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CRIMINAL LAW REVIEWER

203

UP
L
AW
BAR REVIEWER

2012

REMEDIAL

Evidence
BAR OPERATIONS COMMISSION 2012
EXECUTIVE COMMITTEE
Ramon Carlo Marcaida |Commissioner
Raymond Velasco Mara Kriska Chen |Deputy Commissioners
Barbie Kaye Perez |Secretary
Carmen Cecilia Veneracion |Treasurer
Hazel Angeline Abenoja|Auditor
COMMITTEE HEADS
Eleanor Balaquiao Mark Xavier Oyales | Acads
Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel
Miranda (D) |Special Lectures
Patricia Madarang Marinella Felizmenio |Secretariat
Victoria Caranay |Publicity and Promotions
Loraine Saguinsin Ma. Luz Baldueza |Marketing
Benjamin Joseph Geronimo Jose Lacas |Logistics
Angelo Bernard Ngo Annalee Toda|HR
Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise
Graciello Timothy Reyes |Layout
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Paula Plaza |Linkages

UP LAW BAR OPERATIONS COMMISSION

LAW
REMEDIAL LAW TEAM 2012
Subject Head | Eden Mopia
Evidence Subject Head |
Arianne Cerezo
Contributors | Gianna Maria
Comsti Rose Andrea Milaor
Armando Mislang, Jr.
Rafaella Carmela Reyes
Elaine Tiu
LAYOUT TEAM 2012
Layout Artists | Alyanna
Apacible Noel Luciano RM
Meneses Jenin Velasquez
Mara Villegas Naomi
Quimpo Leslie Octaviano
Yas Refran Cris Bernardino
Layout Head| Graciello
Timothy Reyes

REMEDIAL LAW REVIEWER

Evidence

204
Criminal Procedure
Civil Procedure
Evidence
Special Proceedings

REMEDIAL LAW
General Principles
Judicial Notice and Judicial
Admissions
III. Object (Real) Evidence
IV. Documentary Evidence
V. Testimonial Evidence
VI. Offer and Objection
I.
II.

I. GENERAL PRINCIPLES
A. Concept of Evidence
B. Scope of the Rules of Evidence
C. Evidence in Civil Cases vs. Evidence in
Criminal Cases
D. Proof Versus Evidence
E. Factum
Probans
Versus
Factum
Probandum
F. Admissibility of Evidence
G. Burden of Proof and Burden of Evidence
H. Presumptions
I. Liberal Construction of the Rules of
Evidence
J. Quantum of Evidence (Weight And
Sufficiency of Evidence)

A. Concept of Evidence
The means, sanctioned by these rules, of
ascertaining in a judicial proceeding, the truth
respecting a matter of fact [sec. 1, Rule 128]

B. Scope of the Rules of Evidence


GENERAL RULE: Principle of uniformity
Rules of evidence shall be the same in all courts and
in all trials and hearings. [sec. 2, Rule 128]
EXCEPTIONS: If otherwise provided by:
(1) Law (e.g., 1987 Constitution, statutes);
(2) Rules of Court. [sec. 2, Rule 128]

C. Evidence in Civil Cases Versus


Evidence in Criminal Cases
In Civil Cases
Preponderance of
evidence [sec. 1,
Rule 133]
Offer
of
compromise
NOT
an admission of any
liability [sec. 27,
Rule 130]

Presumption
innocence
NOT apply

of
does

In Criminal Cases
Proof
beyond
reasonable
doubt [sec. 2, Rule 133]
Offer of compromise by the
accused may be received in
evidence
as
an
implied
admission of guilt (except for
quasi-offenses
or
those
allowed by law to be
compromised) [sec. 27, Rule
130]
Presumption of innocence a
constitutional guarantee on
the accused [sec. 14, Art. III]

D. Proof Versus Evidence


Proof
NOT the evidence itself,
but the probative effect
of evidence

Evidence
The medium or means by
which a fact is proved or
disproved

E. Factum Probans Versus Factum


Probandum
Factum Probans
Facts
or
material
evidencing
the
proposition
The evidentiary fact
tending to prove the
fact in issue

Factum Probandum
The proposition to be
established
The fact in issue and to
which the evidence is
directed

Classification of evidence
Object, documentary, and testimonial
Object
Addressed
to
the senses of
the court. [Rule
130, Sec. 1]

Documentary
Consist
of
writings or any
material
containing
letters, words,
numbers,
figures,
symbols
or
other modes of
written
expressions
offered
as
proof of their
contents [Rule
130, sec. 2]

Testimonial
Testimony
or
deposition of a
witness

Direct and circumstantial evidence


Direct Evidence
Proves the fact in
dispute without the aid
of any inference or
presumption

Circumstantial
Indirectly proves a fact
in issue through an
inference drawn from
the
evidence
established

Positive and negative evidence


Positive Evidence
Witness affirms that a
fact did or did not
occur

Negative Evidence
Witness states he/she
did not see or know of
the occurrence of a
fact (e.g., denial)

F. Admissibility of Evidence
Requisites for admissibility of evidence
Evidence is admissible when it is
(1) relevant to the issue AND

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(2) not excluded by law or the ROC. [Rule 128,
Sec. 3]

Relevance of evidence and collateral


matters
Relevancy
Evidence must have such a relation to the fact in
issue as to induce belief in its existence or nonexistence. [Sec. 4, Rule 128]
Collateral matters matters other than the fact in
issue which are offered as a basis for inference as to
the existence or non-existence of the facts in issue
General Rule: Evidence on collateral matters is NOT
allowed. [Sec. 4, Rule 128]
Exception: When it tends in any reasonable degree
to establish the im/probability of fact in issue. [Sec.
4, Rule 128]
NOTE: What is prohibited by the Rules is not
evidence of all collateral matters, but evidence of
irrelevant collateral facts.
Competence
Evidence not excluded by (i) law or (ii) the ROC.
Exclusionary rules of evidence by law are either
constitutional or statutory.
Constitutional
Unreasonable searches
and seizures; privacy of
communication
and
correspondence. [secs.
2-3, Art. III]

