified from becoming witnesses



Those disqualified under Rule 130, Secs. 21 - 24

Art. 821 of the Civil Code disqualifies those who
have been convicted of falsification of a document,
perjury or false testimony from being witnesses to a
Rule 119, Sec. 17 requires that the accused sought
to be discharged to be state witness has not at any
time been convicted of any offense involving moral
turpitude. The same requirement is provided for a
state witness under R.A. 6981 (Witness Protection,
Security and Benefit Act)

Mental unsoundness of the witness at the time the fact

to be testified to occurred, affects only his credibility. As
long as the witness can convey ideas by words or signs
and give sufficiently intelligent answers to questions
propounded, she is a competent witness even if she is
feeble-minded (People v. De Jesus, 1984)
Presumption of sanity. The law presumes that every
person is of sound mind, in the absence of proof to the
contrary. But mental unsoundness alone does not per se
disqualify as a witness, it must be of such degree that
the persons ability to perceive, recall, and testify are so
impaired that the witnesss testimony is worthless. XPN:
If the witness is a lawful inmate of an asylum for the
(145) What are the requisites for the disqualification by
reason of mental incapacity?

(142) May an attorney be a witness of his own client?

Yes. When a lawyer is a witness for his client, except as
to merely formally matters, he should leave the trial of
the case to the other counsel.

(143) What are the two kinds of incompetency?

Absolute disqualification - A person is forbidden
to testify on any matter. This includes:

Disqualification by reason of mental incapacity or immaturity (Rule 130, Sec. 21)

Disqualification by reason of marriage (Rule
130, Sec. 22)

Relative disqualification - A person is forbidden

to testify only on certain matters specified under
Secs. 23 and 24 of Rule 130 due to interest or relationship or to privileges of the other parties.


Disqualification by reason of death or insanity

of adverse party (Dead Mans Statute) (Rule
130, Sec. 23)
Disqualification on ground of privileged
communication (Rule 130, Sec. 24)



(Sec. 21)

(144) What is the disqualification by reason of mental

incapacity or immaturity? (Rule 130, Sec. 21)
The following cannot be witnesses:

(146) What are the rules as to time of insanity?




The person must be incapable of intelligently making known his perception to others
His incapability must exist at the time of his production for examination


At the time of the trial - incompetent

At the time of the transaction - competent, but may
affect the witness credibility
At some other period - no effect

(147) Are deaf-mutes competent witnesses?

Deaf-mutes are competent witnesses when they can
understand and appreciate the sanctity of an oath, can
comprehend facts they are going to testify to and can
communicate their ideas through a qualified interpreter.
(148) What are the requisites for the disqualification by
reason of immaturity?


The mental maturity of the witness must render him

incapable of perceiving the facts respecting which
he is examined
He is incapable of relating his perception truthfully


A.M. No. 00-4-07-SC

(149) Applicability of the rule: Unless otherwise provided,

this Rule shall govern the examination of child witnesses
who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings
and non-criminal proceedings involving child witnesses.
(150) Presumption of competency. Every child is presumed
qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio



22 / 65

or on motion of a party, when it finds that substantial

doubt exists regarding the ability of the child to perceive,
remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.
The competency examination of a child witness is not
open to the public. Only the following are allowed to
attend the examination:

The judge and necessary court personnel

The counsel for the parties
The guardian ad litem
One or more support persons for the child
The defendant, unless the court determines that
competence can be fully evaluated in his absence

(151) Child witness is any person who at the time of giving

testimony is below eighteen (18) years. In child abuse
cases, a child includes one over eighteen (18) years but
is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or
mental disability or condition.
Facilitator means a person appointed by the court to
pose questions to a child. The facilitator maybe a child
psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent or relative.
Support person is a person chosen by the child to
accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him.
(152) Best interests of the child. The totality of the circumstances and conditions as are most congenial to the
survival, protection and feelings of security of the child
and most encouraging to his physical, psychological and
emotional development. It also means the least detrimental available for safeguarding the growth and development of the child.
(153) Developmental level refers to the specific growth
phase in which most individuals are expected to behave
and function in relation to the advancement of their
physical, socio-emotional, cognitive and moral abilities.
(154) The public may be excluded from the courtroom
when they do not have a direct interest in the case. The
court may also, on motion of the accused, exclude the
public from trial, except court personnel and the counsel
of the parties.
(155) Examination of a child witness. As a general rule, the
examination of a child witness presented in a hearing or
any proceeding shall be done in open court. Unless the
witness is incapacitated to speak, or the question calls
for a different mode of answer, the answers of the witness shall be given orally.
The party who presents a child witness or the guardian
ad litem of such child witness may, however, move the
court to allow him to testify int he matter provided in this
The court may:

Allow the child witness to testify in a narrative form









Allow leading questions in all stages of the examination of a child if the same will further the interests
of justice
When a child does not understand English or Filipino language or is unable to communicate in said
languages, an interpreter may be appointed by the
court, motu proprio or upon motion
The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child in
unable to understand or respond to the questions
A child testifying at a judicial proceeding or making
a deposition shall have the right to be accompanied
by one or two persons of his own choosing to provide him emotional support
Allow the child reasonable periods of relief while
undergoing direct, cross, re-direct and re-cross
examinations as often as necessary depending on
his developmental level
While testifying, a child shall be allowed to have an
item of his own choosing such as a blanket, toy or
doll (emotional security item)
The court may prohibit a counsel from approaching
a child if it appears that the child is fearful of or
intimidated by the counsel
The court may order that persons attending the trial
shall not enter or leave the courtroom during the
testimony of the child.

(156) Corroboration shall not be required of a testimony of a

child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion or judgment
subject to the standard of proof required in criminal and
non-criminal cases.
(157) Live link TV testimony of a child witness. In criminal
cases where a child is a victim or witness, the prosecutor, counsel or the guardian ad litem may apply for an
order that the testimony of the child be taken in a room
outside the courtroom and be televised to the courtroom
by live-link television.
The person seeking such an order shall apply at least 5
days before the trial date, unless the court finds on the
record that the need for such an order was not reasonably foreseeable.
The court may order the the testimony of the child be
taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in
the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind
which would impair the completeness or truthfulness of
the testimony of the child. The child shall, therefore,
testify in a separate room.
The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be
made part of the court record and shall be subject to a
protective order.
(158) Videotaped deposition of a child witness. The prosecutor, counsel or guardian ad litem may apply for an
order that a deposition be taken of the testimony of the
child and that it be recorded and preserved on video-



23 / 65

tape. Before the guardian ad litem applies for this order,

he shall consult with the prosecutor or counsel.


If the court finds that the child will not be able to testify
in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. The judge shall preside at the videotaped deposition of the child.


It must be noted that the right of the accused during

trial, especially the right to counsel and to confront and
cross-examine the child, shall not be violated during the


If the order of the court is based on evidence that the

child is unable to testify in the physical presence of the
accused, the court may direct the latter to be excluded
from the room. In such case, the court shall order that
the testimony of the child be taken by live-link television.
The videotaped deposition shall be preserved and
stenographically recorded and be subject to a protective
If at the tie of trial, the court finds that the child is unable
to testify (substantial likelihood to suffer trauma), or is
unavailable to testify for any reason under Rule 23, Sec.
4(c) of the Rules of Civil Procedure, the court may admit
into evidence the videotape deposition of the child in lieu
of his testimony at the trial. The court shall issue an order stating the reasons therefor.
(159) Sexual Abuse Shield Rule. GR: The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse:

Evidence offered to prove that the alleged victim

engaged in other sexual behavior
Evidence offered to prove the sexual predisposition
of the alleged victim.

XPN: Evidence of specific instances of sexual behavior

by the alleged victim to prove that a person other than
the accused was the source of the semen, injury or other
physical evidence shall be admissible.
It is likewise settled jurisprudence that testimonies of
child-victims are given full weight and credit. When a
woman or a child says that she has been raped, she
says in effect all that is necessary to show that rape was
indeed committed (People v. Pulanco, 2003)



(160) What is the disqualification by reason of marriage?
During their marriage, neither the husband nor the wife
may testify for or against the other without the consent
of the affected spouse.
Purpose: To obviate perjury (because of unity of interest)
and to prevent domestic disunity and unhappiness.


There is identity of interests between husband and

If one were to testify for or against the other, there
is a consequent danger of perjury
The policy of the law is to guard the security and
confidence of private life, even at the risk of an
occasional failure of justice, and to prevent domestic disunion and unhappiness
Where there is want of domestic tranquility there is
danger of punishing one spouse through the hostile
testimony of the other

(162) What are the requisites for disqualification by

reason of marriage?

That the spouse for or against whom the testimony

is offered is a party to the case
That the spouses are legally married (valid until
Testimony is offered during the existence of marriage
The case is not one of the exceptions provided in
the rule

(163) What are the exceptions to the rule on disqualification by reason of marriage?
The rule on disqualification does not apply in the following:

Where the testimony was made outside the

In a civil case by one spouse against the other
In a criminal case for a crime committed by
one spouse against the other or the latters
direct descendants or ascendants

The disqualification does not apply where an offense

directly attacks or directly and vitally impairs the conjugal relations.
It does not also apply in the case of estranged spouses,
where the marital and domestic relations are so strained
that there is no more harmony to to be preserved nor
peace and tranquility which may be disturbed.

Where the spouse-party gives his/her consent

Where the spouse-party fails to raise the disqualification seasonably

(164) Distinguish disqualification by reason of marriage

(Sec. 22) and disqualification by reason of marital
privilege (Sec. 24-A)
Disqualification by Reason
of Marriage (Sec. 22)

Can be invoked only if one of Can be claimed whether or

the spouses is a party to the not the other spouses is a
party to the action
Applies only if the marriage is Can be claimed even after the
existing at the time the marriage is dissolved
testimony is offered
Constitutes a total prohibition Applies only to confidential
for or against the spouse of communications between the
the witness

Who may object: Only the spouse-party and not the

other spouse who is offered as a witness.
(161) What are the reasons for the disqualification rule?

Disqualification by Reason
of Marital Privilege (Sec. 24)



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Disqualification by Reason
of Marriage (Sec. 22)

Disqualification by Reason
of Marital Privilege (Sec. 24)

The objection would be raised

on the ground of marriage.
The married witness would
not be allowed to take the
stand at all because of the
disqualification. Even if the
testimony is, for or against the
objecting spouse, the spousewitness cannot testify

The married person is on the

stand but the objection of
privilege is raised when
c o n fi d e n t i a l m a r i t a l
communication is inquired

Likewise called the Dead Mans Statute or Survivorship Disqualification Rule. It is designed to close the
lips of the party plaintiff when the death or incompetence has permanently closed the lips of the party defendant in order to remove from the claiming party the
temptation to give false testimony and the possibility of
fictitious claims against the deceased or incompetent.
(171) What are the requisites for disqualification by
reason of death or insanity of the adverse party?

(165) What is the nature of the prohibition?

It is an absolute prohibition against the spouses testifying to any fact affecting the husband or the wife however
the knowledge of these facts may have been acquired.
However, res gestae declarations of the husband and
wife are admissible for or against each other, even
though each is incompetent to testify.
(166) What is the duration of the privilege?
The privilege lasts only during marriage. It terminates
upon divorce or annulment or death, in which event, the
surviving spouse may testify on any matter not learned
in confidence.
(167) May the accused marry the witness to seal her
Yes. An accused can effectively seal the lips of a witness by marrying the witness. As long as a valid marriage is in existence at the time of the trial, the witnessspouse cannot be compelled to testify even where the
crime charged is against the witness person, and even
though the marriage was entered into for the express
purpose of suppressing testimony.
(168) Does the disqualification extend to testimonies in
favor of the spouse?
The prohibition extends not only to a testimony adverse
to the spouse but also to a testimony in favor of the
spouse. It also extends to both criminal and civil cases
because the rule does not distinguish.
(169) Is the spouses are estranged, does the disqualification and the privilege still apply?
No. Technically, it will still apply because the testimony
will still happen during the marriage, but the Supreme
Court has abandoned this literal interpretation of the
Where the marital relations are so strained that there is
no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon
such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of
perjury based on that identity is non-existent. (Alvarez v.
Ramirez, 2005)



(170) What is the disqualification by reason of death or
insanity of the adverse party?





The witness is a party or assignor of a party to a

case or persons in whose behalf a case is prosecuted
The action is against an executor or administrator
or other representative of a deceased person or a
person of unsound mind
The subject-matter of the action is a claim or demand against the estate of such deceased person
or against person of unsound mind
The subject matter of the testimony refers to any
matter of fact which occurred before the death of
such deceased person or before such person became of unsound mind

Incompetency to testify applies whether the deceased

died before or after the commencement of the action
against him if at the time the testimony was given he
was already dead and cannot disprove it.
Assignor pertains to the assignor of a cause of action
which has already arisen and not the assignor of a right
before any cause of action accrued.
(172) Who are the persons entitled to invoke the protection of the Dead Mans Statute?
The persons entitled to invoke the protection of the
Dead Mans Statute are the executor, administrator and
any other representative of a deceased person, when
they are the defendants in a claim against the state of
the deceased. The protection may likewise be invoked
by a person of unsound mind in a claim filed against
The rule will not apply where the plaintiff is the executor
or administrator as representative of the deceased or if
the plaintiff is the person of unsound mind. Likewise,
when a counterclaim is set up by the administrator of the
estate, the case is removed form the operation of the
Dead Mans Statute. The plaintiff may testify to occurrences before the death of the deceased to defeat the
counterclaim which is not brought against the representative of the estate but the representative.
(173) What are the matters prohibited?
Those occurring in the presence and within the hearing
of the decedent to which he might testify of his personal
knowledge if he were alive. Thus it cannot be invoked if
the matter of the testimony of the plaintiff is the nonoccurrence of a fact.
Likewise, facts favorable to the deceased or his representatives are not prohibited as the statutes are designed to protect the interest of a deceased or insane
(174) When can the Dead Mans Statute not be invoked?



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Testimony of mere witnesses who are neither party

plaintiffs, nor their assignors, nor persons in whose
behalf a case is prosecuted, nor to a nominal party,
nor to officers and stockholders of a plaintiff corporation. (disinterested witnesses)
2. If the plaintiff is the executor or administrator
or other representative of a deceased person, or
the person of unsound mind
3. In an action against a partnership
4. If the person or persons mentioned under the rule
file a counterclaim
5. When the testimony refers to fraudulent transactions committed by the persons mentioned in the
rule, provided that fraud has been clearly established by evidence
6. When there is waiver (by failing to object to the
testimony or by cross-examining the witness on the
prohibited testimony or by offering evidence to
rebut the testimony)
7. When the testimony of a plaintiff refers to the nonoccurrence of a fact
8. In cadastral cases since there is neither plaintiff
nor defendant, nor in land registration cases instituted by the decedents representatives, as the
oppositors are considered defendants and may,
therefore, testify against the petitioner
9. Testimony on the possession by witness of a
written instrument made by the deceased, as
such fact exists even after the decedents demise
10. Where the deceased contracted with the plaintiff
through an agent and said agent is alive and
can testify, but the testimony of the plaintiff
should be limited to acts performed by the agent
(175) Distinguish the Dead Mans Statute from the Marital Disqualification Rule
Dead Mans Statute

Marital Disqualification Rule

Only a partial disqualification It is a complete and absolute

a s t h e w i t n e s s i s n o t disqualification
completely disqualified but is
only prohibited from testifying
on matters therein specified.
Applies only to a civil case or
special proceeding over the
estate of a deceased or
insane person

Applies to a civil or criminal

case, subject only to two
exceptions provided therein:
(1) except in a civil case by
one against the other; or (2) in
a criminal case for a crime
committed by one against the
other or the latters direct
descendants or ascendants



(176) What is the privilege in privileged communication?
Privilege is a rule of law that, to protect, a particular
relationship or interest, either permits a witness to refrain
from giving testimony he otherwise could be compelled
to give, or permits someone, usually one of the parties,
to prevent the witness from revealing certain information.
(177) Who may assert the privilege?


(178) In what cases may the rule on privileged communication be applied?

We apply the privileged communication to both civil and
criminal cases except as to the doctor-patient privilege,
which is applicable only in civil cases.
Unless waived, the disqualification under Sec. 24 remains even after the various relationships therein have
ceased to exist.
Note: The privilege cannot be invoked where confidential
communications or information are made in contemplation of a crime or in furtherance or perpetuation of fraud.

Between Husband and Wife

(179) What is the reason for the privileged communication rule between husband and wife?
It is assured that what you confide with your spouse will
not be divulged in the future.
(180) What are the requisites?


There was a valid marital relation

The privilege is invoked with respect to a confidential communication between the spouses given
during said marriage
The spouse against whom such evidence is being
offered has not given his or her consent to such

For the information to be confidential, it must be made

during and by reason of the marital relations and is intended not to be shared with others. Without such intention, common reason suggests that the information is
not confidential.
(181) Who is the holder of the privilege?
The privilege in principle belongs to the communicating
spouse, not to the other one. The prohibition arises only
when the person in whose favor the privilege exists,
demands, by timely objection to the testimony, that the
privilege be enforced.
(182) Are third persons who overhears spousal communication likewise disqualified?
No. Communications overheard by third persons without
knowledge of spouses are still confidential but the third
party is not disqualified to testify.
(183) What is the duration of the privilege?
The rule rendering one spouse incompetent to testify to
confidential communications is not affected by the death
of the other spouse or by absolute divorce.

Between Attorney and Client

(184) What are the requisites?

Holder of privilege

Authorized persons
Persons to whom the privileged communications
were made

There is an attorney and client relationship or a kind

of consultancy relationship with a prospective client
The privilege is invoked with respect to a confidential communication between them made in the




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course of or with a view to professional employment

The client has not given consent to the attorneys
testimony thereon; or if the attorneys secretary,
stenographer or clerk is sought to be examined,
that both the client and the attorney have not given
their consent thereto



(185) What is the purpose of the privileged communication rule between attorney and client?
It is to encourage full disclosure by client to his attorney
of all pertinent matters so as to further the administration
of justice.
(186) What is the test if the communication is covered
by the privilege?
The test is whether the communications are made to an
attorney with a view of obtaining from him professional
assistance or advice regardless of whether there is
pending or merely impending litigation or any litigation.
Preliminary communications made for the purpose of
creating the attorney-client relationship are within the
privilege. However, if the communications were not
made for the purpose of creating that relationship, they
will not be covered by the privilege even if thereafter the
lawyer becomes counsel of the party in a case involving
said statements.
The communications covered by the privilege include
verbal statements and documents or papers entrusted
to the attorney through the act or agency of his client.

(190) Who is the holder of the privilege?

To the client only belongs the privilege and therefore he
alone can invoke it. And he may claim it not only when
his attorney is called upon to disclose professional
communications, but also when he himself is asked to
make the disclosure.
(191) What is the duration of the privilege?
The privilege protecting communications continues even
after the relation of client and attorney is terminated. The
seal of the law once fixed upon them remains forever,
unless removed by the party himself in whose favor it is
there placed.

Between Doctor and Patient

(192) What are the requisites?

Note: The rule applies even to a counsel de officio

(187) Does the privilege apply where the adverse parties are the attorney and the client themselves?
The weight of authority supports the view that when the
client and attorney become embroiled in a controversy
between themselves, as in an action filed for payment of
attorneys fees or for damages against the negligence of
the attorney, the privilege is removed from the attorneys
(188) What are cases where the disqualification based
on the attorney-client privilege does not apply?

Intended to be made public

Intended to be communicated to others
Received from third persons not acting in behalf of
or as agents of the client
Intended for an unlawful purpose
Made in the presence of third parties who are
strangers to the attorney-client relationship

Note: It is not within the profession of a lawyer to advise a client

as to how he may commit a crime as a lawyer is not a gun for
hire. Thus, the attorney-client privilege does not attach, there
being no professional employment in the strict sense.

(189) What is the rule on attorney-client privilege as

applied to the identity of a client?
GR: A lawyer may not invoke the privilege and refuse to
divulge the name or identity of his client.

Where a strong possibility exists that revealing the

clients name would implicate the client in the very
activity for which he sought the lawyers advice
Where disclosure would open the client to civil
Where the prosecutors have no case against the
client unless by revealing the clients name, the said
name would furnish the only link that would form
the chain of testimony necessary to convict an
individual for a crime


The physician is authorized to practice medicine,

surgery or obstetrics
The information was acquired or the advice or
treatment was given by him in his professional capacity for the purpose of treating or curing the patient
The information is confidential
The information, advice or treatment, if revealed,
would blacken the reputation of the patient
The privilege is invoked in a civil case, whether the
patient is a party thereto or not.

(193) What is the purpose of the privilege?

It is intended to facilitate and make safe, full and confidential disclosure by the patient to the physician of all
facts, circumstances and symptoms untrammeled by
apprehension of their subsequent and enforced disclosure and publication on the witness stand to the end
that the physician may form a correct opinion and enabled safely and efficaciously to treat his patient.
(194) When is the physician acting in his professional
When he attends to the patient for curative, preventive
or palliative treatment.
Note: It is essential that at the time the communication
was made, the professional relationship of physician and
patient existed. However, it is not necessary that the
physician-patient relationship was created through the
voluntary act of the patient. Thus, the treatment may
have been given at the behest of another, the patient
being in extremis.



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Note: Dentist, pharmacist or nurses are disqualified if

acting as agents. The test is whether a third person was
an agent of the doctor in a professional capacity


(195) When doesnt the privilege apply?



Where the communication was not given in confidence

The communication is irrelevant to the professional
The communication was made for an unlawful purpose
The information was intended to be made public
(ex. under Rule 28, the results of the physical and
mental examination of a person when ordered by
the court and also, the results of autopsies or
postmortem examinations)
There was a waiver of the privilege either by provisions of contract or law (ex. Rule 28 under which if
the party examined obtains a report on said examination or takes the deposition of the examiner, he
thereby waives any privilege regarding any other
examination of said physical or mental condition
conducted or to be conducted on him by another

(196) What is the scope of the prohibition?

It applies not only to communication but also to opinions
or prescriptions.
Note: Not all information obtained confidentially by the
physician from the patient and necessary for his treatment are within the privilege. The information held to be
privileged is that which would blacken the reputation of
the patient.
Note: It is only the tenor of the communication by the
patient to the doctor that is privileged. Hence, the fact of
communication, the date and frequency of consultation
with the doctor are excluded.
(197) What is the duration of the privilege?
It continues after death but may be waived by the personal representative of the decedent.

Between Priest and Penitent


The confession must have been made to the priest

in his professional character in the course of discipline enjoined by the church to which he belongs
The communications made were confidential and
penitential in character

(199) What is the purpose of the privilege?

(201) Other privileged matters


The guardian ad litem shall not testify in any proceeding concerning any information, statement, or
opinion received from the child in the course of
serving as a guardian ad litem, unless the court
finds it necessary to promote the best interests of
the child


The publisher, editor or duly accredited reporter of

any newspaper, magazine or periodical of general
circulation cannot be compelled to reveal the
source of any news report or information which was
related in confidence to him, unless the court or a
House or Committee of Congress finds that such
revelation is demanded by the security of the State


Voters may not be compelled to disclose for whom

they voted


Trade secrets


Bank deposits


Informers privilege - the prosecutor may not be

compelled to present an informer to protect his
identity and when his testimony would be merely
cumulative and corroborative


Conciliators and similar officials shall not testify in

any court or body regarding any matter taken up at
the conciliation proceedings conducted by them
(Labor Code, Art. 233)

The confidential character of a privileged communication

is not lost solely on the ground that it is in the form of an
electronic document.

Public Officers
(200) Requisites:
The holder of the privilege is the government, acting through a public officer


(202) What is parental and filial privilege? (Sec. 25)
No person may be compelled to testify against his parents, other direct ascendants, children or other direct
Ratio: To preserve family cohesion.

The rationale for the rule is to allow and encourage individuals to fulfill their religious, emotional or other needs
by protecting confidential disclosures to religious practitioners.


Other Privileged Matters


(198) Requisites:


The communication was given to the public officer

in confidence
The communication was given during the term of
office of the public officer but the privilege may be
invoked not only during the term of office of the
public officer but also after
The public interest would suffer by the disclosure of
the communication

Note: Family Code Art. 213 provides that No descendant shall be compelled, in a criminal case, to testify
against his parents and grandparents, except when such
testimony is indispensable in a crime against the descendant or by one against the other.
Rule 130, Sec. 25 does not provide for an exception. So
in case of conflict, it was suggested that the RUles of
Court should apply because it took effect in 1989 as
compared to the Family Code which took effect in 1988.
It may be argued that the former is procedural and the



28 / 65

latter is substantive; however, it was further suggested

that although the Family Code provision is substantive, it
is procedural in character. So of these two provisions,
the RUles of Court which was made by the Supreme
Court, should prevail.



Admission is not hearsay and not a hearsay exception.

(204) What is the rule on admissions? (Sec. 26)
The act, declaration or omission of a party as to a relevant fact may be given in evidence against him.
The rule that the admission must be made by the party
himself does not apply if it is an adoptive admission.
(205) Distinguish extra-judicial admissions from judicial

Rule 129, Sec. 4

Extra-Judicial Admissions
Rule 130, Sec. 26

In the course of a proceeding Out-of-court declaration

in the same case
Does not require proof

Requires proof

Conclusive upon the admitter


Admissible even if self-serving Admissible only if disserving

Subject to cross-examination

Not subject to cross


Admissions in the course of discovery proceedings are

judicial admissions.
(206) Self-Serving Declarations. Self-serving declarations
refer to one which has been made extra-judicially by the
party to favor his interest.
It is excluded on the same ground as any hearsay evidence, which is the lack of opportunity for cross-examination by the adverse party and the inherent untrustworthiness and it would open the door to fraud and fabrication of testimony.
(207) When are self-serving statements admissible?


When they form part of the res gestae

When they are in the form of complaint and exclamations of pain and suffering
When they are part of a confession offered by the
Where the credibility of a party has been assailed
on the ground that his testimony is a recent fabrication, in which case his prior declaration, even if selfserving, may be admitted (Testimonial Rehablitation)
Where they are offered by the opponent
Where they are offered without objection

(208) Admissions vis-a-vis Confessions

Admission is something less than a confession and is

but an acknowledgement of some fact or circumstance
which in itself is insufficient to authorize a conviction,
and which tends only to establish the ultimate fact of

Statement of facts which Statement of facts which

d o e s n o t i n v o l v e a n involves an acknowledgment
acknowledgment of guilt
of guilt

(203) Admission is any extra-judicial statement or conduct

(act or omission) by a party that is inconsistent with the
position the party presently takes.

Judicial Admissions

Every confession is an admission, but not all admissions

are confessions.

Civil transactions and to Acknowledgement of guilt in

matters of fact in criminal criminal cases
cases not involving criminal
May be made by third persons Can be made only by the
party himself
Express or implied

Always express


(209) Compromise. Compromise is an agreement made between two or more parties as a settlement of matters in
(210) Effect of compromise in civil cases
In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence
against the offeror.
Ratio: It is the policy of the law to favor the settlement of
disputes, to foster compromises and to promote peace.
XPN: When such offer is clearly not to buy peace but
amounts to an admission of liability the offered compromise being directed only to the amount paid.
The fact that a writing contains an offer of compromise
does not render it inadmissible in evidence if it is competent evidence for other purposes. Thus, an express
and an unqualified admission of indebtedness accompanying an offer of compromise is admissible in evidence.
(211) Effect of compromise in criminal cases
In criminal cases, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.
A plea of forgiveness may be considered analogous to
an attempt to compromise a criminal case since no one
would ask for forgiveness


Those involving quasi-offenses or criminal negligence (ex. reckless imprudence)

Those covered by the Katarungang Pambarangay
BP 22 - the drawer or maker is allowed to pay in full
the holder of the check within 5 banking days from
notice that the check has not been paid
Plea of guilty later withdrawn
An unaccepted offer of plea of guilty to a lesser
An offer to pay or the payment of medical, hospital
or other expenses occasioned by an injury




29 / 65

Tax cases, as the law provides that the payment of

any internal revenue tax may be compromised, and
all criminal violations may likewise be compromised, except those already filed in court and those
involving fraud

An offer of compromise that may be considered an implied admission need not be made by the accused himself; it ma be made by his lawyer or relatives, provided it
is made with the consent of the accused or with his
knowledge and he does not stop it.
(212) Good Samaritan Rule
An offer to pay or the payment of medical, hospital and
other expenses occasioned by an injury is not admissible in evidence as proof of civil and criminal liability for
the injury (Rule 130, Sec. 27, par. 2)
This is to encourage the giving of charitable and meritorious aid to the victims of accidental harm plus a concern that such payment may have been prompted solely
by humanitarian motives.
(213) Distinguish an offer of compromise from ordinary
Offer of Compromise

Ordinary Admission

The proposal is tentative and

any statement made in
connection with it is
hypothetical - to buy peace
and, in contemplation of
mutual concessions

The intention is apparently to

admit liability and to seek to
buy or secure relief against a
liability recognized as such

Although a judicial or an extra-judicial amicable settlement does not bear the courts approval, ...the agreement can become the source of rights and obligations of
the parties.
(214) Cases where compromises are not allowed

Civil status of persons

Validity of a marriage or legal separation
Any ground for legal separation
Future support
Jurisdiction of courts
Future legitime
Habeas corpus and election cases

(217) Vicarious Admissions

The basis for admitting such admission is that the person making the statement is under the same circumstances as the person against whom it is offered. Such
circumstances give him substantially the same interest
and the same motive to make a statement about certain

Admission by a co-partner or agent (Sec. 29)

Admission by a co-conspirator (Sec. 30)
Admission by privies (Sec. 31)


AGENT (Sec. 29)
(218) What are the requisites?

The act or declaration of a partner or agent of the

party must be within the scope of his authority
During the existence of the partnership or agency
After the partnership or agency is shown by evidence other than such act or declaration

The same rule applies to the act or declaration of a joint

owner, joint debtor, or other person jointly interested with
the party.
Ratio: What is done by an agent within the scope of his
agency is in legal effect done by the principal.
(219) Why is the admission of a co-partner received
against another?
The admissions of one partner are received against another, not on the ground that they are parties to the
record, but on the ground that they are identified in interest, and that each is agent for the other, and that the
acts and declarations of one during the existence of the
partnership, while transacting its business and within the
scope of the business, are evidence against the other/s.
Where the admissions are made in connection with the
winding up of the partnership affairs, said admissions
are still admissible as the partner is acting as an agent of
his co-partners in said winding up.



(220) What does admission by conspirator refer to?

(215) Res Inter Alios Acta Rule

The expression if fully expressed reads, Res inter alios
acta alteri nocere non debet which literally means that
things done between strangers ought not to injure
those who are not parties to them.
(216) Two branches of the Res Inter Alios Acta rule

Rule 130, Sec. 28 The rule that the rights of a

party cannot be prejudiced by an act, declaration,
or omission of another, except as hereunder provided as vicarious admissions


Rule 130, Sec. 34 The rule that evidence of previous conduct or similar acts at one time is not admissible to prove that one did or did not do the
same act at another time

It refers to an extrajudicial declaration of a conspirator,

and not to his testimony given on the stand which is
subject to cross-examination.
(221) What are the requisites?

Conspiracy must be first proved by evidence other

than the admission itself
Admission relates to the conspiracy itself
It has been made while the declarant was engaged
in carrying out the conspiracy

The arrest of the declarant is often found to terminate

the declarants participation in the conspiracy so that the
declarants post-arrest statements do not qualify as
admissible co-conspirator statements.



30 / 65


(222) What does admission by privies refer to?
Privies refers to those who have mutual or successive
relationship to the same rights of property or subject
matter such as personal representatives, heirs, devisees,
legatees, assigns, voluntary grantees, or judgment creditors or purchasers from them with notice of the facts.
It is that the declarant was so situated that his interest
were such that he would not have made the admission
to the prejudice of his title or possession unless they
were true. The declarant need not be presented as witness. His statement may be proved by those who have
knowledge of them.
(223) What are the requisites?

There must be privity between the party and the

The declarant as predecessor in interest made the
declaration while holding the title to the property
The admission relates to the property


(224) What are the requisites?


He must have heard or observed the act or declaration of the other person
He must have had the opportunity to deny it
He must have understood the statement
He must have an interest to object, such that he
would naturally have done so, if the statement was
not true
The facts were within his knowledge
The fact admitted or the inference to be drawn form
his silence is material to the issue

Quitacet consentire videtur. He who is silent appears to

Note: The accuseds right to remain silent prevails over
this section.

the truthfulness of the statements of the witnesses who

had confessed the commission of the offense. Where
the accused acquiesced and willingly took part, although
silently int he reenactment of a crime, his acts therein
may be considered as evidence against him.


(227) Confession. The declaration of an accused acknowledging his guilt of the offense charged, or any offense
necessarily included therein, may be given in evidence
against him.


Conduct and demeanor of a party at the trial tending
to show consciousness of liability may be admitted
against such party.
Flight of the accused after the commission of the
offense is evidence of guilt. Ratio: The wicked flee, even
when no man pursueth; but the righteous are as bold as
a lion. However, the fact that the accused did not flee
from the scene of the crime is not sufficient ground to
exculpate a person from liability.
In an administrative complaint against a lawyer for his
negligence in the performance of duties as counsel


(228) Unaccepted offer. An offer in writing to pay a particular sum of money or to deliver a written instrument or
specific personal property is, if rejected without valid
cause, equivalent to the actual production and tender of
the money, instrument or property.


(225) What is the doctrine of adoptive admission?

An adoptive admission is a partys reaction to a statement or action by another person when it is reasonable
to treat the partys reaction as an admission of something stated or implied by the other person.
(226) What are instances where there is no implied admission?

Allegations of unliquidated damages

Allegations which are not material to the cause of
Conclusions of fact/law
Allegations of usury other than in a complaint
If defendant has not filed his answer and is declared in default
Act or declaration was made in the course of a
custodial investigation

Note: It has, however, been held that the reenactment of

the crime is not part of a formal official investigation. The
reenactment is a police continuance, designed to test

(229) Testimonial knowledge. A witness can testify only to

those facts which he knows of his personal knowledge,
that is, which are derived from his own perception, except as otherwise provided in the Rules.
(230) Hearsay Evidence. Evidence is called hearsay when its
probative force depends in whole or in part on the competency and credibility of some persons other than the
witness by whom it is sought to produce it (outside declarant). It is the evidence not of what the witness knows
himself but of what he has heard from others.
Hearsay evidence may be verbal or in writing.
Elements of hearsay evidence:

An out-of-court statement, oral or written or nonverbal conduct, made by one other than the one
made by the declarant or witness testifying at the
trial; and




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The out-of-court statement must be offered to

prove the truth of the matter asserted in the out-ofcourt statement



(231) Reason for excluding hearsay evidence. The basis

for exclusion lies in the fact that hearsay testimony is not
subject to the tests which can ordinarily be applied for
the ascertainment of the truth of the testimony, since the
declarant is not present and available for cross-examination.



In criminal cases, the admission of hearsay evidence

would be a violation of the constitutional provision that
the accused shall enjoy the right of being confronted
with the witnesses testifying against him and to crossexamine them.
Moreover, the court is without opportunity to test the
credibility of hearsay statements by observing the demeanor of the person who made them.
The hearsay rule therefore bars the admission of evidence that has not been given under oath or solemn
affirmation and more importantly, has not been subjected to cross-examination by opposing counsel.
(232) When is the hearsay rule not applicable to the
testimony of a witness regarding a statement
made by a third person?
Where a statement is not offered for the truth of the
matter asserted but for an evidentiary purpose not dependent on the truth of the matters asserted.
Independently-relevant statements. Where, regardless of the truth or the falsity of a statement, the fact that
it has been made is relevant, the hearsay rule does not
apply, but the statement may be shown. Evidence as to
the making of such statement is not secondary but primary, for the statement itself may constitute a fact in
issue, or be circumstantially relevant as to the existence
of such a fact.
The independently relevant statements may be grouped
into two classes (Estrada v. Desierto):

Those statements which are the very facts in

issue; and
Those statements which are circumstantial evidence of the facts in issue

Statements which are the facts in issue. If the fact

sought to be established is that certain words were spoken, without reference to the truth or falsity of the words,
the testimony of any person who heard the statement is
original evidence and not hearsay. Such evidence is
admitted for the purpose of establishing merely the utterance of the words, and not their truth, but the admission in evidence of the words spoken is not to be used
in determining the issue of their truth.
In a prosecution for slander, a witness may testify that he
heard the accused utter the slanderous words, for the
making of the statements is the principal fact in issue,
and the witness is called upon to testify as to a matter
within his personal knowledge.
Statements which are circumstantial evidence of
the facts in issue.


Statements offered to prove the declarants state of

mind, mental condition, knowledge, belief, intention, ill-will and other emotion
Statements offered to prove the declarants physical
condition, illness and the like
Statements of a person from which an inference
may be made as to the state of mind of another,
that is knowledge, belief, motive, good or bad faith,
etc. of the latter
Statements which may identify the date, place and
person in question
Statements showing the lack of credibility of a witness / statements introduced to impeach a witness
Statements offered to prove its effect on the listener
/ hearer

Are newspaper accounts of an incident hearsay evidence? Newspaper accounts of an incident are hearsay if offered for a purpose other than the truth of the matter asserted.
The newspaper account is admissible only to prove that there
was a publication and merely the tenor of the news, but not its
truth. (Feria v. Court of Appeals)

The prosecution presented in evidence a newspaper

clipping of the report to the reporter who was present
during the press conference stating that X admitted the
robbery. Is the newspaper clipping admissible against X?
The newspaper clipping is admissible as non-hearsay if offered
for the purpose of showing that the statement of X was made to
a reporter regardless of the truth or falsity of the statement. The
admissibility depends now on whether the fact that the statement was made is relevant to the case. If it is relevant, it is admissible as an independently-relevant statement (a non-hearsay
declaration). It would be hearsay if offered to prove the truth that
X was the robber.
The statement of X to a reporter may be admitted as an admission under Sec. 26 of Rule 130.