Miranda Rights: right to


counsel, prohibition of
torture,
force,
violence,
threat,
intimidation or other
means which vitiate
the
free
will;
prohibition of secret
detention
places,
solitary,
incommunicado. [sec.
12, Art. III]

No person shall be
compelled to be a
witness
against
himself. [Sec.17,Art.III]

Statutory
Lack
of
documentary
stamp tax to documents
required to have one
makes such document
inadmissible as evidence
in court until the requisite
stamp/s shall have been
affixed
thereto
and
cancelled.
[Sec.
201,
NIRC]
Any
communication
obtained by a person, not
being authorized by all
the parties to any private
communication,
by
tapping any wire/cable or
using
any
other
device/arrangement
to
secretly
overhear/intercept/record
such information by using
any device, shall not be
admissible in evidence in
any
judicial/quasijudicial/legislative/
administrative hearing or
investigation. [Secs. 1 and
4, R.A. 4200 (WireTapping Act)]
Rules
on
Electronic
Evidence [sec. 1,Rule 9,]

Under the ROC, Rule 130 is the applicable rule


in determining the admissibility of evidence.
As distinguished from credibility of evidence
Competence
Eligibility of evidence
to be received as such

Credibility
Worthiness of belief;
believability

Doctrines of admissibility
Multiple admissibility
Where the evidence is relevant and competent for
two or more purposes, such evidence shall be
admitted for any or all the purposes for which it is
offered, provided it satisfies all the requisites of law
for its admissibility therefor.
Conditional admissibility
Where the evidence at the time of its offer appears
to be immaterial or irrelevant unless it is connected
with the other facts to be subsequently proved, such
evidence may be received, provided that the other
facts will be proved thereafter; otherwise, the
evidence already given shall be stricken out.
Curative admissibility
Where the court has admitted incompetent evidence
adduced by the adverse party, a party has a right to
introduce the same kind of evidence in his/her
behalf.

Direct and circumstantial evidence


Direct Evidence
Proves the fact in
dispute without the aid
of any inference or
presumption

Circumstantial
Indirectly proves a fact
in issue through an
inference drawn from
the evidence established

Positive and negative evidence


Positive Evidence
Witness affirms that a
fact did or did not occur

Negative Evidence
Witness states he/she
did not see or know of
the occurrence of a fact
(e.g., denial)

Competent and credible evidence


Competence
Eligibility of evidence to
be received as such

Credibility
Worthiness of belief;
believability

205

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206

G. Burden of Proof and Burden of


Evidence

The prosecution must not rely on the weakness of


the evidence of the defense. [Ubales v People
(2008); People v Hu (2008)]

Burden of Proof
Duty of a party to
present evidence on the
facts in issue necessary
to
establish
his/her
claim or defense by the
amount
of
evidence
required by law [Sec. 1,
Rule 131]
Does
not
shift
throughout the trial

Preponderance of evidence

Generally determined by
the pleadings filed by
the party

Burden of Evidence
Duty of a party to go
forward
with
the
evidence to overthrow
any
prima
facie
presumption
against
him/her
[Bautista
v
Sarmiento (1985)]
Shifts from party to
party depending upon
the exigencies of the
case in the course of the
trial
Generally determined by
the developments at the
trial, or by the provisions
of
substantive
or
procedural law

H. Presumptions
1. Conclusive presumptions
2. Disputable presumptions
Conclusive
Presumption becomes
irrebuttable
upon
presentation of the
evidence

Disputable
Satisfactory
if
uncontradicted,
but
may be contradicted
and overcome by other
evidence [sec. 3, Rule
131]

I. Liberal Construction of the Rules of


Evidence
Like all other provisions under the ROC, rules of
evidence must be liberally construed. [sec. 6, Rule
1]
Rules on Electronic Evidence shall likewise be
construed liberally. [sec. 2, Rule 2, Rules on
Electronic Evidence]

J. Quantum of Evidence (Weight And


Sufficiency of Evidence)
Proof beyond reasonable doubt
Applicable quantum of evidence in criminal cases
[sec. 2, Rule 133]
Only moral certainty is required that degree of
proof which produces conviction in an unprejudiced
mind. [sec. 2, Rule 133]
The burden is on the prosecution to prove guilt
beyond reasonable doubt, NOT on the accused to
prove his/her innocence. [Boac v People (2008)]

Applicable quantum of evidence in civil cases [sec.


1, Rule 133]
Means that the evidence adduced by one side is, as a
whole, superior to or has greater weight than that of
the other. [Habagat Grill v. DMC-Urban Property
Developer, Inc.(2005); Bank of the Philippine Islands
v Reyes (2008)]
In determining preponderance of evidence, the court
may consider:
(1) All the facts and circumstances of the case;
(2) The witnesses manner of testifying, their
intelligence, their means and opportunity of
knowing the facts to which they testify, the
nature of the facts to which they testify, the
im/probability of their testimony;
(3) The witnesses interest or want of interest, and
also their personal credibility so far as the same
may legitimately appear upon the trial;
(4) Number of witnesses (although preponderance is
not necessarily equated with the number of
witnesses). [sec. 1, Rule 133]

Substantial evidence
Degree of evidence required in cases filed before
administrative or quasi-judicial bodies [sec. 5, Rule
133]
The amount of relevant evidence which a reasonable
mind might accept as adequate to support a
conclusion [sec. 5, Rule 133]

Clear and convincing evidence


Standard of proof required in granting or denying
bail in extradition cases [Government of Hongkong
Special Administrative Region v Olalia, Jr. (2007)]
Intermediate in character lower than proof beyond
reasonable doubt, but higher than preponderance of
evidence

II. JUDICIAL NOTICE AND


JUDICIAL ADMISSIONS
A.
B.
C.
D.

What Need Not be Proved


Matters of Judicial Notice
Judicial Admissions
Judicial Notice of Foreign Laws, Law of
Nations and Municipal Ordinance

A. What Need Not be Proved


(1) Facts of Judicial Notice
(2) Judicial Admissions
(3) Conclusive Presumptions

REMEDIAL LAW REVIEWER


(3) may be verbal or written. [sec. 4, Rule 129]
[NOTE: Discussed in detail in the succeeding
subsections.]

B. Matters of Judicial Notice


Mandatory (Without need of introduction
of evidence)
(1) Existence and territorial extent of states;
(2) Their political history, forms of government,
and symbols of nationality;
(3) Law of nations;
(4) Admiralty and maritime courts of the world and
their seals;
(5) Political constitution and history of the
Philippines;
(6) Official acts of the legislative, executive and
judicial departments of the Philippines;
(7) Laws of nature;
(8) Measure of time; and
(9) Geographical divisions. [Sec. 1, Rule 129]

Discretionary
(1) Matters of public knowledge;
(2) Matters
capable
of
unquestionable
demonstration; and
(3) Matters ought to be known to judges because of
their judicial functions. [sec. 2, Rule 129]
Judicial notice is NOT judicial knowledge.
With Respect to Courts Own Acts and Records: A
court MAY take judicial notice of its own acts and
records in the same case. [Republic v Court of
Appeals (1997)]
With Respect to Records of Other Cases

General Rule: Courts CANNOT take judicial


notice of the contents or records of other cases
even if both cases may have been tried or are
pending before the same judge. [Prieto v.
Arroyo (1965)]
Exceptions:
(1) When there is no objection, with the
knowledge of the opposing party, the
contents of said other case are clearly
referred to and adopted or read into the
record of the latter; or
(2) When the original or part of the records of
the case 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 [Tabuena v. CA (1991)]

C. Judicial Admissions
Requisites
To be a judicial admission, the same:
(1) must be made by a party to the case;
(2) must be made in the course of the proceedings
in the same case; and

Effect of judicial admissions

207

(1) It does NOT require proof. [sec. 4, Rule 129]


(2) It is conclusive upon the party making it, and
hence, CANNOT be contradicted. [sec. 4, Rule
129]
An original complaint, after being amended, loses its
character as a judicial admission, which would have
required no proof. It becomes merely an extrajudicial admission requiring a formal offer to be
admissible. [Torres v CA (1984)]
A party who judicially admits a fact cannot later
challenge that fact as judicial admissions are a
waiver of proof; production of evidence is dispensed
with. [Alfelor v Halasan (2006]

How judicial
contradicted

admissions

may

be

As an exception to the general rule, judicial


admissions may be contradicted only by showing
that:
(1) It was made through palpable mistake;
(2) No such admission was made.

Conclusive presumptions
Instances of Conclusive Presumptions [Sec. 2,
Rule 131]
(1) Whenever a party has, by his own
declaration/act/omission, intentionally and
deliberately led another to believe a particular
thing is true and to act upon such belief, he
cannot, in any litigation arising out of such
declaration/act/omission, be permitted to
falsify it.
(2) The tenant is not permitted to deny the title of
his landlord at the time of the commencement
of the relation of landlord and tenant between
them.

As
Distinguished
from
Presumptions [Sec. 3, Rule 131]

Disputable

(1) Person is innocent of a crime or wrong;


(2) Unlawful act is done with an unlawful intent;
(3) Person intends the ordinary consequences of his
voluntary act;
(4) Person takes ordinary care of his concerns;
(5) Evidence willfully suppressed would be adverse
if produced;
(6) Money paid by one to another was due to the
latter;
(7) Thing delivered by one to another belonged to
the latter;
(8) Obligation delivered up to the debtor has been
paid;
(9) Prior rents or installments had been paid when a
receipt for the later ones is produced;
(10) A person found in possession of a thing taken in

REMEDIAL LAW REVIEWER

208

the doing of a recent wrongful act is the taker


and doer of the whole act; otherwise, that
things which a person possesses or exercises acts
of ownership over, are owned by him;
(11) Person in possession of an order on himself for
the payment of the money or the delivery of
anything has paid the money or delivered the
thing accordingly;
(12) Person acting in public office was regularly
appointed or elected to it;
(13) Official duty has been regularly performed;
(14) A court or judge acting as such, whether in the
Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction;
(15) All the matters within an issue raised in a case
were laid before the court and passed upon by
it; all matters within an issue raised in a dispute
submitted for arbitration were laid before
arbitrators and passed upon by them;
(16) Private transactions have been fair and regular;
(17) Ordinary course of business has been followed;
(18) There was a sufficient consideration for a
contract;
(19) Negotiable instrument was given or indorsed for
a sufficient consideration;
(20) An indorsement of negotiable instrument was
made before the instrument was overdue and at
the place where the instrument is dated;
(21) A writing is truly dated;
(22) Letter duly directed and mailed was received in
the regular course of the mail;
(23) Presumptions concerning absence:
(a) Ordinary but continued absence of:
(i) 7 years, it being unknown WON the
absentee still lives, he is considered
dead for all purposes, except for those
of succession
(ii) 10 yearsthe absentee shall be
considered dead for the purpose of
opening his succession; but if he
disappeared after the age of 75 years,
an absence of 5 years shall be
sufficient to open his succession
(iii) 4 consecutive yearsthe spouse present
may contract a subsequent marriage if
s/he has a well-founded belief that the
absent spouse is already dead; but
where there is danger of death, an
absence of only 2 years shall be
sufficient for remarriage
(b) Qualified absence
(i) A person on board a vessel lost during a
sea voyage, or an aircraft which is
missing, who has not been heard of for
4 years since the loss of the vessel or
aircraft
(ii) A member of the armed forces who has
taken part in armed hostilities, and has
been missing for 4 years
(iii) A person who has been in danger of
death under other circumstances and
whose existence has not been known
for 4 years
(24) Acquiescence resulted from a belief that the
thing acquiesced in was conformable to the
law/fact;
(25) Things have happened according to the ordinary