(233) Distinguish hearsay evidence from opinion evidence

Hearsay evidence is one that is not based on ones personal perception but based on the knowledge of others
to prove the truth of the matter asserted in an out-ofcourt declaration.
An opinion evidence is based on the personal knowledge or personal conclusions of the witness based on
his skill, training or experience.
(234) Exceptions to the Hearsay Rule
Dying declarations (Sec. 37)
Declaration against interest (Sec. 38)
Act or declaration against pedigree (Sec. 39)
Family reputation or tradition regarding pedigree
(Sec. 40)
5. Common reputation (Sec. 41)
6. Part of the res gestae (Sec. 42)
7. Entries in the usual course of business (Sec. 43)
8. Entries in official records (Sec. 44)
9. Commercial lists and the like (Sec. 45)
10. Learned treatises (Sec. 46)
11. Testimony or deposition at a former trial (Sec. 47)


(235) Dying Declaration (Ante Mortem Statement) is a
statement made by the victim of homicide, referring to



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the material facts which concern the cause and circumstances of the killing and which is uttered under a fixed
belief that death is impending and is certain to follow
immediately, or in a very short time, without an opportunity of retraction and in the absence of all hopes of recovery.
It may be received in any case (civil or criminal) wherein
his death is the subject of inquiry, as evidence of the
cause and surrounding circumstances of such death.
(236) Reason for admissibility

Necessity - because the declarants death renders

impossible his taking the witness stand and it often
happens that there is no other equally satisfactory
proof of the crime


Trustworthiness - the declaration is made in extremity, when the party is at the point of death and every
hope of this world is gone, when every motive to
falsehood is silenced, and the mind is induced by
the most powerful consideration to speak the truth

(237) Elements of a dying declaration


That the declaration is one made by a dying person


That the declaration was made by said dying person under a consciousness of his imminent
That the declaration refers to to the cause and
circumstances surrounding the death of the
declarant and not of anyone else
That the declaration is offered in a case where the
declarants death is the subject of inquiry
The declarant is competent as a witness had he
The declarant should have died



To admit a dying declaration in evidence, it must be

shown that the declarant believed at the time the statement was made, that he was in a dying condition and
had given up the hope of surviving. This consciousness
of an impending death may be established by other
circumstances such as the nature of the injury and the
conduct of the declarant.

credibility of testimony of a witness in court. One may

even question the competency of the declarant himself
who like any other witness, may be impeached (thus the
requirement that the declarant must be a competent
witness had he survived). A dying declaration as an exception to the hearsay rule is not meant to confer competency on an otherwise incompetent witness.
The credibility or trustworthiness of those who have
allegedly heard or taken down the dying declaration and
the form and manner by which the declaration was taken, are vital points to be considered by an objector.
Where it is shown that the persons form the prosecution
were the ones who squeezed out the dying declaration
from the ops of a weakened declarant through questions
calculated to bring out a desired response, a conscientious counsel may bring this matter up in court.


(239) Declaration Against Interest. This exception refers to
a declaration made by a person who at the time his declaration is presented in evidence is already dead or is
unable to testify. This declaration must be one which
when made, was known to the declarant himself to be
against his interest, pecuniary, moral (or penal), and
which would not have been made unless he believed it
to be true.
It is not enough that a declaration against interest was
made. It is necessary that the declarant knew that the
statement was against his interest and which he would
not have made had it not been true.
Likewise, if the declaration is favorable to the interest of
the declarant, it is a mere self-serving statement and
does not fall as an exception to the hearsay rule.
Note: The declaration against interest made by the deceased or by one unable to testify is admissible even
against the declarants successors in interest or even
against third persons.


Subsequent belief in recovery before his actual death

does not bar admissibility of a declarants statement.
The admissibility of the dying declaration depends upon
whether at the time of the declaration the deceased
believed that the injury received would be fatal. The
circumstance that he thereafter recovered does not render the declaration inadmissible.

(240) Act or Declaration Against Pedigree. The act or

declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him
by birth or marriage, may be received in evidence where
it occurred before the controversy, and the relationship
between the two persons is shown by evidence other
than such act or declaration.

Note: If the declarant survives, his declaration may be

admissible as part of the res gestae.

The word pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the
relatives. It embraces also facts of family history intimately connected with pedigree.

Let us assume that the declarants last words were, I do

not know the one who stabbed me. May these words be
admitted to favor the accused? It will. There is nothing in the
rules which prohibits the admission of a dying declaration that is
favorable to the accused. The early case of U.S. v. Antipolo
affirms that dying declarations are admissible in favor of the
defendant as well as against him.

(238) Assailing a dying declaration. Courts have to apply to

dying declarations the same rules applied in testing the

(241) Requisites

The declarant is dead or unable to testify

The declarant is related by birth or marriage
to the person whose pedigree is in issue
The declaration was made before the controversy




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The relationship between the two persons is shown

by evidence other than such act or declaration


(242) Family Reputation or Tradition Regarding Pedigree. The reputation or tradition existing in a family
previous to the controversy, in respect to the pedigree of
any one of its members, may be received in evidence if
the witness testifying be also a member of the family,
either by consanguinity or affinity. Entries in family bibles
or other family books or charts, engraving or rings, family portraits and the like, may be received as evidence of
(243) This exception involves


A statement by a member of the family either

by consanguinity or affinity
The statement is about the reputation or tradition of the family in respect to the pedigree of
any member of the family
The reputation or tradition is one existing previous to the controversy



Matters of public interest more than 30 years old

Matters of general interest more than 30 years
Matters respecting marriage or moral character
and related facts; or
Individual moral character

Common reputation cannot establish pedigree.

(245) Reason for admissibility

Necessity - because of the usual difficulty in obtaining other evidence than reputation


Trustworthiness - these facts are likely to have been

generally inquired about and that persons having
personal knowledge have disclosed facts which
thus have been discussed and generally known in
the community.

(246) Distinguish matters of public interest from

matters of general interest
Matters of Public Interest

Matters of General Interest

Common to all citizens of the

state or to the entire people

Common only to a single

community or to a
considerable number of
persons forming part of the

(247) Common reputation is the definite opinion of the

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

(248) Distinguish common reputation from rumor

Common Reputation


Presupposes the existence of

a general belief already
formed on which the general
opinion is founded.

Story current without known

authority for its truth, and
therefore by its nature, does
not yet represent the
prevailing belief in a

(249) Character means that which a person really is, while

reputation is that which he is reputed to be.
(250) Evidence of negative good repute. Where the foundation proof shows that the witness was in such position
that he would have heard reports derogatory to ones
character, the reputation testimony may be predicated
on the absence of reports of bad reputation or on the
fact that the witness had heard nothing against the person.
A mans character is not talked about till there is some
fault to be found with it. It is the best evidence of this
character that he is not talked about at all.


(244) What may be established by common reputation?


As a general rule, the reputation of a person should be

that existing in the place of his residence, it may also be
that existing in the place where he is best known.

(251) Res gestae literally means things done. It includes

the circumstances, facts and declarations incidental to
the main fact or transaction necessary to illustrate its
character and also includes acts, words or declarations
which are closely connected therewith as to constitute
part of the transaction.
What is done or said by the participants under the immediate spur of the transaction becomes part of the
transaction that thus speaks. It is the event that speaks
for itself through the spontaneous words or instinctive
words or conduct of the witness and not the witness
speaking for and about the event.
(252) Distinguish res gestae in connection with a
homicidal act from dying declarations
Res Gestae in connection
with a Homicidal Act

Dying Declarations

May be made by the killer Can be made only by the

himself after or during the victim
killing or that of a third person
May precede, accompany or Made only after the homicidal
be made after the homicidal attack has been committed
attack was committed
J u s t i fi c a t i o n i n t h e Trustworthiness based upon
spontaneity of the statement
its being given in awareness
of impending death

(253) Two types of res gestae


Spontaneous Statements
Statements made by a person while a startling
occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof



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Requisites of admissibility of spontaneous statements:



There must be a startling occurrence

That while the event is taking place or immediately prior to or subsequent thereto, a
statement has been made
The statement must relate to the circumstances of the startling occurrence; and
The statement must be spontaneous, before
the declarant had the time to contrive or devise a falsehood

The event must be of such a nature as to cause an

excited reaction in an average individual.
The interval of time between the startling occurrence and the statement depends upon the circumstances; but such statement must have been made
while the declarant was under the immediate influence of the startling occurrence.
However, if the declarant was rendered unconscious after the startling occurrence, his statements
relative thereto upon regaining consciousness are
still part of the res gestae regardless of the time
that intervened in between.
Reason for admissibility:

Necessity - natural and spontaneous utterances are more convincing than the testimony
of the same person on the stand


Trustworthiness - the statement is made instinctively, the facts speaking through the
party not the party talking about the facts

It is essential that they should have been caused by

something startling enough, to produce nervous
excitement. The declarant must be a witness to the
event to which the utterance relates. He must have
personally observed the fact.
What the law distrusts is not the after speech but
the afterthought
The admissibility is anchored on the theory that the
statement was uttered under circumstances where
the opportunity to fabricate is absent. The statement is a reflex action rather than a deliberate act,
instinctive rather than deliberate.


Verbal acts must characterize or explain the

legal significance of the equivocal act

(254) Distinguish verbal acts from spontaneous

Verbal Acts

Spontaneous Statements

The res gestae is the equivo- The res gestae is the startling
cal act
V e r b a l a c t m u s t b e Statements may be made
contemporaneous with or prior, or immediately after the
m u s t a c c o m p a n y t h e startling occurrence.
equivocal act


(Sec. 43)

(255) Entries in the ordinary course of business means

that the entries have been made regularly, as is usual, in
the management of the trade or business. It is essential
that there be regularity in the entries. It is otherwise
known as the Shop-Book Rule.
This hearsay exception is commonly encountered in
breach of contract suits and suits for collection of a sum
of money.
(256) Reason for admissibility. Reliability is furnished by the
fact that regularly kept records typically have a high
degree of accuracy.
The law does not fix any precise moment when the entries should be made. It is sufficient if the entry was
made within a reasonable period of time so that it may
appear to have taken place while the memory o the facts
was unimpaired.
(257) Requisites

That the entrant made the entry in his professional capacity or in the performance of a duty
That the entry was made in the ordinary course
of business or duty
The entries must have been made at or near the
time of the transaction to which they relate
The entrant must have been in a position to know
the facts stated in the entries
The entrant must be deceased or unable to

Verbal Acts
Statements accompanying an equivocal act material to the issue and giving it a legal significance.

(258) How regularity of entries proved. It may be proved

by the form in which they appear in the corresponding

Equivocal Act - ambiguous one which in itself does

not signify anything when taken separately.

There is no overriding necessity to bring into courts all

the clerk or employees who individually made the entries
in a long account. It is sufficient that the person who
supervises them testify that:

Thus, in bribery, the declaration made by the third

person accompanying the delivery of money is

The principal act to be characterized must be

The equivocal act must be material to the
Verbal acts must be contemporaneous with
the equivocal act


The account was prepared under his supervision

The entries were regularly entered in the ordinary
course of business


(259) Requisites






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That it was made by a public officer or by another person specially enjoined by law to do
That it was made by a public officer in the performance of his duty, or by another person in the
performance of a duty specially enjoined by law
The public officer or the other person had sufficient knowledge of the facts stated by him,
which he must have acquired personally or through
official information

(260) To qualify their statements as official information acquired by the officers who prepared the reports, the
persons who made the statements not only must have
personal knowledge of the facts stated but must have
the duty to give such statements for record. (Ex. Monthly
reports of judges).


Examples: Mortality tables and accepted actuarial and

annuity tables, rate of exchange in newspapers, etc.
(265) Reason for admissibility

(261) Reason for admissibility


Necessity - practical impossibility of requiring the

officials attendance as a witness to testify to the
innumerable transactions occurring in the course of
his duty


Trustworthiness - there is a presumption of regularity in the performance of official duty

(262) Probative value: It is only a prima facie evidence of the

facts stated therein.
It is not essential for the officer making the official
statement to have a personal knowledge of the facts
stated by him, it being sufficient that the official information was acquired by officers who prepared the reports
from persons who do not only have personal knowledge
of the facts stated but must have the duty to give such
statements for the record (Africa v. Caltex, 1966).
It is well settled that entries in the police blotter should
not be given due significance or probative value as they
are not conclusive evidence of the truth of their contents
but merely of the fact that they were recorded. Hence,
they do not constitute conclusive proof (People v. Cabrera, Jr., 2003)
(263) Distinguish entries in the course of business
from entries in official records
Entries in the Course of


Necessity - because of the actual inaccessibility of

the persons responsible for the compilation of matters contained in a list, register, periodical or other
published compilation and tremendous inconvenience it would cause to the court if it would issue
summons to these numerous individuals


Trustworthiness - they have no motive to deceive

and they further realize that unless the list, register,
periodical or other published compilation are prepared with care and accuracy, their work will have
no commercial or probative value


(266) In order that a published treatise, periodical or pamphlet
on a subject of law, history, science or art may be admissible, it is necessary either:

Needs authentication

Need not be authenticated

Best evidence rule applies

Exception to the best

evidence rule (irremovability
of public records)

The entries are made

pursuant to a duty, either
legal, contractual, moral or

The entrant is a public officer,

or if a private individual, must
have acted pursuant to a
specific legal duty



Necessity - the ordinary expert witness has no

knowledge derived from personal observation. He
virtually reproduces, literally or in substance, conclusions of others which he accepts on the authority of the eminent names responsible for them. It
would be costly to refuse to accept information
from a competent source ready at hand.


Trustworthiness - the learned writers have no motive to misrepresent. Perhaps, they may be biased
in favor of the truth as they see it and most importantly, it is not a bias in favor of a litigant in the

(268) Learned writers have no motive to misrepresent. He is

aware that his work will be carefully scrutinized by the
learned members of his profession and that he shall be
subject to criticisms and ultimately rejected as an authority on the subject matter if his conclusions are found
to be invalid.

(269) Requisites

(264) Requisites

That the court can take judicial notice of it

A witness, expert in the subject, testifies that the
write of the statement in the treatise, periodical, or
pamphlet is recognized in his profession or calling
as expert in the subject

(267) Reason for admissibility

Entries in Official Records

The person who made the There is no such requirement

entries must be dead or
unable to testify

Statements of matters of interest to persons engaged in an occupation

The statements must be contained in a list, register,
periodical or other published compilation
That compilation is published for use by persons
engaged in that occupation
Is generally relied upon by them

The testimony or depositions of a witness deceased or unable to testify




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The testimony was given in a former case or proceeding, judicial or administrative

Involving the same parties
Relating to the same subject matter; and
The adverse party having had an opportunity to
cross-examine him

(270) What may be admitted as evidence is testimony or deposition. A decision in a previous case involving the
same parties and subject matter does not fall under the
The requirement of identity of parties is met where the
party in the former case is in privity with, or is substantially the same as, a party in the present case.
What is considered as a testimony in the former trial is
the transcript of the witness testimony.
(271) In criminal cases, either party may utilize as part of its
evidence the testimony of a witness who is deceased,
out of or cannot with due diligence be found in the
Philippines, unavailable, or otherwise unable to testify,
given in another case or proceeding, judicial or administrative, involving the same parties and subject matter,
the adverse party having the opportunity to cross-examine him (Rule 115, Sec. 1(f))


lowing factors be present: (a) training and education; (b)

particular, first-hand familiarity with the facts of the case
and (c) presentation of authorities or standards upon
which his opinion is based.
An expert witness may base his opinion either on the
first-hand knowledge of the facts or on the basis of hypothetical questions where the facts are presented to
him hypothetically and on the assumption that they are
true, formulates his opinion on the hypothesis.
(274) Expert evidence is admissible only if:

The court is not, however, bound by the opinion of an

expert. Expert opinion evidence is to be considered or
weighed by the court like any other testimony, in the
light of its own general knowledge and experience upon
the subject of inquiry.
(275) In presenting an expert witness:

(272) Opinion is an inference or conclusion drawn from facts

GR: Witnesses must give the facts personally observed
by him and not their inferences, conclusions or opinions.



Opinion of expert witness (Sec. 49) - on a matter

requiring special knowledge, skill, experience or
training which he is shown to possess


Opinion of ordinary witness (Sec. 50)


The identity of a person about whom he has

adequate knowledge
A handwriting with which he has sufficient
The mental sanity of a person with whom he is
sufficiently acquainted
The witness impressions of the emotion, behavior, condition or appearance of a person

Reason for admissibility. It is for the court to form an

opinion concerning the facts in proof of which evidence
is offered. Witness must testify to facts within their
knowledge and may not state their opinions.

Test: Whether the opinion called for will aid the fact finder in resolving an issue.
There is no definite standard of determining the degree
of skill or knowledge that a witness must possess in
order to qualify as an expert. It is sufficient that the fol-

Introduce and qualify the witness

Let him give his factual testimony, if he has knowledge of the facts
Begin the hypothetical question by asking him to
assume certain facts as true
Conclude the question, by, first asking the expert if
he has an opinion on a certain point assuming that
these facts are true and secondly, asking him, after
ha has answered affirmatively, to give his opinion
on the point
After he has stated his opinion, ask him to give his

(276) Hypothetical question. Hypothetical questions may be

asked of an expert to elicit his opinion. Courts, however,
are not necessarily bound by the experts findings.
A proper hypothetical question places before the expert
witness assumed facts which have been proved. It then
calls for an opinion based thereon.
Hypothetical questions must include only facts that are
supported by the evidence.
(277) Standards for Expert Testimony

Frye Standard
Scientific evidence is admissible if it was based on
a scientific technique generally accepted as reliable
in the scientific community.


Schwartz Standard
The admissibility of specific test results in a particular case hinges on the laboratorys compliance with
appropriate standards and controls, and the availability of their testing data and results.


Daubert Standard
The judge must ensure that the testimonys reasoning or method is scientifically valid and is relevant to the issue. Admissibility would depend on
factors such as:


(273) Expert evidence is the testimony of one possessing in
regard to a particular subject or department of human
activity, knowledge which is not usually acquired by
other persons.

The matter to be testified requires expertise; and

The witness has been qualified as an expert



Whether the theory or technique can be or has

been tested
Whether the theory or technique has been
subjected to peer review and publication



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The known or potential rate of error

The existence and maintenance of standards
controlling the techniques operation
Whether the theory or technique is generally
accepted in the scientific community


This prevents a pronouncement of guilt not because there exists sufficient evidence of his guilt,
but because he is a bad man.

Kumho Standard
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if:


XPN to the XPN:

In our jurisdiction, the restrictive tests for admissibility

established by Frye-Schwartz and Daubert-Kumho go
into the weight of the evidence. (Herrera v. Alba, 2005)


Proof of the bad character of the victim in a murder

case is not admissible if the crime was committed
through treachery and premeditation


In prosecution for rape, evidence of complainants

past sexual conduct, opinion thereof or of his/her
reputation shall not be admitted unless, and only to
the extent that the court finds that such evidence is
material and relevant to the case.