course of nature and ordinary nature habits of


life;
(26) Persons acting as copartners have entered into a
contract of co-partnership;
(27) A man and woman deporting themselves as
husband and wife have entered into a lawful
contract of marriage;
(28) Property acquired by a man and a woman who
are capacitated to marry each other and who
live exclusively with each other as husband and
wife without the benefit of marriage or under a
void marriage, has been obtained by their joint
efforts, work or industry;
(29) In cases of cohabitation by a man and a woman
who are not capacitated to marry each other
and who have acquired property through their
actual joint contribution of money, property or
industry,
such
contributions
and
their
corresponding shares including joint deposits of
money and evidences of credit are equal;
(30) Presumptions governing children of women who
contracted another marriage within 300 days
after termination of her former marriage (in the
absence of proof to the contrary):
When Child
was Born
Before
180
days after the
solemnization
of
the
subsequent
marriage
After 180 days
following the
celebration of
the subsequent
marriage

Presumption
Considered to have been
conceived during the former
marriage, provided it be born
within 300 days after the
termination of the former
marriage
Considered
to
have
been
conceived during the subsequent
marriage, even though it be born
within the 300 days after the
termination
of
the
former
marriage.

(31) A thing once proved to exist continues as long as


is usual with things of the nature;
(32) The law has been obeyed;
(33) A printed/published book, purporting to be
printed/published by public authority, was so
printed/published;
(34) A printed/published book, purporting to contain
reports of cases adjudged in tribunals of the
country where the book is published, contains
correct reports of such cases;
(35) A trustee or other person whose duty it was to
convey real property to a particular person has
actually conveyed it to him when such
presumption is necessary to perfect the title of
such person or his successor in interest;
(36) Presumptions regarding survivorship: (Applicable
for all purposes except succession)
(a) When 2 persons perish in the same
calamity,
(b) and it is not shown who died first,
(c) and there are no particular circumstances
from which it can be inferred,
(d) the survivorship is determined from the
probabilities resulting from the strength
and the age of the sexes:

REMEDIAL LAW REVIEWER

Situation
Both < 15 y/o
Both > 60 y/o
One < 15 y/o,
the other > 60 y/o
Both > 15 and < 60
y/o, of different sexes
Both > 15 and <60 y/o,
of the same sex
One < 15 or > 60 y/o,
and the other between
those ages

Person presumed to have


survived
The older
The younger
The one <15
The male
The older
The one between those
ages

(37) As between 2 or more persons called to succeed


each other: If there is a doubt as to which of
them died first, whoever alleges the death of
one prior to the other, shall prove the same. In
the absence of proof, they shall be considered
to have died at the same time.

D. Judicial Notice of Foreign


Laws, Law of Nations and
Municipal Ordinance
Foreign Laws
General Rule: Courts cannot take judicial notice
of foreign laws. [Yao-Kee v. Sy-Gonzales (1988)]
Exceptions: The court may take judicial notice of
the foreign law:
(1) Under
the
Doctrine
of
Processual
Presumption: In the absence of proof, the
foreign law will be presumed to be the same
as the laws of the jurisdiction hearing the
case. [Northwest Orient Airlines v Court of
Appeals (1995)]
(2) Where the foreign law is within the actual
knowledge of the court such as when the law
is generally well-known, had been ruled upon
in previous cases before it and none of the
parties claim otherwise [PCIB v Escolin (1974)]
(3) When the foreign law is part of a published
treatise, periodical or pamphlet and the
writer is recognized in his/her profession or
calling as expert in the subject [sec. 46, Rule
130]

Law of Nations
The Philippines adopts the generally accepted
principles of international law as part of the law of
the land. [Sec. 2, Art. II, 1987 Constitution]
Being part of the law of the land, they are therefore
in the nature of local laws, and hence, subject to
mandatory judicial notice under sec. 1 of Rule 129.

Municipal Ordinances
General Rule: Courts are NOT mandated to take
judicial notice of municipal ordinances. [City of
Manila v. Garcia (1967)]

Exception: If the charter of the concerned city


provides for such judicial notice [City of Manila v.
Garcia (1967)]

III. OBJECT (REAL) EVIDENCE


A.
B.
C.
D.
E.
F.

Nature of Object Evidence


Requisites for Admissibility
Categories of Object Evidence
Demonstrative Evidence
View of an Object or Scene
Chain of Custody in Relation to Section 21
of the Comprehensive Dangerous Drugs
Act of 2002
G. Rule on DNA Evidence (A.M. No. 06-11-5SC)

A. Nature of Object Evidence


Those addressed to the senses of the court [sec. 1,
Rule 130]
The right against self-incrimination CANNOT be
invoked against object evidence.

B. Requisites for Admissibility


Relevant
General Rule: When an object is relevant to the fact
in issue, it may be exhibited to, examined or viewed
by the court. [Sec. 1, Rule 130]
Exceptions: Court may refuse exhibition of object
evidence and rely on testimonial evidence alone if:
(1) Exhibition is contrary to public policy, morals or
decency;
(2) It would result in delays, inconvenience,
unnecessary expenses, out of proportion to the
evidentiary value of such object; [People v.
Tavera]
(3) Evidence would be confusing or misleading.
[People v. Saavedra]

Competent
Evidence be Authenticated
To authenticate the object is to show that the
object is the very thing that is either the subject
matter of the lawsuit or the very one involved to
prove an issue in the case.
Authentication be Made by Competent Witness
To authenticate the object, the witness must have
the capacity to identify the object as the very thing
involved in the litigation.
A witness can testify to those facts which he/she
knows of his/her personal knowledge; that is, which
are derived from his/her own perception. [sec. 36,
Rule 130]

209

REMEDIAL LAW REVIEWER


Formally Offered

210

The court shall consider NO evidence which has not


been formally offered. [sec. 34, Rule 132]

C. Categories of Object Evidence


The Thing Itself
Unique Objects
- Objects that have readily identifiable marks,
e.g., a caliber 45 pistol by virtue of its serial
number
Objects Made Unique
- Objects with no unique characteristic but are
made readily identifiable, e.g., a typical
kitchen knife with identifying marks placed on
it by the witness
Non-Unique Objects
- Objects with no identifying marks and cannot
be marked, e.g., narcotic substances

D. Demonstrative Evidence
Not the actual thing, rather it represents or
demonstrates the real thing, E.g., photographs,
motion pictures and recordings
Audio, photographic and video evidence of events,
acts or transactions shall be admissible provided it
shall be:
(1) shown, presented or displayed to the court, and
(2) identified, explained or authenticated
(a) by the person who made the recording, or
(b) by some other person competent to testify
on the accuracy thereof [sec. 1, Rule 11,
Rules on Electronic Evidence]
Ephemeral electronic communications
Refers to telephone conversations, text messages,
chatroom sessions, streaming audio, streaming
video, and other electronic forms of communication
the evidence of which is not recorded or retained.
[sec. 1(k), Rule 2, Rules on Electronic Evidence]
Shall be proven
(1) by the testimony of a person who was a party to
the same;
(2) by the testimony of a person who has personal
knowledge thereof; or
(3) in the absence or unavailability of such
witnesses, by other competent evidence [sec. 2,
Rule 11, Rules on Electronic Evidence]
When recorded, the communication ceases to be
ephemeral and shall be proven in the same manner
as proving audio, photographic and video evidence
[sec. 2, Rule 11, Rules on Electronic Evidence].

E. View of an Object or Scene


When an object is relevant to the fact in issue, it
may be viewed by the court. [Sec. 1, Rule 130]

F. Chain of Custody in Relation to


Section
21
of
the
Comprehensive
Dangerous
Drugs Act of 2002
Meaning of chain of custody
A method of authenticating evidence which requires
that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the
matter in question is what the proponent claims it to
be [Lopez v People (2008), as cited in People v Dela
Cruz (2008) and People v Agulay (2008)]

In Relation to Drug Cases


The apprehending team having initial custody and
control of the drugs shall:
(1) physically inventory, and
(2) photograph the same,
(3) in the presence of
(a) accused or the person/s from whom the
drugs
were
seized,
or
his/her
representative or counsel
(b) representative from the media and the
Department of Justice
(c) any elected public official
(4) who shall be required to sign the copies of the
inventory and be given a copy thereof. [sec. 21,
Art. II, R.A. 9165 or the Comprehensive
Dangerous Drugs Act of 2002]
Non-compliance with sec. 21 of R.A. 9165,
particularly the making of the inventory and their
photographing of the drugs confiscated will not
render the drugs inadmissible in evidence. The issue
if there is non-compliance with the law is not
admissibility, but of weight evidentiary merit or
probative value. [People v Del Monte (2008)]

G. Rule on DNA Evidence (A.M. No.


06-11-5-SC)
Meaning of DNA
DNA evidence
The totality of the DNA profiles, results and other
genetic information directly generated from DNA
testing of biological samples. [Sec. 3c]

Application for DNA testing order


With prior court order
(1) The appropriate court may, at any time, either
(i) motu proprio or (ii) on application of any
person who has a legal interest in the matter in
litigation, order a DNA testing.
(2) Such order shall issue after due hearing and
notice to the parties upon a showing of the
following:
(a) A biological sample exists that is relevant to
the case;

REMEDIAL LAW REVIEWER


(b) The biological sample: (i) was not
previously subjected to the type of DNA
testing now requested; or (ii) was
previously subjected to DNA testing, but the
results may require confirmation for good
reasons;
(c) The DNA testing uses a scientifically valid
technique;
(d) The DNA testing has the scientific potential
to produce new information that is relevant
to the proper resolution of the case; and
(e) The existence of other factors, if any,
which the court may consider as potentially
affecting the accuracy of integrity of the
DNA testing. [Sec. 4]

Without prior court order


This Rule shall not preclude a DNA testing, without
need of a prior court order, at the behest of any
party. [Sec. 4]

Post-conviction DNA testing; remedy


How Obtained
(1) Without need of prior court order
(2) Available to the prosecution or any person
convicted by final and executory judgment
Requisites:
(1) A biological sample exists
(2) Such sample is relevant to the case
(3) The testing would probably result in the reversal
or modification of the judgment of conviction.
[Sec. 6]
Remedy if Results Favorable to the Convict
Convict or the prosecution may file a petition for a
writ of habeas corpus in the court of origin, CA or SC
or any member of said courts. [Sec. 10]
General Rule: If the court, after due hearing, finds
the petition meritorious, it shall reverse or modify
the judgment of conviction and order the release of
the convict. [Sec. 10]
Exception: If continued detention is justified for a
lawful cause. [Sec. 10]