In Civil Cases - The moral character of either party

thereto cannot be proved unless it is pertinent to
the issue of character involved in the case (ex. In
civil actions for damages arising from the offenses
of libel, slander or seduction).


In Witnesses - Both criminal and civil, the bad

moral character of a witness may always be proved
by either party (Sec. 11, Rule 132) but not evidence
of his good moral character, unless such character
has been impeached (Sec. 14, Rule 132)


(278) Ordinary opinion evidence is that which is given by a
witness who is of ordinary capacity and who has by
opportunity acquired a particular knowledge which is
outside the limits of common observation and which
may be of value in elucidating a matter under consideration.
Shorthand rendering of facts. This is also known as instantaneous conclusions of the mind. The witness may
testify on his impressions of the emotion, behavior, condition and appearance of a person.
The memory may retain no single detail indeed. One may
never have recognized a single detail yet the appearance
of the man may have left upon them mind an indelible
impression as to his physical and mental condition.

Proving good or bad character of a party. The rule is that

testimony to prove good or bad character of a party to a
civil action or of the defendant in a criminal prosecution
must relate and be confined to the general reputation
which such person sustains in the community or neighborhood win which he lives or has lived.

(279) Character Evidence (Sec. 51)

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

Specific conduct of the party exhibiting character is not

allowed to prove the character of such person for three
reasons: undue prejudice, unfair surprise and confusion
of issues.

It is not the same as a mans reputation because the

latter depends on attributes which others believe one to


In Criminal Cases - Preponderance of evidence


Accused may prove his good moral character

which is pertinent to the moral trait involved in the
offense charged. (Ex. In prosecutions for estafa,
perjury or false testimony wherein the persons
moral trait for honesty or probity is involved.

As to the offended party, his good or bad moral

character may be proved as long as it tends to
establish the probability or improbability of the
offense charged
(Ex. If the theory of the accused is that he acted in
self-defense, the character of the victim for violence, turbulence, revengefulness and the like may
throw light on the probability of his having been the

The testimony is based upon sufficient facts or

The testimony is the product of reliable principles and methods; and
The witness has applied the principles and
methods reliably to the facts of the case

GR: Character evidence is not admissible in evidence

under Sec. 51 of Rule 130. Ratio: The evidence of a
persons character does not prove that such person
acted in conformity with such character or trait in a particular occasion.

The prosecution may not prove bad moral character of the accused unless in rebuttal when the latter
opens the issue by introducing evidence of his
good moral character




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RULE 131

(280) Burden of proof (onus probandi) (Sec. 1)
Burden of proof / Risk of Non-Persuasion - the duty
of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount
of evidence required by law.
Proof is the establishment of a requisite degree of belief
in the mind of the trier of fact as to the fact in issue.
Two separate burdens in burden of proof:

Burden of going forward - that of producing evidence to support cause of action

Burden of persuasion - the burden of persuading
the trier of fact that the burdened party is entitled to

Ei incumbit probatio qui dicit, no qui negat - He wo

asserts, not he who denies, must prove.

If the prosecution does not have a prima facie case, it is

futile to waste time in considering the evidence presented by the defense. SHould the prosecution succeed in
establishing a prima facie case against the accused, the
burden is shifted upon the accused to prove otherwise.
Under the Speedy Trial Act, if the accused is not brought
to trial within the time required, the information shall be
dismissed on the motion of the accused. In this case,
the burden of proof of supporting such motion is with
the accused. (Sec. 13, RA 8493)
A plea of self-defense shifts the burden of proof from the
prosecution to the defense since such a plea means that
the accused admits to having performed the criminal
act, but disclaims legal liability on the ground that his life
has been exposed to harm before he committed the act
in defense of himself.
An accused, who claims justifying or exempting circumstances by way of defense, has the burden of proof to
establish such defense by clear and convincing evidence.
(282) Stage when burden of proof may be determined.


In Civil Cases:

In civil cases, it is determined primarily on the pleadings

since it is where the allegations and defenses are made
although it may be changed during the pre-trial and
during the proceedings.


The plaintiff has the burden of proof to show the

truth of his allegations if the defendant raises a
negative defense
The defendant has the burden of proof if he raises
an affirmative defense on the complaint of the

In criminal cases, the accused raises his defenses during

the pre-trial conference. However, the issues may not be
changed anymore after the pre-trial conference unlike in
civil cases since it will already be a violation of the right
of the accused to be informed of the nature and cause
of the accusation against him.

Note: In a civil case, the plaintiff is always compelled to

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

(283) Test to determine where burden of proof lies.

Which party would fail if he offers no evidence?

(281) Upon whom burden of proof rests


When the defendant files his answer and sets up purely

a negative defense and no evidence is presented by
both sides it is the defendant who will win the case since
the plaintiff has not presented the quantum of evidence
required by law.
On the other hand, when the defendant in his answer
sets up an affirmative defense, if there is no evidence
presented by both sides, it is the defendant who will lose
the case.
Nevertheless, the defendant can raise both negative and
affirmative defenses. Defenses and objections not
pleaded either in a motion to dismiss or in the answer
are deemed waived. (Rule 9, Sec. 1)

In Civil Cases:

The burden of proof is with the prosecution by reason of

the presumption of innocence.
It is required that courts determine first if the evidence of
the prosecution has at least shown a prima facie case
before considering the evidence of the defense.

(284) Degree of proof that satisfies the burden of proof.


In Civil Cases - Preponderance of evidence


In Criminal Cases
To sustain


Evidence of guilt Engenders a wellbeyond reasonable founded belief of

the fact of the
commission of a


Issuance of
Warrant of Arrest
P ro b a b l e c a u s e
(ex. that there is
reasonable ground
to believe that the
accused has
committed an

In Administrative Cases - Substantial evidence

(in a petition for a writ of amparo, the parties shall
establish their claims by substantial evidence).

(285) Hierarchy of evidence


Proof beyond reasonable doubt

Clear and convincing evidence
Preponderance of evidence
Substantial evidence

(286) Burden of evidence is the logical necessity on a party

during a particular time of the trial to create a prima facie
case in his favor or to destroy that created against him
by presenting evidence.



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In both civil and criminal cases, the burden of evidence

lies on the party who asserts an affirmative allegation.
(287) Distinguish burden of proof from burden of evidence
Burden of Proof

Burden of Evidence

Does not shift and remains

throughout the entire case
exactly where the pleadings
originally placed it.

Shifts from party to party

depending upon the
exigencies of the case in the
course of the trial.

Generally determined by the Generally determined by the

pleadings filed by the party.
developments of the trial, or
by provisions of substantive
law or procedural rules which
may relieve the party from
presenting evidence on the
facts alleged.

(288) Upon whom burden of evidence rests


In Civil Cases: The plaintiff has to prove his affirmative allegations in the complaint and the defendant has to prove the affirmative allegations in his
counterclaim and his affirmative defenses.


In Criminal Cases: The prosecution has to prove

its affirmative allegations in the information regarding the elements of the crime as well as the attendant circumstances; while the defense has to prove
its affirmative allegations regarding the existence of
justifying or exempting circumstances, absolutory
causes or mitigating circumstances.

Burden of Proof

Burden of Evidence

It does not shift the burden of

proof, which remains where it
is, but by the presumption,
the one who has that burden
is relieved from the time
b e i n g , f ro m i n t ro d u c i n g
evidence in support of his
averment because the
presumption stands in the
place of evidence.

It creates a prima facie case

and thereby sustains the said
burden of evidence on the
point which it covers, shifting
it to the other party. It relieves
those favored thereby of the
burden of proving the fact

Presumptions shift the burden of producing evidence

with regard to the presumed fact.
(293) Theory of Bursting Bubble or Thayerian Theory.
When opposing evidence comes into the case, the presumption, having served its purpose, is no longer operative and the issue determined on the evidence just as
though no presumption had ever existed. The effect of
this rule is to continue the burden of persuasion on him
who initially had the benefit of the presumption. In other
words, the presumption does not shift the burden.
(294) Classification of presumptions

Presumption of Law (Praesumptiones Juris). It is

a deduction which the law expressly directs to be
made form particular facts.


Presumption of Fact (Praesumptiones Hominis).

It is a deduction which reason draws from facts
proved without an express direction from the law to
that effect.

(289) Principle of negativing averments

Presumption of Law

GR: Negative allegations need not be proved, whether in

a civil or criminal action.
XPN: Where such negative allegations is an essential
part of the cause of action or defense, such negative
allegation does not have to be proved if it is only for the
purpose of denying the existence of a document which
should properly be in the custody of the adverse party.
In a criminal case, the rule is that if the subject of the
negative averment inheres in the offense as an essential
ingredient thereof, the prosecution has the burden of
proving the same. In view, however, of the difficult office
of proving a negative allegation, the prosecution, under
such circumstance, need to do no more than make a
prima facie case from the best evidence obtainable.
(People v. Quebral, 1939)
(290) Presumption is an inference as to the existence or nonexistence of a fact which courts are permitted to draw
from the proof of other facts.
(291) Distinguish presumptions from judicial admissions
and judicial notice

Judicial Admissions and

Judicial Notice

The proponent still has to As a rule, the proponent need

introduce evidence of the not introduce any evidence.
basis of the presumption.

(292) Effect of legal presumption upon

Presumption of Fact

Certain inference must be Discretion is vested in the

made whenever the facts tribunal as to drawing the
appear which furnish the inference
basis of the inference
Reduced to fixed rules and Derived wholly and directly
form a part of the system of form the circumstances of the
particular case by means of
the common experience of

(295) Presumptions of Law may be divided into:


Conclusive Presumption - a presumption of law

that is not permitted to be overcome by any proof
to the contrary


Disputable Presumption - that which the law

permits to be overcome or contradicted by proofs
to the contrary; otherwise, the same remains satisfactory.

(296) Conclusive Presumptions (Sec. 2). The following are

instances of conclusive presumptions.

Estoppel in Pais (Equitable Estoppel) - Whenever

a party has, by his own declaration, act, or omission, intentionally and deliberately led to another to
believe a particular thing true, and to act upon such
belief, he cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify
Requisites as to the party to be estopped:


Conduct amounting to false representation or




40 / 65
Equipoise Rule: Where the evidence gives rise to
two probabilities, one consistent with defendants
innocence and another indicative of his guilt, that
which is favorable to the accused should be considered.

Intent or at least expectation that the conduct

shall be acted upon
Knowledge, actual or constructive of the real

Requisites as to the party claiming estoppel:


Lack of knowledge of truth as to the facts in

Reliance in good faith upon the conduct or
statements of the party to be estopped
Action or inaction based thereon to his detriment or prejudice (Kalalo v. Luz)


Presumption that a person takes ordinary

care of his concerns
Al men are presumed to be sane and normal and
subject to be moved by substantially the same
motives. When of age and sane, they must take
care of themselves. Courts operate not because
one person has been defeated or overcome by
another but because he has been defeated or overcome illegally. There must be a violation of law, the
commission of what the law knows as an actionable wrong, before the courts are authorized to lay
hold of the situation and remedy it. (Vales v. Villa,


Presumption of suppression of evidence

The natural conclusion is that the proof if produced,
instead of rebutting would support the inference
against him and the court is justified in acting upon
that conclusion.

Through estoppel an admission or representation is

rendered conclusive upon the person making it and
cannot be denied or disproved as against the person relying thereon (Art. 1431, Civil Code). Estoppel
is effective only as between the parties thereto or
their successors in interest (Art. 1439, Civil Code).
Laches - failure or neglect for an unreasonable and
unexplained length of time, to do that which, by
exercising due diligence, could or should have been
done earlier; it is negligence or omission to assert a
right within a reasonable length of time warranting a
presumption that the party entitled to assert it either has abandoned or declined to assert it. (Tijam
v. Sibonghanoy)


Estoppel by Deed - The tenant is not permitted to

deny the title of his landlord at the time of commencement of the relation of landlord and tenant
between them.


When presumption will not apply:

Two points to remember:




Estoppel may attach even though the landlord

does not have title at the commencement of
the relations
Estoppel may inure in favor of the successor

What a tenant is estopped from denying is the title

of his landlord at the time of the commencement of
the landlord-tenant relationship. If the title asserted
is one that is alleged to have been acquired subsequent to the commencement of that relation, the
presumption will not apply.


Presumption of Innocence
Applies to both civil and criminal cases. This presumption accompanies the accused throughout the
trial down to the moment of conviction. This presumption disappears after conviction and the appellate court then will presume the accused guilty.

Presumption from possession of stolen goods

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


Presumption that a person in a public office

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

By reason of this presumption, an accused is not

called upon to offer evidence on his behalf for his
freedom is forfeited only if the requisite quantum of
proof necessary for conviction be in existence.
Basis: Founded on the principle of justice and is
intended not to protect the guilty but to prevent the
conviction of an innocent person.

When the suppression of evidence is not willful

When the evidence suppressed or withheld is
merely corroborative or cumulative
When the evidence is at the disposal of both
When the suppression is an exercise of privilege


(297) Disputable Presumptions (Sec. 3). The following presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence:

That the evidence is material

That the party had the opportunity to produce
the same
That the said evidence is available only to said

The burden of proof is on the adverse party to show

that he was not appointed or designated.

Presumption that an official duty has been

regularly performed



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Innocence and not wrongdoing is to be presumed

An official oath will not be violated
A republican form of government cannot survive long unless a limit is placed upon controversies and certain trust and confidence reposed in each governmental department or
agent at least to the extent of such presumption

The presumption of regularity and legality of official

acts is applicable in criminal as well as in civil cases.
Note: In writ of amparo cases, the presumption of
regularity in the performance of official duty may
not be invoked by the respondent therein who is a
public officer or employee.
Neither does the presumption apply in custodial
This presumption of authority is not confined to
official appointees. It has been extended to persons
who have been appointed pursuant to a local or
special statute to act in quasi-public or quasi-official capacities and to professional men (ex. surgeons and attorneys)

Those who are engaged in a given trade or business are presumed to be acquainted with the general customs and usages of the occupation and
with such other facts as are necessarily incident to
the proper conduct of the business.
(298) No presumption of legitimacy or illegitimacy (Sec.
4). There is no presumption of legitimacy or illegitimacy
of a child born after 300 days following the dissolution of
the marriage or the separation of the spouses. Whoever
alleges the legitimacy or illegitimacy of such child must
prove his allegation.
Under the Rules on DNA Evidence:

DNA results that exclude the putative parent from

paternity shall be conclusive proof of non-paternity


If the value of the Probability of Paternity is less

than 99.9%, the results of the DNA testing shall be
considered as corroborative evidence


If equivalent to 99.9% or higher, there shall be a

disputable presumption of paternity.

Omnia praesumuntur rite et solemniter esse acta

donec probetur in contrarium - All things are presumed to have been done regularly and with due
formality until the contrary is proved.
While ordinarily, irregularity will not be presumed,
an adverse presumption may arise where the official act in question appears to be irregular on it

Presumption of regularity of judicial proceedings

A court or judge acting as such, whether in the
Philippines or elsewhere, is acting in a lawful exercise of jurisdiction.
The court rendering the judgment is presumed to
have jurisdiction over the subject matter and the
parties and to have rendered a judgment valid in
every respect.
Jurisdiction is presumed in all cases, be it the superior or inferior court. However, jurisdiction to render
a judgment in a particular case or against particular
persons may not be presumed where the record
itself shows that jurisdiction has not been acquired
or where there is something in the record showing
the absence of jurisdiction.


Presumption that private transactions have

been done fairly and with regularity
An individual intends to do right rather than wrong
and intends to do only what he has the right to do.
In the absence of proof to the contrary, there is a
presumption that all men act fairly, honestly and in
good faith.


Presumption that the ordinary course of business has been followed




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RULE 132

(299) Witnesses. Witnesses are those who testify in a case or
give evidence before a judicial tribunal.


(305) What is conditional examination of witnesses?

(306) How is conditional examination of witnesses conducted in criminal cases?

With respect to a prosecution witness, the conditional examination takes place where the case is
pending (Rule 119, Sec. 15)


In case of a defense witness, it can be before another judge, a member of the IBP when designated
by the court, or before an inferior court if designated by a superior court (Rule 119, Secs. 12-13)

(300) How are testimonies given?

It is usually given orally, in open court. Therefore, generally, the testimonies of witnesses cannot be presented in
One instance when the testimonies of witnesses may be
given in affidavits is under the Rules on Summary Procedure.
Depositions need not be taken in open court.
Another instance where testimony may be given in another place other than in open court is on the Examination of a Child Witness or Victim. Through the use of live
link television, the judge may question the child in
chambers or in some other comfortable place other than
the courtroom, in the presence of the support person,
guardian ad litem, prosecutor and counsel for the parties.
(301) What is the purpose of open court testimony?
It is to enable the court to judge the credibility of the
witness by the witness manner of testifying, their intelligence and their appearance.
(302) What is an oath and what is an affirmation?
An oath is an outward pledge made under an immediate
sense of responsibility to God or a solemn appeal to the
Supreme Being in attestation of the truth of some statement.
An affirmation is a solemn and formal declaration or
assertion that the witness will tell the truth, this being
substituted for an oath in certain cases.

(307) Proceedings to be recorded. The questions propounded to a witness and his answers thereto shall be
recorded. Also to be recorded are the statements made
by the judge, any of the parties or any of the counsels. In
fact, the entire proceedings of the trial or hearing must
be recorded. The recording may be by shorthand, stenotype or any means of recording found suitable by the


(308) Obligation of a Witness. A witness must answer questions, although his answer may tend to establish a claim
against him.
(309) Rights of a Witness.

To be protected from irrelevant, improper or insulting questions, and from harsh or insulting demeanor


Not to be detained longer than the interests of justice require


Not to be examined except only as to matters pertinent to the issue


Not to give an answer which will tend to subject

him to a penalty for an offense unless otherwise
provided by law


Not to give an answer which will tend to degrade

his reputation, unless it be to the very fact at issue
or to a fact from which the fact at issue would be
presumed. But a witness must answer to the fact of
his previous final conviction for an offense

(303) What is the rule on oath or affirmation?

The general rule is that the testimony of witnesses shall
be given under oath or affirmation.
This is to affect the conscience of the witness to compel
him to speak the truth; and that if he willfully falsifies that
truth, he may be punished for his perjury.
The right to have the witness sworn may be waived, if a
party fails to object to the taking of the testimony of a
witness without the administration of an oath.
(304) Questions propounded to a witness must:

Be relevant
Not be indefinite or uncertain
Not be argumentative
Not call for conclusions of law
Not call for opinion or hearsay evidence
Not call for illegal answer

Not call for self-incriminating testimony

Not be leading
Not be misleading
Not tend to degrade the reputation of a witness
Not be repetitious
Not call for a narration

(310) What is the right of a witness to be free from personal violence?

The action of the judge in seizing the witness by the
shoulder and turning him about (to look to the judge)
was unwarranted and an interference with that free from
from unlawful personal violence to which every witness
is entitled while giving the testimony in court, which his
attorney had the right to protest and to demand that the
incident be made of record. [In Re: Aguas (1901)]



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(311) What are answers tending to establish a claim?

Self incrimination relates to criminal proceedings only,
not to a civil action, or to evidence that may be used
against the witness in such action, or to questions of
property or business.

ted written interrogatories to the defendant. (Rule 25,

Sec. 6)
(317) What are the classifications of immunity statutes?

Use Immunity - Only prohibits the use of witness

compelled testimony and its fruit in any manner in
connection with the criminal prosecution of the
witness. It does not render a witness immune from


Transactional Immunity - Grants immunity to the

witness from prosecution for an offense to which
his compelled testimony relates.

(312) What is the scope of the right against self incrimination?


No person shall be compelled to be a witness

against himself
The rule may be invoked in any court or proceedings
The rule only covers testimonial compulsion and
production by him of incriminating documents and

The right against self-incrimination is a protection

against testimonial compulsion. It prohibits the use of
physical or moral compulsion to extort communications
from the accused, not an exclusion of his body as evidence.
The witness is not, however, the sole judge as to
whether his answers, if given will tend to show that he is
guilty of a crime. The determination of this question is for
the trial judge.
The right against self-incrimination is granted only in
favor of individuals.
It likewise extends to administrative proceedings with a
criminal or penal aspect.
(313) Distinguish the right against self-incrimination of
the accused from that of an ordinary witness.

Ordinary Witness

Cannot be compelled to
testify or produce evidence in
the criminal case in which he
is the accused or one of the
accused, he cannot be
compelled to do so even by
subpoena or other processes
or order of the court. He
cannot be required either for
the prosecution, for the coaccused, or even for himself.

May be compelled to testify

by subpoena, having only the
right to refuse to answer a
particular incriminating
question at the time it is put
to him.

(318) Examination of witness by trial judge

Judges must not only be impartial, but must also appear
to be impartial. However, this is not to say that judges
must remain passive or silent during the proceedings. A
judge should properly intervene in the presentation of
evidence to expedite and prevent unnecessary waste of
It is the judges prerogative and duty to ask clarificatory
questions to ferret out the truth.
What is proscribed is undue interference by propounding
questions to the witnesses which will have the effect of
or will tend to build or bolster the case for one of the
(319) Who may be admitted in the witness protection
program according to the Witness Protection, Security and Benefit Act (R.A. 6981)?
Any person who has witnessed or has knowledge or
information on the commission of a crime and has testified or is testifying or about to testify before any judicial
or quasi-judicial body, or before any investigating authority, may be admitted into the program, provided that:


If the witness is the accused, he may totally refuse to

take the stand.
(314) When is an act testimonial? When is there compulsion?
It is testimonial if it explicitly or implicitly relates to a
factual assertion or discloses information.
There is compulsion only when a witness has asserted a
right to refuse to disclose self-incriminating information
and this refusal has been overridden.
(315) Does the right against testimonial compulsion
apply to forced re-enactments?
Yes, it comes within the ban since it is communicative in
(316) Limitation if a witness is a party in a civil action.
Before the plaintiff could compel the defendant to be a
witness, the plaintiff must first prove that he has submit-


The offense in which his testimony will be used is a

grave felony as defined under the RPC or its
equivalent under special laws
His testimony can be substantially corroborated
it its material points
He or any member of his family within the second
degree of consanguinity or affinity is subjected to
threats to his life or bodily injury
He is not a law enforcement officer

(320) Who is a state witness?

A state witness is a person who has participated in the
commission of a crime and desires to be a witness for
the state. He shall be admitted to the witness protection
program whenever the following circumstances are


The offense in which his testimony will be used is a

grave felony as defined under the RPC or its
equivalent under special laws
Absolute necessity for his testimony
There is no direct evidence available for proper
prosecution of the offense committed
His testimony can be substantially corroborated
on its material points
He does not appear to be the most guilty




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He has not, at any time, been convicted of any

crime involving moral turpitude

(321) What is the procedure for admission as state witness to the witness protection program?
Before any person is admitted into the program he shall
execute a sworn statement describing in detail the
manner the offense was committed and his participation
If his application is denied, said sworn statement and
other testimony given in support of said application shall
not be admissible in evidence.
Admission into the program shall entitle such state witness to immunity from criminal prosecution for the offenses in which his testimony will be given and used.
Failure without just cause of the witness to testify when
lawfully obliged to do so, shall be cause for his prosecution for contempt. If he testifies falsely or evasively, he
shall be liable for perjury. His immunity shall be removed
and he shall be subject to criminal prosecution.
(322) What is the order in the examination of an individual witness?

Direct examination
Redirect examination
Re-cross examination

(323) What is direct examination?

Direct examination is the examination-in-chief of a
witness by the party presenting him on the facts relevant
to the issue.
Its purpose is to elicit facts about the clients cause of
action or defense.
(324) What is cross-examination?
Cross examination is the most reliable and effective
way known of testing the credibility and accuracy of a
Its purposes include:
To discredit the witness
To discredit the testimony of the witness
To clarify certain matters
To elicit admissions from a witness

(325) What are the scope and limitations of cross-examination?

The witness may be cross-examined by the adverse
party as to any matters stated in the direct examination,
or connected therewith.

American rule - restricts cross-examination to

facts and circumstances which are connected with
the matters that have been stated in the direct examination of the witness.

Under Philippine jurisdiction, we follow the two rules,

specifically under the following instances:

In general, we follow the English rule, which allows

the cross-examination to elicit all important facts
bearing upon the issue, but this does not mean that
a party by doing so is making the witness his own
in accordance with Sec. 5.

We follow the American rule as to the accused or

hostile witness, who may only be cross-examined
on matter covered by direct examination.

(326) What is the doctrine of incomplete testimony?

When cross-examination cannot be done or completed
due to causes attributable to the party who offered the
witness, the incomplete testimony is rendered incompetent and should be stricken from the record.
XPN: Where the prosecution witness was extensively
cross-examined on the material points and thereafter
failed to appear and cannot be produced despite a warrant for his arrest.
(327) When may testimony be stricken off for lack of

The order is optional in the sense that the parties are not
required to avail of all the examination provided under
the rules.



English rule - where a witness is called to testify

to a particular fact, he becomes a witness for all
purposes and may be fully cross-examined upon all
matters material to the issue, the examination not
being confined to the matters inquired about in the
direct examination.

It depends on who is at fault.


If it is the party presenting the witness who is at

fault, then the direct examination can be expunged


If the inability to cross-examine was attributable to

the adverse party (cross-examiner), then there can
be no forfeiture of the direct testimony

(328) Is a party bound by the testimony of his witness?

The general rule is that a party who voluntarily offers the
testimony of a witness in the case is bound by the testimony of said witness.
XPN: A party is not bound when calling the following:

Adverse party
Hostile witness
Unwilling witness
Witness required by law to be presented

(329) Who is a hostile witness?

A witness may be considered as unwilling or hostile only
if so declared by the court upon adequate showing of:

His adverse interest

Unjustified reluctance to testify; or
His having misled the party into calling him to the
witness stand

(330) What is re-direct examination?

Its principal object is to prevent injustice to the witness
and the party who has called him by affording an opportunity to the witness to explain or amplify the testimony
which he has given on cross-examination or to explain
any apparent contradiction or inconsistency in his



45 / 65

statements, an opportunity which is not ordinarily afforded him during his cross-examination.
The witness may be allowed to reaffirm or explain his
statements, their meaning or import and to minimize or
destroy discrediting tendencies.
Note: If in the exercise of discretion, the court admits
new matter in re-examination or if explanation of the
answers given is necessary, the court may permit a recross examination.
(331) What is the purpose of re-cross examination?
Its purpose is to overcome the other partys attempt to
rehabilitate a witness or to rebut damaging evidence
brought out on cross-examination.
Note: It is not a matter of right on re-cross examination
for counsel to touch on matters not brought on the redirect examination of the witness.
Re-cross examination of the witness is limited to new
matters brought out on the re-direct examination of the
witness and also on such other matters as may be allowed by the court in its discretion.
(332) What is the rule on recalling a witness?
The general rule is that after the examination of a witness by both sides has been concluded, the witness
cannot be recalled without leave of court.
Ratio: A witness cannot be detained longer than the
interest of justice requires.
XPN: Recall has been expressly reserved with approval
of the court.
While under the strict rules of practice, impeaching
questions should be propounded to a witness before he
has left the stand, it is generally held permissible to recall a witness who has left the stand for the purpose of
impeachment or to lay a foundation therefor.
(333) What are leading questions and what is the rule
regarding them?
Leading questions are those which suggest to the
witness the answer which the examining party desires. It
is generally not allowed.
The test whether a question is leading or not is the suggestiveness of its substance.


On cross-examination
On preliminary matters
When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a
child of tender years or is of feeble mind
Unwilling or hostile witness
Witness is an adverse party or an officer, director, or
managing agent of a public or private corporation
or of a partnership or association which is an adverse party

Leading questions on direct examination. As a rule, leading questions are not allowed on direct examination.



When the witness is ignorant, or a child of tender

years; or is feeble-minded or a deaf-mute and there
is difficulty in getting direct and intelligible answers
form such witness
Hostile witness
When the witness is the adverse party of when the
witness is an adverse officer, director, managing
agent of a corporation, partnership or association
which is an adverse party

(334) What is the reason for allowing leading questions

on cross-examination?
The witness is not the cross-examining partys witness.
He is expected to be adverse or hostile to the crossexaminer. He is not expected to cooperate.
(335) What is a misleading question?
A misleading question is one which assumes as true
facts not yet testified to by the witness, or contrary to
that which he has previously stated. It is not allowed.

When waived
Asking hypothetical questions to an expert witness

(336) What is the rule regarding the number of counsels

examining a witness?
Only one counsel should be allowed to examine a witness in a single stage. However, the other counsel may
make objection to the testimony.
Ratio: To protect the witness from undue and confusing
interrogation; and to secure system and brevity by giving
control of the interrogation to a single hand.
(337) When is a question preliminary?
When the question does not touch on any issue.
A question that merely suggests a subject without suggesting an answer or a specific thing is not a leading
Example: State whether anything occurred between
you and the defendants on the evening of January 9,
(338) Impeachment of adverse partys witness
To impeach a witness means to discredit the witness
testimony. It is a fundamental right on cross-examination. Since the witness credibility is always in issue, it is
never beyond the permissible scope of cross-examination.
(339) What are the ways of impeaching an adverse partys witness? (Sec. 11)


By contradictory evidence
By evidence that the general reputation for
truth, honesty, or integrity of the witness is
By prior inconsistent statements

Other modes of impeachment aside from Sec. 11:


By involving him during cross-examination in contradiction

On preliminary matters




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By showing the impossibility or improbability of his

By proving action or conduct of the witness inconsistent with his testimony
By showing bias, interest or hostile feeling against
the adverse party

verse interest; (b) unjustifiable reluctance to testify; and

(c) such witness misled the party from calling him to the
witness stand.

The impeachment is limited to bad reputation and the

bad reputation must be for lack of veracity and does not
extend to bad reputation for lack of morals (ex. a witness
may be discredited because he is a well-known liar but
not if he is a well-known sex addict)

(344) Explain the process of impeaching a witness by

evidence of inconsistent statements


Not every aspect of a persons reputation may be the

subject of impeachment. Evidence of bad reputation for
the purpose of impeachment should refer only to the
following specific aspects: for truth; for honesty; for
(340) Distinguish contradictory evidence from prior inconsistent statements
Contradictory Evidence

Prior Inconsistent

It refers to other testimony of

the same witness, or other
evidence presented by him in
the same case, but not the
testimony of another witness

It refers to statements, oral or

documentary, made by the
witness sought to be
impeached on occasions
other than the trial in which
he is testifying

(341) What is the rule on prior convictions?

The theory here is that the credibility of the witness is
affected by his having been convicted of a crime. It does
not matter if the crime is serious or a light or minor offense.
(342) What is rehabilitation of witnesses?
When the cross-examiner has attempted to impeach a
witness, the party who called the witness is allowed on
redirect to attempt to rehabilitate (to restore the witness credibility). It must appear, however, that the witness credibility has been attacked. Unless credibility is
attacked, there is nothing to rehabilitate.
Note: The fact that a witness has been impeached does
not mean her testimony will be stricken or disregarded.
(343) May a party impeach his own witness?
GR: No, a party is not allowed to impeach his own witness. By calling a witness, the party certifies his credibility.


Witness required by law (ex. In the probate of a will,

if the will is contested, the law requires that the
proponent should present all the attesting witnesses to the will if they are still alive. If any or all of
them testify against the due execution of the will or
do not remember having attested to it or are otherwise of doubtful credibility, the proponent can start
impeaching these witnesses)
Witness is an adverse party
Witness is an unwilling or hostile witness

Mere relationship to one of the parties does not make

one a hostile witness. There must be showing of (a) ad-

Ratio: Without the exception, the party calling the witness will be at the mercy of a treacherous witness.

Two different stages:


The facts discrediting the witness or his testimony

may be elicited from the witness himself upon


The facts discrediting the witness are proved by

extrinsic evidence, i.e., the adverse party in rebuttal
proves by another witness or documentary evidence the facts discrediting the testimony of the
witness under attack.

The process of cross-examining a witness upon the

point of prior contradictory statements is called in the
practice of American courts laying the predicate for
the introduction of contradictory statements. It is almost
universally accepted that unless a ground is thus laid
upon cross-examination, evidence of contradictory
statements are not admissible to impeach a witness.
Before a witness can be impeached by evidence that he
has made at other times statements inconsistent with his
present testimony, it is necessary that a foundation
should have been laid by calling the attention of the
witnesses to the former statements so as to give him
opportunity to explain before the statements were offered in evidence. If the statements be in writing they
must be shown to the witness before any question is put
to him concerning them.
Thus, for instance, if the attorney for the accused had
information that a certain witness had made and signed
a sworn statement before the fiscal materially different
from that given in his testimony before the court, the
attorney in cross-examining the witness should direct his
attention to the discrepancy and ask him if he did or did
not make a statement delivered in court.
A witness is impeached by prior inconsistent statements
by laying the predicate:

By confronting him with such statements, with the

circumstances under which they were made
By asking him whether he made such statements
By giving him the chance to explain the inconsistency

The rule that the attention of the witness be called to the

time, place and circumstances does not apply where the
impeaching evidence is in writing. The writing must be
shown to the witness so that he may read it or it may be
read to him. He must be asked if he wrote it or signed it
and if he admits this, his attention must be called to the
(345) What is the ratio for laying the predicate?

To avoid unfair surprise to the adverse party

To save time, as an admission by the witness may
make the extrinsic proof unnecessary; and




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To give the witness, in fairness to him, a chance to

explain the discrepancy

The mere presentation of the prior declarations of the

witness without the same having been read to him while
testifying in court is insufficient for the desired impeachment of his testimony if he was not given the ample opportunity to explain the supposed discrepancy
(346) Distinguish laying the predicate from laying the
foundation for basis
Laying the Predicate

Paying the Foundation for


It refers only to impeachment

of a witness through prior
inconsistent statements

It refers to a situation where

an evidence which is
otherwise incompetent will be
introduced in evidence
because it falls under the
exceptions to the rule on
exclusion (ex. Under the Best
Evidence Rule, if a party
desired to introduce
secondary evidence, he must
first prove that the writing
was duly executed and that
the original has been lost or
destroyed. Without first laying
the foundation, secondary
evidence will not be admitted
by the court.

(347) What is the effect of a witness denial of making a

If the witness denies making the prior statement or says
that he does not remember making it, the adverse party
should call in rebuttal a witness to prove that such
statement has in fact been made.
(348) What is the rule on prior contradictory statement
as independent evidence?
Prior contradictory statement of a witness which is admissible as independent evidence may be shown without laying the predicate. (Ex. Where said testimony contains admission against interest. The admission is presented as original or independent evidence. This must
be offered in evidence-in-chief and not on rebuttal)
(349) Evidence of good character of witness. Not admissible except when such character has been impeached.
(Sec. 14)
(350) What is the rules on the exclusion and separation
of witnesses? (Sec. 15)
On any trial or hearing, the judge upon motion may exclude from the court any witness not at the time under
examination, so that he may not hear the testimony of
other witnesses. The judge may also cause witnesses to
be kept separate and to be prevented from conversing
with one another until all shall have been examined.
Purpose: So that the testimony of a witness shall not be
influenced by the statements of other witnesses.
Where a witness remains in court notwithstanding the
order excluding him therefrom, such fact may not disqualify him from being a witness but it may affect his

Note: The rule does not apply to parties in civil cases,

nor to the accused in criminal cases, one of his rights
being to be present during the trial.
(351) When may witnesses refer to memorandum? (Sec.
Permitting a witness to aid himself during his testimony
with written memoranda is a concession to the frailty of
human memory.
(352) Distinguish present memory revived or revival of
present memory from past recollection recorded or revival of past recollection.
Present Memory Revived

Past Recollection Recorded

Memory is obscure but there Recollection is zero

is still memory
The main evidence is the The main evidence is the
testimony of the witness
The witness simply testifies Witness must swear that the
that he knows that the writing correctly states the
memorandum is correctly transaction.
written by him or under his
direction; no need to swear

Present memory revived or revival of present memory.

A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred or immediately thereafter, or later so long as the
fact was fresh in his memory and he knew that it was
correctly recorded.
Note: The evidence is still testimonial in character. The
memorandum will not be considered as documentary
Past recollection recorded or revival of past recollection. A witness may also testify from such writing or
record, though he retains no recollection of the particular
facts, if he is able to swear that the writing or record
correctly stated the transaction when made, but such
evidence must be received with caution.
Note: Since there is complete loss of recollection or
memory on the part of the witness, then it is the memorandum itself that will serve as evidence. It will not be
considered as documentary evidence.
The memorandum from which the witness may be permitted to refresh need not be an original writing. it is
sufficient if it is shown that the witness knows the copy
to be a true one, and his memory is refreshed thereby
enables him to testify from his own recollection of the
facts, independent of his confidence in the accuracy of
the copy.
(353) What is the rule of completeness / rule of indivisibility? (Sec. 17)
When part of an act, declaration, conversation, writing or
record is given in evidence by one party, the whole of the
same subject may be inquired into by the other; and
When a detached act, declaration, conversation, writing,
or record is given in evidence, any other act, declaration,
conversation, writing or record necessary to its understanding may also be given in evidence.



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(354) What is the right to inspect writing shown to witness? (Sec. 18)
Whenever a writing is shown to a witness, it may be
inspected by the adverse party.