Assessment of probative value of DNA


evidence and admissibility
Factors in Assessing the Probative Value of DNA
Evidence
(1) Chain of custody
(a) How the biological samples were collected
(b) How they were handled
(c) Possibility of contamination
(2) DNA testing methodology
(a) Procedure followed in analyzing
samples
(b) Advantages and disadvantages of
procedure

(c) Compliance
with
scientifically
standards in conducting the tests

(3) Forensic DNA laboratory


(a) Accreditation by any reputable standardssetting institution
(b) Qualification of the analyst who conducted
the tests
(c) If not accredited, relevant experience of
the laboratory in forensic work and its
credibility
(4) Reliability of the testing result [Sec. 7]

Rules on evaluation of reliability of the


DNA testing Methodology
Factors that Determine the Reliability of the DNA
Testing Methodology
(1) Falsifiability of the principles or methods used
(2) Subject to peer review and publication of the
principles or methods
(3) General acceptance of the principles or methods
by the scientific community
(4) Existence and maintenance of standards and
controls to ensure the correctness of data
generated
(5) Existence
of
an
appropriate
reference
population database
(6) General degree of confidence attributed to
mathematical calculations used in comparing
DNA profiles
(7) Significance and limitation of statistical
calculations used in comparing DNA profiles

IV. DOCUMENTARY EVIDENCE


A.
B.
C.
D.

Meaning of Documentary Evidence


Requisites for Admissibility
Best Evidence Rule
Rules on Electronic Evidence (A.M. No.
01-7-01- SC)
E. Parol Evidence Rule
F. Authentication and Proof of Documents

A. Meaning
Evidence

of

Documentary

Consist of writings or any material containing


letters, words, numbers, figures, symbols or other
modes of written expressions offered as proof of
their contents [Rule 130, sec. 2]
To be deemed documentary evidence, such writings
or materials must be offered as proof of their
contents. If offered for some other purpose, they
constitute OBJECT EVIDENCE.

B. Requisites for Admissibility


the
the

valid

(1) Relevant
(2) Competent
(a) Document be Authenticated

211

REMEDIAL LAW REVIEWER


(b) Authenticated by Competent Witness
(3) Formally Offered in Evidence

212

C. Best Evidence Rule


Meaning of the rule
When the subject of inquiry is the contents of a
document, no evidence shall be admissible other
than the original document itself. [Rule 130, sec. 3]

When applicable (General Rule)


Only when the subject of inquiry is the contents of a
document [Rule 130, sec. 3]
The BER does not apply when the issue is only as to
WON such document was actually executed or in the
circumstances relevant to its execution. [People v
Tandoy (1990)]

Meaning of original
Original document
(1) One the contents of which are the subject of
inquiry
(2) All such copies of a executed at or about the
same time, and with identical contents
NOTE: Carbon copies are deemed duplicate
originals. [People v Tan (1959)]
(3) All such entries made and repeated in the
regular course of business, at/near the time of
the transaction [Rule 130, sec. 4]

Requisites for introduction of secondary


evidence (Exceptions to BER) [Rule 130,
sec. 3]
(1) When the original has been lost or destroyed, or
cannot be produced in court, without bad faith
on the offerors part
(2) When the original is in the custody or under the
control of the party against whom it is offered,
and the latter fails to produce it after
reasonable notice
(3) When the original consists of numerous accounts
or other documents which cannot be examined
in court without great loss of time, and the fact
sought to be established from them is only the
general result of the whole
(4) When the original is a public record in the
custody of a public officer or is recorded in a
public office

D. Rules on Electronic Evidence


(A.M. No. 01-7-01- SC)
Meaning of electronic evidence;
electronic data message

Electronic document
(1) Information
or
the
representation
of
information, data, figures, symbols or other
modes of written expression,
(2) described or however represented, by which a
right
is
established
or
an
obligation
extinguished, or by which a fact may be proved
and affirmed,
(3) which is received, recorded, transmitted, stored
processed, retrieved or produced electronically.
(4) It includes digitally signed documents and any
print-out or output, readable by sight or other
means, which accurately reflects the electronic
data message or electronic document.
For purposes of these Rules, the term electronic
document may be used interchangeably with
electronic data message.
Electronic data message
Information generated, sent, received or stored by
electronic, optical or similar means

Probative value of electronic documents


or evidentiary weight; method of proof
Factors in assessing evidentiary weight of
electronic evidence (Rule 7, 1)
In assessing the evidentiary weight of an electronic
document, the following factors may be considered:
(1) The reliability of the manner or method in which
it was generated, stored or communicated,
including but not limited to
(a) input and output procedures,
(b) controls, tests and checks for accuracy and
reliability of the electronic data message or
document,
(c) in the light of all the circumstances as well
as any relevant agreement;
(2) The reliability of the manner in which its
originator was identified;
(3) The integrity of the information and
communication system in which it is recorded or
stored, including but not limited to the
hardware and computer programs or software
used as well as programming errors;
(a) Whether
the
information
and
communication system or other similar
device was operated in a manner that did
not affect the integrity of the electronic
document, and there are no other
reasonable grounds to doubt the integrity of
the information and communication system
[Rule 7, sec. 2];
(b) Whether the electronic document was
recorded or stored by a party to the
proceedings with interest adverse to that of
the party using it [Rule 7, sec. 2]; or
(c) Whether the electronic document was
recorded or stored in the usual and ordinary
course of business by a person who is not a
party to the proceedings and who did not
act under the control of the party using it
[Rule 7, sec. 2]