Public Writing

Private Writing

As to persons

instrument is
evidence even
against third
persons, of the fact
which gave rise to
its due execution
and to the date of
the latter

A private writing
binds only the
parties who
executed it or their
privies, insofar as
due execution and
date of the
document are

As to validity of

C e r t a i n
transactions must
be in a public
d o c u m e n t ,
otherwise they will
not be given any


(355) What is authentication?
Authentication means the process of proving the due
execution and genuineness of the document.
The due execution and genuineness means nothing
more than that the instrument is not spurious, counterfeit, or of different import on its face from the one executed.
A document is a deed, instrument or other duly authorized paper by which something is proved, evidenced or
set forth.
(356) What are the classes of documents?
For the purpose of their presentation in evidence, documents are either public or private.
Public documents are:


The written official acts, or records of the official

acts of the sovereign authority, official bodies and
tribunals, and public officers, whether of the Philippines or of a foreign country
Documents acknowledged before a notary public
except last wills and testaments; and
Public records, kept in the Philippines, or private
documents required by law to be entered therein.

All other writings are private.

Note: Last wills and testaments must undergo an authentication process even if they are notarized. The substantive rule in the Civil Code provides that: No will
shall pass wither real or personal estate unless it is
proved and allowed in the probate court.
Note: A public document is a document in the execution
of which a person in authority or a notary public takes
Note: The public documents above are admissible in
evidence without further proof of their authenticity, and
all that the party presenting them in evidence has to do
is mark them as exhibits and thereafter offer them as
evidence in accordance with the rules.
Note: A private writing is not self-authenticating. It requires proof of their due execution and authentication
before they can be received in evidence.

As to authenticity

Public Writing

Private Writing

A public document
is admissible in
evidence, without
further proof of its
genuineness and
due execution.

A private writing
must be proved
relative to its due
execution and
before it may be

Note: Church registries of birth, marriages and deaths made

subsequent to the promulgation of General OrdersNo. 68 (Dec.
1889) and Act No. 190 (Aug. 1901) are no longer public writings
nor are they kept by duty authorized public officials. They are
private writings and their authenticity must therefore be proved,
as are all other private writings in accordance with the Rules of
Evidence (Llemos v. Llemos, 2007)

(357) How may the due execution and authenticity of a

private document be proved?
The due execution and authenticity of a private document may be proved either by:

Anyone who saw the document executed or written

Evidence of the genuineness of the signature or
handwriting of the maker

(358) When may private writings be admitted in evidence without previous proof of its authenticity
and due execution?

When the genuineness and due execution of the

document is admitted by the adverse party
When such genuineness and due execution are
immaterial to the issue
When the document is an ancient document

Note: The ancient document rule applies only if there are

no other witnesses to determine authenticity.
(359) What are other instances when authentication is
not required?
In order to avoid the authentication of private writings,
the parties can resort to any of the following:

Rule on Actionable Documents - when the adverse party fails to specifically deny under oath the
genuineness and due execution of the actionable
document and to set forth what he claims to be the
facts, the same shall be deemed admitted (Rule 8,
Sec. 8)


Request for Admission - if the party fails to

specifically deny the matters on which the admission is requested within the period given, the genuineness and due execution shall be deemed admitted (Rule 26)


Pre-Trial - the parties can enter stipulations and

admit the genuineness and due execution of the

(360) What are the requirements for the ancient document rule?




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The private document is more than 30 years old

It is produced from custody in which it would naturally be found if genuine
It is unblemished by any alterations or circumstances of suspicions

An ancient document is said to be in proper custody if it

is in the place in which and under the care of the person
with whom it would naturally be. Ratio: The fact of its
coming form the natural and proper place tends to remove presumptions of fraud and strengthen the belief of
its genuineness.
By merely producing the document, it establishes prima
facie its own authentication. The burden then shifts to
the adverse party to prove that the document is not what
it purports to be or otherwise not authentic.
Computation of age. The time is to be reckoned from the
date of the execution to the day when the instrument is
offered in evidence.
(361) How is the genuineness of the handwriting authenticated? (Sec. 22)


Testimony of the purported writer

The testimony of a witness who has seen the writer
sign his name or actually make the writing whether
the witness attested the instrument or not
The testimony of a witness who is familiar with the
handwriting. Thus, under this rule, the genuineness
of a handwriting may be proved.
a. By any witness who believed it to be the
handwriting of such person because he has
seen the person write or has seen writing purporting to be his upon which the witness has
acted or been charged.
b. By a comparison made by the witness of the
court, with writings admitted or treated as
genuine by the party, against whom the evidence is offered, or proved to be genuine to
the satisfaction of the judge.

must be evidence that is clear, convincing and more

than merely preponderant.


Note: There are two classes of public documents, namely, those issued by competent public officials by reason
of their office, and those executed by private individuals
which are authenticated by notaries public. The other
public documents referred to include notarial documents.
Note: The rule is not absolute in the sense that the contents of a public document are conclusive evidence
against the contracting parties as to the truthfulness of
the statements made therein. They constitute only prima facie evidence of the facts which gave rise to their
execution and of the date of the latter.
(363) What is the rule on proof of official records? (Sec.

If it is a domestic record, it may be evidenced by:

a. An official publication
b. A copy thereof attested by the officer having
custody of the record or his deputy, with a
certificate that such officer has the custody


If it is a foreign record, it may be evidenced by:

a. An official publication
b. A copy thereof attested by the officer having
the custody of the record or his deputy, accompanied by a certificate that such officer
has the custody, which may be made by the
secretary of the embassy or legation, consulgeneral, consul, vice-consul, or consular agent
or foreign service officer and with a seal of his

Handwriting experts are not mandatory.

Weight of expert testimony: It depends upon the assistance he may afford in pointing out distinguishing
marks, characteristics and discrepancies in and between
genuine and false specimens of writings which would
ordinarily escape notice or detection by an untrained
(362) What is the rule on public documents offered as
evidence? (Sec. 23)
Documents consisting of entries in public records made
in the performance of a duty by a public officer are prima
facie evidence of the facts therein stated. All other public
documents are evidence, even against a third person, of
the fact which gave rise to their execution and of the
date of the latter.
Prima facie evidence is evidence which, if unexplained
or uncontradicted, is sufficient to sustain a judgment in
favor of the issue which it supports.
Note: To contradict the facts contained in a notarial document and presumption of regularity in its favor, there

Necessity - practical impossibility of requiring the

officials attendance as a witness to testify to the
innumerable transactions occurring in the course of
his duty
Trustworthiness - there is a presumption of regularity, legality and accuracy.

(364) What must the attestation of copy state? (Sec. 25)

It must state that it is a correct copy of the original or a
specific part thereof, as the case may be.
It must be under the official seal of the attesting officer, if
there be any or if he be clerk of court having a seal, under the seal of such court.
(365) Irremovability of public records (Sec. 26)
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.

To enable others to use the records

To prevent the serious risk of loss
To prevent its exposure to wear and tear



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XPN: Upon order of the court where the inspection of

the record is essential to the just determination of a
pending case.
(366) Public record of a private document (Sec. 27)
If a private writing is inserted officially into a public
record, its record, recording or incorporation into the
public record becomes a public document, but that does
not make the private writing itself a public document so
as to make it admissible without authentication.
(367) Proof of lack of record (Sec. 28)

There shall be no difference between sealed and unsealed private documents insofar as their admissibility
as evidence is concerned.
(372) Documentary evidence in an unofficial language
(Sec. 33)
Documents written in an unofficial language shall not be
admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of
proceedings, parties or their attorneys are directed to
have such translation prepared before trial.

A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is
found to exist in the records of his office, accompanies
by a certificate as above provided, is admissible as evidence that the records of his office contain no such
record or entry.
(368) How judicial record is impeached (Sec. 28)

By evidence of want of jurisdiction in the court or

judicial officer
Collusion between the parties (e.g. legal separation
or annulment cases)
Fraud in the party offering the record, in respect to
the proceedings

Fraud refers to extrinsic fraud, which is a ground for

annulment of judgment.
Extrinsic fraud refers to any fraudulent act of the prevailing party in the litigation which is committed outside of
the trial of the case, whereby the defeated party has
been prevented from exhibiting fully his case by fraud or
deception practiced on him by his opponent.
(369) Proof of notarial documents (Sec. 30)
A notarial document is one which is duly acknowledged
before a notary public.
A document acknowledged before a notary public becomes a public instrument. Hence, its execution and
due authenticity need not be proved.
Note: The person who notarized the document must
really be a notary public, and notarized it in accordance
with the Notarial Law.
Probative value of a notarial document. It is evidence of
the facts expressed therein.
(370) Alterations in documents, how to explain (Sec. 31)
The party producing a document as genuine which has
been altered and appears to have been altered after its
execution, in a part material to the question in dispute,
must account for the alteration. He must show that:

The alteration was made by another, without his

concurrence; or
Was made with the consent of the parties affected
by it; or
Was otherwise properly or innocently made; or
That the alteration did not change the meaning or
language of the instrument

(371) Seal in documents (Sec. 32)



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(373) Offer of evidence (Sec. 34). The court shall consider
no evidence which has not been formally offered. The
purpose for which the evidence is offered must be specified.
(374) What is the procedure in the offer of evidence?

First, there is the formal offer of evidence


Objections are posed on grounds such as evidence offered is immaterial or irrelevant


If objection is sustained: Evidence offered will

not be allowed to be presented in court. The remedy of the offeror is the tender of excluded
evidence / offer or proof

Where the absence of an offer of testimonial evidence

was not objected to as when the witness was crossexamined by the adverse party despite the failure of
counsel to make an offer of the testimony of the witness,
the court must consider the testimony.
Failure to object to the omission of the party offering the
evidence to formally offer the evidence, and the crossexamination by the adverse party constitute a waiver to
the defect.
(378) How an offer of evidence is made (Sec. 34).

The party must state the nature or substance of

the evidence and the specific purpose for which
the evidence is offered


The court shall consider the evidence solely for the

purpose for which it is offered, not for any other

If objection is overruled: Evidence will be allowed to be presented in court


Presentation of evidence offered

(375) Why must the purpose of offer be specified?

To determine whether that piece of evidence should be
admitted or not. Because such evidence may be admissible for several purposes under the doctrine of multiple
admissibility, or may be admissible for one purpose and
not for another, otherwise the adverse party cannot interpose the proper objection.
Evidence submitted for one purpose may not be considered for any other purpose by the judge.
Without the offer, the court cannot determine whether
the evidence is admissible or not. I tis not a mere procedural technicality as it is the only means by which the
court may ascertain and verify the truth of the claims.
In other words, opposition parties will be deprived of
their chance to examine the document and to object to
its admissibility. On the other hand, the appellate court
will have difficulty reviewing the documents not previously scrutinized by the court below.
Note: Where the evidence is inadmissible for the purpose stated in the offer, it must be rejected, though the
same may be admissible for another purpose. The reason is that the adverse party is prevented from objecting
to the admissibility thereof on grounds other than those
available to meet the stated purpose.
(376) Instances when the Court allowed the admission
of evidence not formally offered
In People v. Matte and Mata Vda. de Onete v. Court of
Appeals (1995), the Court allowed evidence not formally
offered to be admitted and considered by the trial court
provided the following circumstances are present:

The same must have been duly identified by testimony duly recorded
The same must have been incorporated in the
records of the case

Likewise when the adverse party cross-examined the

witnesses of the other party testifying on the evidence.
(377) When is there a waiver of formal offer?

(379) When to make an offer (Sec. 35). The proper time to

offer evidence depends on the nature of evidence.
Testimonial / Oral Evidence

Documentary and Object


At the time the witness is After the party has presented

called to testify
his testimonial evidence,
before he rests.
The offer is orally made unless allowed by the court to
be in writing.

Offered only once.

Implied offer - Every time a

question is asked of a witness, there is an implied
automatic offer of the evidence sought to be elicited
by the question. If there is
any objection to the question,
the same must be raised
immediately. Otherwise, there
is a waiver.
Thus, oral evidence is always
being offered twice:
1. Before the witness testifies; and
2. Every time a question is
asked of him

(380) Procedure before documentary and object evidence can be considered by the court

Authentication (except: public document)
Formal offer; and
If the evidence is excluded, an offer of proof

Authentication and identification can be dispensed with

if there is a stipulation on the due execution and genuineness of the private document.
Note: To allow a party to attach any document to his
pleading and then expect the court to consider it as
evidence may draw unwarranted consequences. The
opposing party will be deprived of his chance to examine the document and object to its admissibility.
(381) Stages in the presentation of documentary evidence





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Identification. By identification is meant proof that

the document being presented is the same one
referred to by the witness in his testimony





Marking. All exhibits should be marked to facilitate

their identification. The marking may be made at
the pre-trial or during the trial.
The plaintiff and the prosecution shall use capital
letters (A, B, C, etc.) and the accused shall
use Arabic numbers (1, 2, 3, etc.)



Authentication. The proof of a documents due

execution and genuineness, if the purpose is to
show that it is genuine, or the proof of its forgery, if
the purpose is to show that the document is a
Inspection. Under Sec. 18 of Rule 132, whenever
a writing is shown to a witness, it may be inspected
by the adverse party.
Formal offer. After the termination of the testimonial evidence, the proponent will then make a formal offer and state the purpose of which the document is presented (Rule 132, Sec. 34)
Objections. THe objection to the introduction or
presentation of the document shall be made when
it is formally offered in evidence (Rule 132, Sec. 36)

(382) Distinguish identification from formal offer


Formal Offer

Identification of documentary
evidence is done in the
course of the trial and is
accompanied by the marking
of the evidence as an exhibit

Formal offer of documentary

evidence as an exhibit is
done when the party has
presented his testimonial
evidence before he rests his

Note: The mere fact that a particular document is identified and marked as an exhibit does not mean that it will
be or has been offered as part of the evidence of the
party. The party may decide to formally offer it if it believes this will advance its cause, or it may decide not to
do so at all. It is only when the proponent rests his case
and formally offers the evidence that an objection thereto may be made. Any objection prior thereto is premature.
Documents which may have been marked as exhibits
during the hearing but which were not formally offered in
evidence cannot be considered as evidence nor can
they be given any evidentiary value.
Presentation of a documentary evidence or object evidence for marking and identification during the court of
the trial is not the offer contemplated in the rules. Failure
to object to the evidence at this time should not be construed as a waiver of the objection to the evidence.

(384) When should objection be made? (Sec. 36)

The proper time to make a protest or objection against
the admission of evidence depends on the manner the
evidence is offered.
Manner of Offering
Evidence offered orally


Summary proceedings because it is a proceeding where there is no full-blown trial

Documents judicially admitted or taken judicial
notice of
Documents, affidavits and depositions used in
rendering summary judgments

Time to Make Objection

Made immediately after the
offer is made

For questions propounded Made as soon as the grounds

in the course of the oral t h e r e f o r e s h a l l b e c o m e
examination of a witness
reasonably apparent
In case of an offer of evi- Within 3 days after notice of
dence in writing
the offer unless a different
period is allowed by the court

Objections made at the start of the testimony of a witness are different. Here, the party objecting objects to
the witness testimony in general. The party objecting is
asking the court to disallow the testimony of the witness
or to not allow the witness to testify at all.
A protest or objection against the admission of any evidence must be made at the proper time, and if not so
made, it will be understood to have been waived.
What does the party waive? The objections to its admissibility. The evidence becomes admissible but the waiver
involves no admission that the evidence possesses the
weight attributed to it by the offering party.
(385) Purposes of objections





(383) When formal offer of evidence is not required


Document or affidavits used in deciding quasijudicial or administrative cases

Lost objects previously marked, identified,
described in the record, and testified to by
witnesses who had been subjects of cross-examination in respect to said objects

To keep out inadmissible evidence that would

cause harm to a clients cause. The rules of evidence are not self-operating and hence, must be
invoked by way of an objection
To protect the record, ex. to present the issue of
admissibility of the offered evidence in a way that if
the trial court rules erroneously, the error can be
relied upon for a future appeal
To protect a witness from being harassed on
the stand or form being harassed by the adverse
To expose the adversarys unfair tactics like his
consistently asking obviously leading questions
To give the trial court an opportunity to correct its own errors and at the same time warn the
court that a ruling adverse to the objector may
supply a reason to invoke a higher courts appellate
To avoid a waiver of the inadmissibility of an
otherwise inadmissible evidence

(386) Classification of objections


General objection - It does not go beyond declaring the evidence as immaterial, incompetent, irrelevant or inadmissible. In other words, it does not
specify the grounds of objection. It is also known as
broadside objection.




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They do not clearly indicate to the judge the ground

upon which the objections are predicated, as they
do not sufficiently define to present any question
for review.

The rule, however, does not impose a general or an absolute ban on general objections. There is no compelling
need to specify the ground, if the ground for exclusion
should have been obvious to the judge or to the counsel.

Specific objection - It states why or how the evidence is irrelevant or incompetent. (ex. objection to
the question for being leading)

A general objection to evidence is sufficient where the

ground therefor is so manifest that the trial court could
not fail to understand it, as when the evidence offered is
clearly irrelevant or incompetent.

Some writers hold that an objection that the evidence is

irrelevant may at times not be general. Necessarily,
when the evidence clearly is one which does not prove a
fact in issue, with no probative value and with no relationship to the fact in issue, or inadmissible for any purpose and no other objection is possible, there is no other
ground for the objection except to say that it is irrelevant.
The rule is that a specific objection is always preferred
over a general objection. This is not to say, however, that
a general objection can never be allowed. The rules do
not impose a general or an absolute ban on general
objections. There are cases where the incompetency of
the evidence is so palpable that a mere general objection
is deemed sufficient and where the portion of the evidence objected to is clearly pointed out, and its illegality
is apparent on its face, then the general objection must
be allowed.

(389) When repetition of objection unnecessary. (Sec. 37)

When it becomes reasonably apparent in the course of
the examination of a witness that the questions being
propounded are of the same class as those to which
objection has been made, whether such objection was
sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse
party to record his continuing objection to such class of
(390) Ruling on objections. (Sec. 38)


Formal objection - It is one directed against the

alleged defect in the formulation of the question (ex.
ambiguous question)

The ruling of the court must be given immediately after

the objection is made, unless the court may take a reasonable time to study the questions raised by the objection. Nonetheless, a ruling should always be made during the trial. If no ruling is made during the course of the
trial, counsel would have no means of knowing whether
or not he would be compelled to meet any evidence at
all, hence it would prejudice the substantial rights of the


Substantive objection - Objections made and

directed against the very nature of the evidence (ex.
It is inadmissible either because it is irrelevant or
incompetent or both, e.g. parol, hearsay evidence,
privileged communication, opinion)

The reason for sustaining or overruling an objection need

not be stated. However, if the objection is based on two
or more grounds, a ruling sustaining the objection on
one or some of them must specify the ground or
grounds relied upon.

(387) Requirements to exclude inadmissible evidence


One has to object to the evidence

The objection must be timely made
The grounds for objection must be specified
(specific objection)

The party has a right to object to evidence which he

considers not admissible under the complaint, even if
the questions were asked by the judge.
(388) Reasons why an objection must be specific


So that the judge may understand the question

raised and that the adversary may have an opportunity to remedy the defect, if possible
To make a proper record for the reviewing court in
the event of an appeal

As a rule, failure to specify the grounds for the objection

is in effect a waiver of the objection. Every other objection which is not particularly stated is to be considered
abandoned, except where the evidence could not have
been legally admitted for any purpose whatever.
When evidence is excluded upon a mere general objection, the ruling will be upheld, if any ground in fact existed for the exclusion. It will be assumed, in the absence
of any request by the opposing party or the court to
make the objection definite, that the ruling was made
upon the right ground.

(391) Effect of ruling on objections



When an objection to a question is sustained - the

court declares the question improper, and the witness ought not to answer it
When the objection is overruled - the court declares
the question proper and the witness may answer it

(392) Striking out answer. (Sec. 39)

Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order
the answer given to be stricken off the record.
On proper motion, the court may also order the striking
out of answers which are incompetent, irrelevant or otherwise improper.
(393) Modes of excluding inadmissible evidence

Objection - when the evidence is offered


Motion to strike out or expunge - proper in the

following cases:
a. When the witness answers prematurely before
there is reasonable opportunity for the party to
b. Unresponsive answers





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Answers that are incompetent, irrelevant or

Uncompleted testimonies where there was no
opportunity for the other party to cross-examine
Conditionally admitted evidence not later substantiated

(397) Distinguish offer of proof and offer of evidence

Offer of Proof / Tender of
Excluded Evidence

Offer of Evidence

Only resorted to if admission

is refused by the court for
purposes of review on

Refers to testimonial,
documentary or object
evidence that are presented
or offered in court by a party
so that the court can consider
his evidence when it comes
to the preparation of the

There must be objection before motion to strike.

An objection to a witness disqualification in general
must be made as soon as he is called to the stand and
before his examination begins, provided his disqualification is then known.
(394) Waiver of objections; Belated objections
There is a waiver when there is failure to point out some
defect, irregularity or wrong in the admission or exclusion of evidence. Such failure may be express or implied. A rule of evidence not invoked is waived.
Unless a timely and sufficient objection is made to an
evidence introduced, the reviewing court will not ordinarily consider the question of the propriety of admission of
the evidence. It will not be considered on appeal because there is deemed to be a waiver. The otherwise
inadmissible evidence not objected to will be in the
record for consideration, the same as other evidence.
Once admitted, the evidence is in the case for what it is
worth, and the judge has no power to disregard it for the
sole reason that it could have been excluded if objected
to, nor can he strike it out on his own motion.
However, while the evidence is admissible, it does not
necessarily follow that the same should be given weight.
Admissibility of evidence should not be equated with
weight of evidence.
(395) Tender of excluded evidence. (Sec. 40)
If documents or things offered in evidence are excluded
by the court, the offeror may have the same attached to
or made part of the record. If the evidence excluded is
oral, the offeror may state for the record the name and
other personal circumstances of the witness and the
substance of the proposed testimony.
Otherwise stated, when an attorney is not allowed by the
court to present testimony which he things is competent,
material and necessary to prove his case, he must make
an offer of proof. This is the method of properly preserving the record to the end that the question may be
saved for purposes of review.

(398) The por lo que puedo valer principle

The Supreme Court encourages the admission of borderline evidence for whatever it is worth or por lo que
puedo valer.
It is impossible for a judge, in the early stages of the
development of proof, to know with certainty whether
the testimony is relevant or not; and where there is no
indication of bad faith on the part of the attorney offering
the evidence, the curt may, as a rule, safely accept the
testimony upon the statement of the attorney that the
proof offered will be connected later.
The rulings of the trial court on procedural questions and
on admissibility of evidence during the court of a trial are
interlocutory in nature and may not be the subject of
separate appeals or review on certiorari. These are assigned as errors and reviewed in the appeal taken from
the trial court on the merits of the case.
(399) Two traditional methods of making the tender

Counsel tells the court what the proposed testimony will be, after stating for the record the name and
other personal circumstances of the witness


Question and answer form

The first method has the advantage of brevity and efficiency but it does not create as clear a record as the
second method. The use of the first method is not
mandatory. Whichever method of tender is used, the
advocate must see to it that the offer must be specific
enough to contain the facts and circumstances of the
matter sought to be proved by the excluded evidence.
(400) An offer of proof may be made.

Before the court has ruled on the objection, in

which case its function is to persuade the court to
overrule the objection or deny the privilege invoked


After the court has sustained the objection, in

which case its function is to preserve for the appeal
the evidence excluded by the privilege invoked


Where the offer of proof includes the introduction of

documents, or any of the physical evidence, the
same should be marked for identification so that
they may become a part of the record


To inform the court what is expected to be proved

So that the appellate court may determine from the
record whether the proposed evidence is competent

(396) How tender of excluded evidence is made


As to documentary or object evidence - It may have

the same attached to or made part of the record


As to oral evidence - It may state for the record the

name and other personal circumstances of the
witness and the substance of the proposed testimony.

(401) May an objection be interposed to the manner of

tender of excluded evidence?
The rules are silent on the issue. However, there is no
cogent reason to disallow the objection. If the document
tendered is not described or identified, its substance
stated in vague and general terms or when the purpose



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for which it is offered is not declared, then the evidence

has to be objected to. To have a contrary rule and confer
immunity from objection to such type of evidence would
be to grant a favored status to evidence initially excluded by the trial court.
(402) When offer of proof not required.

When the question to which an objection has been

sustained clearly reveals on its face the substance,
purpose and relevancy of the excluded evidence


When the substance, purpose and relevancy of the

excluded evidence were made known to the court
earlier in the proceedings and such part appears on


Where evidence is inadmissible when offered and

excluded, but thereafter becomes, it must, be reoffered, unless the court indicates that a second
offer would be useless

(403) English Exchequer Rule.

It is a species of mid-1800 English rule pursuant to
which a trial courts error as to the admission of evidence was presumed to have caused prejudice and
therefore, almost automatically required a new trial.
This rule has long been laid to rest for even English appellate courts now disregard an error in the admission of
evidence unless in its opinion, some substantial wrong
or miscarriage of justice has been occasioned, known
as the Harmless Error Rule.

In our jurisdiction, we follow the harmless error rule, for

in dealing with evidence improperly admitted in the trial,
we examine its damaging quality and its impact to the
substantive rights of the litigant. If the impact is slight
and insignificant, we disregard the error as it will not
overcome the weight of the properly admitted evidence
against the prejudiced party.



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RULE 133

(404) Weight of evidence is the probative value or credit that
the court gives to a particular evidence admitted to
prove a fact in issue.
Admissibility of evidence and its weight are different. The
admissibility of evidence depends on its relevance and
competence while the weight of evidence pertains to
evidence already admitted and its tendency to convince
and persuade.
(405) Hierarchy of evidentiary values


Proof beyond reasonable doubt

It is required for conviction of an accused in a
criminal case
That which is the logical and inevitable result
of the evidence on record, exclusive of any
other consideration, of the moral certainty of
the guilt of the accused or that degree of proof
which produces conviction in an unprejudiced
Clear and convincing evidence
This is adduced to overcome a prima facie
case or a disputable presumption
An accused who invokes self-defense must
prove it by clear and convincing evidence
That degree of proof which will produce in the
mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. (ex. extradition proceedings)


Preponderance of evidence
The degree of proof required in civil cases
That which is of greater weight or more convincing than that which is offered in opposition
to it


Substantial evidence
Required to reach a conclusion in administrative proceedings or to establish a fact before
administrative or quasi-judicial bodies
Such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion

Evidence to be believed must not only come form a

credible witness but must also be credible in itself. The
evidence must be natural, reasonable and probable as to
make it easy to believe.
(406) Equipoise Rule (Equiponderance of Evidence). The
doctrine refers to a situation where the evidence of the
parties are evenly balanced or there is doubt on which
side the evidence preponderates. In such case, the decision should be against the party with the burden of

Where the evidence of the parties in a criminal case is

evenly balanced, the constitutional presumption of innocence should tilt the scales in favor of the accused.
The rule is different in a civil case, the party who will lose
is the party who has the burden of proof.
(407) Paraffin Tests. Paraffin tests are inconclusive. The
absence of powder burns in a suspects hand is not
conclusive proof that he has not fired a gun. In fact, the
traces of nitrates can easily be removed by the simple
act of washing ones hand.
(408) Polygraph Tests. A polygraph is an electromechanical
instrument that simultaneously measures and records
certain physiological changes in the human body that
are believed to be involuntarily caused by an examinees
conscious attempt to deceive a questioner.
American courts almost uniformly reject the results of
polygraph tests when offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime, whether the accused or the prosecution seeks its introduction, for the reason that polygraph
has not yet attained scientific acceptance as a reliable
and accurate means of ascertaining truth or deception.
The rule is the same in Philippine jurisdiction.
(409) Preponderance of evidence (Sec. 1)
Preponderance of evidence means that the evidence
adduced by one side is, as a whole, superior to or has
greater weight than that of the other.
In civil cases, the party having the 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
they 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.
(410) Distinguish positive testimony from negative testimony
Positive Testimony

Negative Testimony

It is when the witness affirms It is when a witness states

that a fact did or did not that he did not see or know of
the occurrence of a fact
It has greater weight than
negative testimony since the
witness represents of his
personal knowledge the
presence or absence of a

It has lesser weight than

positive testimony because
there is only a total disclaimer
of personal knowledge.

(411) Proof beyond reasonable doubt (Sec. 2)

In a criminal case, the accused is entitled to an acquittal,
unless his guilt is shown beyond reasonable doubt.
Proof beyond reasonable doubt does not mean such a
degree of proof as, excluding the possibility of error,



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produces absolute certainty. Only the existence of moral

certainty is required.

sion of the crime is purely circumstantial or is inconclusive.

Prosecution must present evidence that is strong

enough to convince the court that the prisoner must be
punished not because he cannot prove that he is innocent but because it has proved that he is guilty.

(416) Flight. Flight form the scene of the crime is a circumstantial evidence which is admissible against him and, if
not explained in a manner consistent with his innocence,
is to be considered as tending to show that he was the
person who committed the deed.

For the defendant, it is enough that he is able to prove

his defenses by preponderance of evidence since it will
create a reasonable doubt as to his guilt. Thus, whenever there is a reasonable doubt, the accuse dis entitled to
an acquittal.
(412) Alibi. As a defense, alibi is inherently weak and crumbles in the light of positive identification by truthful witnesses. It is evidence negative in nature and self-serving
and cannot attain more credibility than the testimonies of
prosecution witnesses who testify on clear and positive
For alibi to prosper, it is not enough for the accused to
prove that he was somewhere else when the crime was
committed. He must likewise prove that it was physically
impossible for him to be present at the crime scene or
its immediate vicinity at the time of its commission.
Requisites of the defense of alibi to prosper.

The presence of the accused in another place at

the time of the commission of the offense


The physical impossibility for him to be at the

scene of the crime at the time of its commission. By
physical impossibility we refer to the distance and
the facility of access between the situs criminis and
the place where he says he was when the crime
was committed.

Alibi is not always false and without merit. Sometimes,

the fact that the accused was somewhere else may just
be the plain and unvarnished truth. But to be exonerating, the defense of alibi must be so airtight that it would
admit of no exception.
(413) Frame up. LIke ailibi, the defense of frame up is viewed
with disfavor as it can easily be concocted. The legal
presumption is that official duty has been regularly performed by government officials in prosecuting a crime.
(414) Delayed reporting by witnesses of what they know
about a crime does not render their testimonies false or
incredible, for the delay may be explained by the natural
reticence of most people and their abhorrence to get
involved in a criminal case. But more than this, there is
always the inherent fear of reprisal, especially if the accused is a man of power and influence. The natural reluctance of a witness to get involved in a criminal case
as well as to give information to the authorities is a matter of judicial notice.
(415) Motive. The general rule is that the prosecution need
not prove motive on the part of the accused when the
latter has been positively identified as the author of the
crime. XPN: It only becomes relevant when the accused
has not been positively identified and proof thereof becomes essential only when the evidence of the commis-

(417) Out-of-court identification. The Supreme Court has

held that the admissibility and reliability of out-of-court
identification of suspects, the Totality of Circumstances Test, which utilizes the following factors:

The witness opportunity to view the criminal at the

time of the crime
The witness degree of attention at that time
THe level of certainty demonstrated by the witness
at the identification
The length of time between the crime and the identification; and
The suggestiveness of the identification procedure

When the identity of the appellant is not established

beyond reasonable doubt, acquittal necessarily follows.
Conviction for a crime rests on the strength of the prosecutions evidence, never on the weakness of that of the
In every criminal prosecution, the prosecution must
prove two things: (1) the commission of the crime and (2)
the identification of the accused as the perpetrator of the
crime. Cursory identification does not suffice to convict
the accused. What is needed is positive identification
made with moral certainty as to the person of the offender.
Eyewitness identification is often decisive of the conviction or acquittal of an accused. Identification of an accused through mug shots is one of the established procedures in pinning down criminals. However, to avoid
charges of impermissible suggestion, there should be
nothing in the photograph that would focus attention on
a single person.
A police line-up is merely a part of the investigation
process by police investigators to ascertain the identity
of offenders or confirm their identification by a witness
to the crime. Police officers are not obliged to assemble
a police line-up as a condition sine qua non to prove the
identity of an offender. If on the basis of the evidence on
hand, police officers are certain of the identity of the
offender, they need not require any police line-up anymore.
(418) Res Ipsa Loquitur. The thing speaks for itself. A
maxim for the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may
permit an inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and
present a question of fact for the defendant to meet with
an explanation. The doctrine is simply a recognition of
postulate that as a matter of common knowledge and
experience, the very nature of certain types of occurrences may justify an inference of negligence on the part
of person who controls the instrumentality causing the
injury, in the absence of some explanation by him. How-



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ever, it does not dispense with the requirement of proof

of negligence.

(419) Credibility of witnesses

In the assessment of the credibility of witnesses, we are
guided by the following well-entrenched rules: (1) that
evidence to be believed must not only spring from the
mouth of a credible witness but must itself be credible,
and (2) findings of facts and assessment of credibility of
witness are matters best left to the trial court who had
the opportunity to personally evaluate the witnesses
demeanor, conduct, and behavior while testifying.
Falsus in uno, falsus in omnibus (False in one
thing, false in everything). If the testimony of the
witness on a material issue is willfully false and given
with an intention to deceive, the court may disregard all
the witness testimony. Nevertheless, the court may
accept as admissible portion or portions of the testimony believed to be true and set aside the fabricated ones.
This is not a mandatory rule of evidence but is applied
by the courts in its discretion.
1. It deals only with weight of evidence and not a
positive rule of law
2. The witnesses false or exaggerated statements on
other matters shall not preclude the acceptance of
such evidence as is relieved from any sign of falsehood
3. The court may accept and reject portions of the
witness testimony depending on the inherent credibility thereof
The credibility of witnesses is best determined by the
trial judge, who has the direct opportunity to observe
and evaluate their demeanor on the witness stand. The
trial courts findings of fact will not be disturbed on appeal, unless there is a clear showing that it plainly overlooked matters of substance which, if considered, might
affect the results of the review.
Rules on Credibility in Rape Cases
The lone testimony of the offended party, if free from
serious and material contradictions, is sufficient to sustain a verdict of conviction. Ratio: No young Filipina of
decent repute would undergo the expense, trouble, inconvenience of a public trial, exposing herself to public
shame and ridicule; suffer scandal, embarrassment and
humiliation of a public trial and publicly admitted that
she was criminally abused unless it is the truth.
The sole, uncorroborated testimony of an accused who
turned state witness may suffice to convict his co-accused if it is given unhesitatingly and in a straightforward
manner and is full of details which by their nature could
not have been the result of deliberate afterthought, otherwise, it needs corroboration, the presence of lack of
which may ultimately decide the case of the prosecution
and the fate of the accused.
Three precepts have guided the Supreme Court in reviewing rape convictions:
1. An accusation for rape can be made with facility, it
is difficult for the person accused, though innocent,
to disprove;
2. That in view of the intrinsic nature of the crime of
rape, where only two persons are usually involved,

the testimony of the complainant is scrutinized with

extreme caution; and
That the evidence of the prosecution stands or falls
on its own merits and cannot be allowed to draw
strength from the weakness of the defense

Sweetheart Theory. Accused admits that he had sexual intercourse with the complainant that fateful day, but
argues that they were lovers and the act is consensual.
However, other than his bare allegations, he adduced no
independent proof that he was the sweetheart of the
victim. His sweetheart defense was neither corroborated
by any other witness nor substantiated by any memento,
love note, picture or token. Furthermore, even assuming
that they were lovers, their relationship did not give him
a license to sexually assault her. Love is not a license to
(420) Extrajudicial confession, not sufficient ground for
conviction (Sec. 3)
An extrajudicial confession is not sufficient ground for
conviction unless corroborated by evidence of corpus
(421) Corpus delicti. Corpus delicti is the actual commission
by someone of the particular crime charged.
Two elements:

That a certain result has been proved

That someone is criminally responsible for the act

Note: The identity of the accused is not a necessary

element of the corpus delicti.
Corpus delicti in its legal sense refers to the fact of the
commission of the crime, not to the physical body of the
deceased or to the ashes of a burned building... The
corpus delicti may be proven by the credible testimony
of a sole witness, not necessarily by physical evidence
such as those aforementioned. (Rimorin v. People, 2003)
Corpus delicti is not synonymous with the whole charge
so as to require that all the elements of the crime be
established independently of the extrajudicial confession. It means there should be some evidence apart from
the confession tending to show the commission of the
(422) Circumstantial evidence, when sufficient (Sec. 4)
It is sufficient for conviction if:

There is more than one circumstance

The facts from which the inferences are derived are
proven; and
The combination of all the circumstances is such as
to produce a conviction beyond reasonable doubt
(People v. Guihama, 2003)

All the circumstances proved must be consistent with

each other, and they are to be taken together as proved.
They must point unerringly to the direction of guilt and
mere suspicions, probabilities, or suppositions do not
warrant a conviction. A conviction based on circumstantial evidence must exclude each and every hypothesis
consistent with innocence.
Reason for its admission: It is due to the necessity, especially in a criminal case. If only direct evidence is al-



59 / 65

lowed, very few convictions could be had. Besides circumstantial evidence is based on sound rational
grounds of everyday logic.
Direct proof of previous agreement to commit a crime is
not necessary to prove conspiracy as it may be deduced
from the acts of the perpetrators before, during and after
the commission which are indicative of a common design, concerted action and concurrence of sentiments.
(Serrano v. Court of Appeals, 2003)
Note: Circumstantial evidence can be utilized not only in
a criminal case but in a civil case as well.
(423) Distinguish direct evidence from circumstantial
Direct Evidence

Circumstantial Evidence

Establishes the existence of a Does not prove the existence

fact in issue without the aid of of a fact in issue directly, but
any inference or presumption. merely provides for logical
inference that such fact really
The witnesses testify directly Each proof is given of facts
of their own knowledge as to and circumstances from
the main facts to be proved.
which the court may infer
other connected facts which
reasonably follow, according
to the common experience of

(424) Positive identification as

circumstantial evidence.
tains essentially to proof of
that of being an eyewitness
sion of the crime.

direct evidence and as

Positive identification peridentity and not per se to
to the very act of commis-

the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied (The Rule on the Writ of Amparo). The same rule
applies to petitions for writ of habeas data (The Rule on
the Writ of Habeas Data)
When may Supreme Court review findings. The evaluation of testimonial evidence by trial courts is accorded
great respect because of its chance to observe firsthand the demeanor of witnesses. The rule is not inflexible but admits of exceptions.
(426) Exceptions to conclusiveness of facts

When the finding is grounded entirely on speculations, surmise or conjecture


When the inference made is manifestly absurd,

mistaken or impossible


When the judgment is premised on a misrepresentation of facts


When there is grave abuse of discretion in the appreciation of facts


When the findings of facts are conflicting


When the CA in making its findings went beyond

the issues of the case and the same is contrary to
both the admissions of appellants and appellees


When the findings of fact of the CA are at variance

with those of the trial court, the SC has to review
the evidence in order to arrive at the correct findings based on the record


When the findings of fact are conclusions without

citation of specific evidence on which they are


When the facts set forth in the petition as well as in

the petitioners main and reply briefs are not disputed by the respondents

Two types of positive identification:



A witness may identify a suspect or accused as the

offender as an eyewitness to the very act of the
commission of the crime. This constitutes direct
The second type is when, although a witness may
not have actually witnessed the very act of commission of a crime, he may still be able to positively
identify a suspect or accused as the perpetrator of
a crime as when, for instance, the latter is the person or one of the persons last seen with the victim
immediately before and right after the commission
of the crime. The second type of positive identification forms part of circumstantial evidence.