REMEDIAL LAW REVIEWER


(4) The familiarity of the witness or the person who
made the entry with the communication and
information system;
(5) The nature and quality of the information which
went into the communication and information
system upon which the electronic data message
or electronic document was based; or
(6) Other factors which the court may consider as
affecting the accuracy or integrity of the
electronic document or electronic data
message.
In any dispute involving the integrity of the
information and communication system in which an
electronic document or electronic data message is
recorded or stored, the court may consider, among
others, the following factors:
(1) Whether the information and communication
system or other similar device was operated in a
manner that did not affect the integrity of the
electronic document, and there are no other
reasonable grounds to doubt the integrity of the
information and communication system;
(2) Whether the electronic document was recorded
or stored by a party to the proceedings with
interest adverse to that of the party using it; or
(3) Whether the electronic document was recorded
or stored in the usual and ordinary course of
business by a person who is not a party to the
proceedings and who did not act under the
control of the party using it.
Text messages have been classified as ephemeral
electronic communication under Section 1(k), Rule
2 of the Rules on Electronic Evidence, and shall be
proven by the testimony of a person who was a party
to the same or has personal knowledge thereof.
[Vidallon-Magtolis v. Salud (2005)]
Method of Proof
(1) Affidavit of Evidence [Rule 9, sec. 1]
(a) Must state facts (i) of direct personal
knowledge, or (ii) based on authentic
records
(b) Must affirmatively show the competence of
the affiant to testify on the matters
contained in the affidavit
(2) Cross-Examination of Deponent [Rule 9, sec. 2]
(a) Affiant shall affirm the contents of the
affidavit in open court.
(b) Affiant may be cross-examined as a matter
of right by the adverse party.

Authentication of electronic documents


and electronic signatures (R5, ss1-3; R11,
ss1-2, REE)
Of Electronic Documents
Burden of Proving Authenticity: The person seeking
to introduce the electronic document [Rule 5, sec.
1]
Manner of Authentication:
(1) By evidence that it had been digitally signed by
the person purported to have signed the same;
(2) By evidence that other appropriate security

procedures or devices as may be authorized by


the Supreme Court or by law for authentication
of electronic documents were applied to the
document; or
(3) By other evidence showing its integrity and
reliability to the satisfaction of the judge. [Rule
5, sec. 2]
Of Electronic Signatures [Rule 6, sec. 2]
(1) By evidence that a method or process was
utilized to establish a digital signature and
verify the same;
(2) By any other means provided by law; or
(3) By any other means satisfactory to the judge

Electronic documents and the hearsay


rule
Business Records as Exception to the Hearsay Rule
What Constitute Business Records: Records of any
business,
institution,
association,
profession,
occupation, and calling of every kind, whether or
not conducted for profit, or for legitimate purposes
[Rule 2, sec. 1b]
Requisites
(1) Made by electronic, optical or other similar
means
(2) Made at or near the time of or from transmission
or supply of information
(3) Made by a person with knowledge thereof
(4) Kept in the regular course or conduct of a
business activity,
(5) Such was the regular practice to make the
memorandum,
report,
record,
or
data
compilation by electronic, optical or similar
means
(6) Abovementioned facts shown by the testimony
of the custodian or other qualified witnesses
[Rule 8, sec. 1]
Exception to the Exception
(1) Untrustworthiness of the source of information
(2) Untrustworthiness of the method of the
preparation, transmission or storage thereof
(3) Untrustworthiness of the circumstances of the
preparation, transmission or storage thereof
[Rule 8, sec. 2]

Audio, photographic, video and


ephemeral evidence
If the foregoing communications are recorded or
embodied in an electronic document, then the
provisions of Rule 5 (Authentication of Electronic
Documents) shall apply.

E. Parol Evidence Rule


Meaning of parol evidence
Any evidence aliunde, whether oral or written,
which is intended or tends to vary or contradict a

213

REMEDIAL LAW REVIEWER


complete and enforceable agreement embodied in a
document.

214

Application of the parol evidence rule


(General Rule)
When the terms of an agreement (including wills)
have been reduced to writing, it is considered as
containing all the terms agreed upon and there can
be, between the parties and their successors in
interest, no evidence of such terms other than the
contents of the written agreement. [Rule 130, sec.
9]
It does not apply when 3rd parties are involved.
[Lechugas v. CA (1986)]

When parol evidence can be introduced


(1) When a party presents parol evidence to modify,
explain or add to the terms of a written
agreement
(2) Ground/s for presenting parol evidence is put in
issue in the pleading
Grounds for presenting parol evidence:
(1) An intrinsic ambiguity, mistake or imperfection
in the written agreement
(2) Failure of the written agreement to express the
true intent and agreement of the parties
thereto
(3) Validity of the written agreement
(4) Existence of other terms agreed to by the
parties or their successors in interest after the
execution of the written agreement.