Note: In the absence of direct evidence, the prosecution

may resort to adducing circumstantial evidence to discharge its burden.
(425) Substantial evidence (Sec. 5)
Factual findings of quasi-judicial agencies which have
acquired expertise in specific matters within their jurisdiction are generally accorded not only respect but at all
times even finality, if such findings are supported by
substantial evidence.

10. The findings of fact of the CA is premised on the

supposed evidence and is contradicted by the evidence on record; and
11. When certain material facts and circumstances
have been overlooked by the trial court, which if
taken into account, would alter the result of the
case in that they would entitle the accused to acquittal
(427) Power of the court to stop further evidence (Sec.
The court has the power to stop the introduction of testimony which will merely be cumulative.
(428) Evidence on motion (Sec. 7)

Administrative bodies cannot require that cases before

such bodies must be proven by preponderance of evidence.

When a motion is based on facts not appearing of

record, the court may hear the matter on affidavits or
depositions presented by the respective parties, but the
court may direct that the mater be heard wholly or partly
on oral testimony or depositions (ex. motion for bail
when bail is not a matter of right since prosecutor must
prove that the evidence of guilt is strong)

Note: If the allegations in the petition for writ of amparo

are proven by substantial evidence, the court shall grant

While the court may hear and rule upon motions solely
on the basis of affidavits or counter-affidavits, if the affi-



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davits contradict each other on matters of fact, the court

can have no basis to make its findings of fact and the
prudent course is to subject the affiants to cross-examination so that the court can decide whom to believe
(Sapida v. de Villanueva, 1972)




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ment not being presented or retained in its original



(429) Electronic document refers to information or the representation of information, data, figures, symbols, 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.
Electronic data message refers to information generated, sent, received or stored by electronic, optical or
similar means.
Electronic signature refers to any distinctive mark,
characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or
electronic document or any methodology or procedures
employed or adopted by a person and executed or
adopted by such person with the intention of authenticating or approving an electronic data message or electronic document.
Digital signature refers to an electronic signature consisting of a transformation of an electronic or an electronic data message using an asymmetric or public
cryptosystem such that a person having the initial untransformed electronic document and the signers public
key can accurately determine:


Whether the transformation was created using the

private key that corresponds to the signers public
key; and
Whether the initial electronic document had been
altered after the transformation was made

Asymmetric or public cryptosystem means a system

capable of generating a secure key pair, consisting of a
private key for creating a digital signature, and a public
key for verifying the digital signature.
(430) What are the requisites for the admissibility of
electronic documents?


Where the law requires a document to be in writing,

the requirement is met by an electronic document if
the said electronic document maintains its integrity
and reliability and can be authenticated so as to be
usable for subsequent reference:
a. The electronic document has remained incomplete and unaltered, apart from the addition of any endorsement and any authorized
change or any change which arises in the
normal course of communication, storage and
display; and
b. The electronic document is reliable in the light
of the purpose for which it was generated and
in the light of all relevant circumstances.
Paragraph (1) applies whether the requirement
therein is in the form of an obligation or whether the
law simply provides consequences for the docu-

Where the law requires that the document be presented or retained in its original form, that requirement is met by an electronic document if:
a. There exists a reliable assurance as to the
integrity of the document from the time it was
first generated in its final form; and
b. That document is capable of being displayed
to the person to whom it is to be presented;
provided that no provision of this act shall
apply to vary any and all requirements of existing laws on formalities required int he execution of documents for their validity.

(431) For evidentiary purposes, an electronic document shall

be the functional equivalent of a written document under
existing laws.
(432) Burden of proof
The person seeking to introduce an electronic data message or electronic document in any legal proceeding has
the burden of proving its authenticity by evidence capable of supporting a finding that the electronic data message or electronic document is what the person claims it
to be.

EVIDENCE (A.M. 01-7-01-SC)
(433) Applicability. Under A.M. 01-7-01-SC, the rules shall
apply to all criminal and civil actions and proceedings,
as well as quasi-judicial and administrative cases.
(434) Electronic documents as functional equivalent of
paper-based documents.
Whenever a rule of evidence refers to the term of writing,
document, record, instrument, memorandum or any
other form of writing, such term shall be deemed to include an electronic document.
An electronic document is admissible in evidence if it
complies with the rules on admissibility prescribed by
the Rules of Court and related laws and is authenticated
in the manner prescribed by these Rules.
(435) When is electronic evidence regarded as being
the equivalent of an original document under the
Best Evidence Rule?
An electronic document shall be regarded as the equivalent of an original document under the Best Evidence
Rule if it is a printout or output readable by sight or other
means, shown to reflect the data accurately.
(436) Manner of authentication of an electronic document

By evidence that it has been digitally signed by the

person purported to have signed the same
By evidence that other appropriate security procedures or devices as may be authorized by the
Supreme Court or by law for the authentication of
electronic documents were applied to the document




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By other evidence showing its integrity and reliability to the satisfaction of the judge

(437) Authentication of electronic signatures


By evidence that a method or process was utilized

to establish a digital signature and verify the same
By any other means provided by law
By any other means satisfactory to the judge as
establishing the genuineness of the electronic signature

(438) Disputable presumptions in relation to electronic



The electronic signature is that of the person to

whom it correlates
The electronic signature was affixed by the person
with the intention of authenticating or approving the
electronic document to which it is related or to
indicate such persons consent to the transaction
embodied therein; and
The methods or processed utilized to affix or verify
the electronic signature operated without error or

(443) Audio, video and similar evidence. Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown,
presented or displayed to the court and shall be identified, explained or authenticated by the person who
made the recording or by some other person competent
to testify on the accuracy thereof.
(444) Ephemeral electronic communication. This refers to
telephone conversations, text messages, chatroom sessions, streaming video and other electronic forms of
communication and the evidence of which is not recorded or retained.


Communication of this type shall be proven by the testimony of a person who was a party to the same or has
personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may
be admitted.

(439) Disputable presumptions relating to digital signatures (in addition to the foregoing)

The information contained in the certificate is correct

The digital signature was created during the operational period of a certificate
The message associated with the digital signature
has not been altered from the time it was signed
A certificate has been issued by the certification
authority indicated therein

(440) Method of proof. All matters relating to the admissibility and evidentiary weight of electronic document may be
established by an affidavit stating the facts of direct
personal knowledge of the affiant or based on authentic
records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained
(441) Cross-examination. The affiant shall be made to affirm
the contents of the affidavit in open court and may be
cross-examined as a matter of right by the adverse party.
(442) Electronic business records are an exception to
the hearsay rule provided:

Made at or near the time of or from transmission or

supply of information
Made by a person with knowledge thereof
Kept in the regular course or conduct of business
Such was the regular practice

All these must be shown by the testimony of the custodian or other qualified witness.
This presumption may be overcome by evidence of the
untrustworthiness of the source of information or the
method or circumstances of the preparation, transmission or storage thereof.



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(445) What is the Judicial Affidavit Rule?


The courts where the rule will apply

The kinds of cases or proceedings where the rule
will apply
The state of the proceeding

(449) Type of cases

The Judicial Affidavit Rule requires that direct examination of a witness, whichis the examination-in-chief of
a witness by the party presenting him on the facts relevant to the issue, shall be in the form of judicial affidavits, subject to the usual mode of cross-examination.
(446) When is the rule effective?
The Rule took effect on 1 January 2013. However, in
criminal cases without private prosecutors, the Supreme
Court allowed public prosecutors in first- and secondlevel courts until the end of 2013 to utilize the affidavits
of the complainant and his witnesses prepared and
submitted in connection with the investigation and filing
of the Information in court. Public prosecutors are required to fully comply with the Rule by 1 January 2014.
During the one-year period when the concession is in
effect, the attending public prosecutor, upon presenting
the witness, shall require the witness to affirm what the
sworn statement contains and may only ask the witness
additional direct examination questions that have not
been amply covered by the sworn statement.
The concession does not apply in criminal cases where
the private complainant is represented by a duly empowered private prosecutor, who has the obligation to
comply with the Rule.

This Rule shall apply to all actions, proceedings, and

incidents requiring the reception of evidence. However,
the Rule shall not apply to small claims cases under
A.M. 08-8-87.
The Rule may apply to criminal cases in three situations,
as follows:

Case congestion and delays plague most courts in

cities, given the huge volume of cases filed each year
and the slow and cumbersome adversarial system that
the judiciary has in place. About 40% of criminal cases
are dismissed annually owing to the fact that complainants simply give up coming to court after repeated
postponements. Few foreign businessmen make longterm investments in the Philippines because its courts
are unable to provide ample and speedy protection to
their investments, keeping its people poor.
In order to reduce the time needed for completing the
testimonies of witnesses in cases under litigation, on 21
February 2012 the Supreme Court approved for piloting
by trial courts in Quezon City the compulsory use of
judicial affidavits in place of the direct testimonies of
witnesses. It is reported that such piloting has quickly
resulted in reducing by about two-thirds the time used
for presenting the testimonies of witnesses, thus speeding up the hearing and adjudication of cases. The adoption of the Rule hopes to replicate nationwide the success of the Quezon City experience in the use of judicial
These reasons for the issuance of the Judicial Affidavit
Rule are contained in the whereas clauses of A.M. No.
(448) What is the scope of application of this Rule?

The maximum of the imposable penalty does not

exceed six years
Regardless of the penalty involved, with respect to
the civil aspect of the actions, or where the accused agrees to the use of the Rule

(450) Courts where the Rules are applicable




(447) Reasons for the issuance of the rule

The applicability of this rule may refer to:

Metropolitan Trial Courts, Municipal Trial Courts in

Cities, the Municipal Trial Courts, the Municipal
Circuit Trial Courts
Sharia Circuit Courts, Sharia District Courts and
the Sharia Appellate Courts
Regional Trial Courts
Court of Tax Appeals
Court of Appeals
Investigating officers and bodies authorized by the
Supreme Court to receive evidence, including the
Integrated Bar of the Philippines (IBP)
Special courts and quasi-judicial bodies, whose
rules of procedure are subject to disapproval of the
Supreme Court, insofar as their existing rules of
procedure contravene the provisions of this Rule

(451) Service and Filing of the Judicial Affidavit

The parties shall serve on the adverse party and file with
the court not later than five days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents.
This Rule amends the existing minimum period, which is
three (3) days, for the service and filing of the pre-trial
brief. Under the new RUle, considering that the judicial
affidavit must be attached to the pre-trial brief, the latter
must be served and filed within five days.
In Criminal cases
This is the only portion of the Rule that provides a separate provision for criminal cases, veering from the simultaneous filing of judicial affidavits by the parties. The
general rule is reiterated, but this time applicable only to
the prosecution, to submit the judicial affidavits of its
witnesses not later than give days before the pre-trial,
serving copies of the same upon the accused. The complainant or public prosecutor shall attach to the affidavits
such documentary or object evidence as he may have,
marking them as Exhibits A, B, C and so on. No further
judicial affidavit, documentary or object evidence shall
be admitted at the trial.



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If the accused, on the other hand, desires to be heard on

his defense after receipt of the judicial affidavit of the
prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses to the
court within ten days from receipt of such affidavits and
serve a copy of each on the public and private prosecutor, including his documentary and object evidence previously marked as Exhibits 1, 2, 3 and so on. These affidavits shall serve as direct testimonies of the accused
and his witnesses when they appear before the court to

almost wholly dependent on the witness. This is no

longer true under this Rule because the lawyers prepares the judicial affidavit which takes the place of the
direct testimony.

It is interesting to note that only the paragraph applicable to the prosecution contains the provision that: No
further judicial affidavit, documentary, or object evidence
shall be admitted at the trial. Does this mean that the
accused is covered by the general rule, which allows the
late filing of the affidavit?


(452) How is the service/filing done?

The Rule specifies only two manners of service or filing
of the affidavit: by personal service or by licensed courier service. It is interesting that there is no express mention of registered mail and it is logical that the term
courier service does not refer to, and does not include,
registered mail. The purpose of the Rule is to expedite
cases and there can be no reliance on the presumptive
receipt by reason of registered mail.
There is no overriding reason why registered mail should
be removed as a manner of service/filing.
(453) The judicial affidavit shall contain the following:





The name, age, residence or business address, and

occupation of the witness;
The name and address of the lawyer who conducts
or supervises the examination of the witness and
the place where the examination is being held;
A statement that the witness is answering the questions asked of him, fully conscious that he does so
under oath, and that he may face criminal liability
for false testimony or perjury;
Questions asked of the witness and his corresponding answers, consecutively numbered that:
Show that circumstances under which the
witness acquired the facts upon which he
Elicit from him those facts which are relevant
to the issues that the case presents; and
iii. Identify the attached documentary and object
evidence and establish their authenticity in
accordance with the Rules of Court
The signature of the witness over his printed name;
A jurat with the signature of the notary public who
administers the oath or an officer who is authorized
by law to administer the same
Attestation of the lawyer

(454) What is the sworn attestation of the lawyer?

One of the problems with the Rule is the fact that judges
only have limited opportunity to observe the demeanor
of the witnesses.
Moreover, even if lawyers briefed the witness, the oral
answer given by the witness during direct examination is

Thus, it is now required that the judicial affidavit shall

contain a sworn attestation at the end, executed by the
lawyer who conducted or supervised the examination of
the witness to the effect that:

He faithfully recorded or caused to be recorded the

questions he asked and the corresponding answers
that the witness gave; and
Neither he nor any other person then present or
assisting him coached the witness regarding the
latters answers

To put teeth to this provision, the Rule provides that a

false attestation shall subject the lawyer mentioned to
disciplinary action, including disbarment. There is no
requirement that the lawyer who prepared the judicial
affidavit must be the one to present the witness in court.
(455) What language should be used in the affidavit?
A judicial affidavit shall be prepared in the language
known to the witness and, if not in English or Filipino,
accompanied by a translation in English or Filipino.
(456) How does the opposing party make objections?
Objection to a witness may take the form of:

A disqualification from testifying; or

To a specific question raised

Under the Rules of Court, objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall
become reasonably apparent. The adverse party may
move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. The court shall promptly rule on the motion
and, if granted, shall cause the marking of any excluded
answer by placing it in brackets under the initials of an
authorized court personnel, without prejudice to a tender
of excluded evidence.
(457) How should the party presenting the witness identify and mark documentary evidence?
The parties documentary or object evidence, if any,
which shall be attached to the judicial affidavits and
marked as Exhibits A, B, C, and so on in the case of the
complainant or the plaintiff, and as Exhibits 1, 2, 3 and
so on in the case of the respondent or the defendant.
(458) How can the party or witness keep the original of
the documentary or object evidence?
Litigants and witnesses, for good reasons, often prefer
to keep the original of the document that is to be presented in and submitted to the court. The Rule provides
for the following procedure:

Attach the document or evidence to the judicial affidavit of the witness/es. This must be
done obviously before the pre-trial conference or
the hearing. This is done by attaching the photocopy of the document or the reproduction or photograph of the object evidence. The Rule provides



65 / 65

that should a party or a witness desire to keep the

original document or object evidence in his possession, he may, after the same has been identified,
marked as exhibit, and authenticated, warrant in his
judicial affidavit that the copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original.

Bring the original during the pre-trial or preliminary conference. This is required under pretrial rules, so the document may be preliminarily
marked as evidence and compared with the original, if needed. The Rule provides that the party or
witness shall bring the original document or object
evidence for comparison during the preliminary
conference with the attached copy, reproduction, or
pictures, failing which the latter shall not be admitted. As provided under pre-trial rules and reiterated
in the Rule, evidence not pre-marked shall not be
admissible as evidence. The Rule indicates that the
pre-marking is done by the parties themselves, not
the clerk of court as provided in the existing pretrial rules. If so, the requirement of preliminary conference, which is conducted before the pre-trial
conference for the purpose of pre-marking documents before the clerk of court, should be dispensed with and revised/deleted form the rules of
procedure to avoid surplusage.

filing a written formal offer of evidence allowed under the

existing rules. A party shall immediately make an oral
offer of evidence of his documentary or object exhibits,
piece by piece, in their chronological order, stating the
purpose or purposes for which he offers the particular
After each piece of exhibit is offered, the adverse party
shall state the legal ground for his objection, if any, to its
admission, and the court shall immediately make its
ruling respecting that exhibit.
After each piece of exhibit is offered, the adverse party
shall state the legal ground for his objection, if any, to its
admission, and the court shall immediately make its
ruling respecting that exhibit.
Since the documentary or object exhibits form part of
the judicial affidavits that describe and authenticate
them, it is sufficient that such exhibits are simply cited
by their markings during the offer of evidence, the objections, and the rulings, dispensing with the description of
each exhibit.

(459) Cross-examination and re-direct examination under the Rule

The adverse party shall have the right to cross-examine
the witness on his judicial affidavit and on the exhibits
attached to the same. The party who presents the witness may also examine him as on re-direct. In every
case, the court shall take active part in examining the
witness to determine his credibility as well as the truth of
his testimony and to elicit the answers that it needs for
resolving the issues.
(460) Resort to subpoena under the Rule
There is no need for a judicial affidavit if the witness is
called to testify through a subpoena. If the government
employee or official, or the requested witness, unjustifiably declines to execute a judicial affidavit or refuses
without just cause to make the relevant books, documents, or other things under his control available for
copying, authentication, and eventual production in
court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum.
The rules governing the issuance of subpoena to the
witnes in this case shall be the same as when taking his
deposition except that the taking of a judicial affidavit
shall be understood to be ex parte.
(461) Formal offer of evidence and objections
The formal offer of documentary or object evidence shall
be made upon the termination of the testimony of a
partys last witness. This obviously means that this is
done when a party rests its case, and not every time the
testimony of each witness is terminated.
The formal offer is made orally in open court, which
shows an obvious intent to do away with the option of