Distinctions between the best evidence


rule and parol evidence rule
Best Evidence Rule
Contemplates
the
situation wherein the
original writing is not
available and/or there is
a dispute as to whether
said writing is the
original
Prohibits the
introduction of
substitutionary evidence
in lieu of the original
document regardless of
WON it varies the
contents of the original
Applies to all kinds of
documents
Can be invoked by any
party to an action
regardless of WON such
party participated in the
writing involved

Parol Evidence Rule


Presupposes that the
original document is
available in court

Prohibits the varying of


the terms of a written
agreement

F. Authentication and Proof of


Documents
Meaning of authentication
The preliminary step in
admissibility of evidence
Private and Public Documents
Private Documents
When
offered
as
authentic, due execution
and authenticity must be
proved

showing

the

Public Documents
Admissible
without
further proof of its due
execution
and
authenticity

Public and private documents


When a private writing requires
authentication; proof of a private writing
PRIVATE DOCUMENTS
When offered as authentic
General Rule: Authentication necessary
How to Prove Due Execution and Authenticity
(1) By anyone who saw the document executed or
written; OR
(2) By evidence of the genuineness of the signature
or handwriting of the maker [Rule 132, sec. 20]

When evidence of authenticity of a


private writing is not required (ancient
documents)
Exception
(1) Ancient Documents authentication NOT
necessary provided that private document be:
(a) More than 30 years old;
(b) Produced from the custody in which it
would naturally be found if genuine; and
(c) Unblemished by any alterations or
circumstances of suspicion. [Rule 132, sec.
21]
(2) That which it is claimed to be: Authentication
not necessary [Rule 132, sec. 20]

How to prove genuineness of handwriting


Applies
only
to
documents contractual
in nature
(Exception:
wills)
Can be invoked only
when the controversy is
between the parties to
the written agreement,
their privies or any party
directly affected thereby

(1) By any witness who believes it to be the


handwriting of such person because:
(a) he has seen the person write;
(b) he has seen writing purporting to be his
upon which the witness has acted or been
charged, and has thus acquired knowledge
of the handwriting of such person [Rule
132, sec. 22]
(2) A comparison by the witness or the court of the
questioned handwriting, and admitted genuine
specimens thereof or proved to be genuine to
the satisfaction of the judge [Rule 132, sec. 22]

REMEDIAL LAW REVIEWER


(3) Expert evidence [Rule 130, sec. 49]

Public documents as evidence; proof of


official record
PUBLIC DOCUMENTS
Kinds of public documents
(1) 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
(2) Public records, kept in the Philippines, of
private documents required by law to be
entered therein
(3) Notarial documents (except last wills and
testaments)
Proof of public documents
Records of Official Acts [Rule 132, sec. 24]
(1) By an official publication thereof; or
(2) By an attested copy of the document

Attestation of a copy [Rule 132, sec. 25]


Attestation of Copy [Rule 132, sec. 25]
(1) Must be made by the officer having the legal
custody of the record, or by his deputy
(2) Must state that the copy is a correct copy of the
original or a specific part thereof, as the case
may be
(3) Must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of
a court having a seal, under the seal of such
court
If the record is not kept in the Philippines, attested
copy must be accompanied with a certificate, which
(1) May be made by a secretary of the
embassy/legation, consul-general, consul, viceconsul, consular agent or any officer in the
foreign service of the Philippines stationed in
the foreign country in which the record is kept;
(2) Must state that such officer has the custody; and
(3) Must be authenticated by the seal of his office.

Public record of a private document


Public Records of Private Documents [Rule 132, sec.
27]
(1) By the original record; or
(2) By a copy thereof, attested by the legal
custodian of the record, with an appropriate
certificate that such officer has the custody.
[Rule 132, sec. 27]
Note: Please refer to Attestation of Copy under
the immediately preceding subsection.

Proof of lack of record [Rule 132, sec.


28]
(1) Written statement
(a) Signed by an officer having the custody of
an official record or by his deputy
(b) Must state that after diligent search, no
record or entry of a specified tenor is found

to exist in the records of his office


(2) Certificate
(a) Accompanying the written statement
(b) Must state that that such officer has the
custody

How a judicial record is impeached


What to Establish to Impeach Judicial Record [Rule
132, sec. 29]
(1) Want of jurisdiction in the court or judicial
officer;
(2) Collusion between the parties; OR
(3) Fraud in the party offering the record, with
respect to the proceedings

Proof of notarial documents


Notarial Documents (except last wills and
testaments) [Rule 132, sec. 30]
(1) May be presented in evidence without further
proof, the certificate of acknowledgment being
prima facie evidence of the execution of the
instrument or document involved.
(2) Such notarized documents are evidence, even
against 3rd persons, of the facts which gave rise
to their execution and of the date of execution.
[Rule 132, sec. 23]

How to explain alterations in a document


Alterations in a Document [Rule 132, sec. 31]
Requisites
(1) Document is being presented as genuine;
(2) Document has been altered and appears to have
been altered;
(3) Alteration was made after execution of the
document; and
(4) Alteration is in a part material to the question in
dispute
What to Show about the Alteration
(1) Was made by another, without his concurrence;
(2) Was made with the consent of the parties
affected by it;
(3) Was otherwise properly or innocently made; or
(4) Did not change the meaning or language of the
instrument.
Whose Burden of Proof
Party producing the document must account for the
alteration. Failure to do so would result in the
inadmissibility of evidence.

Documentary evidence in an unofficial


language [Rule 132, sec. 33]
NOT admissible unless accompanied by a translation
into English or Filipino.
Parties or their attorneys are directed to have the
translation prepared before trial.

215

REMEDIAL LAW REVIEWER

216
V. TESTIMONIAL EVIDENCE
A. Qualifications of a Witness
B. Competency versus Credibility of a
Witness
C. Disqualifications of Witnesses
D. Examination of a Witness
E. Admissions and Confessions
F. Hearsay Rule
G. Opinion Rule
H. Character Evidence
I. Rule on Examination of a Child Witness
(A.M. No. 004-07-SC)

I. With respect to the witness

A. Qualifications of a
[Rule 130, sec. 20]

Witness

All persons who can perceive, and, perceiving, can


make their known perception to others, may be
witnesses.
Religious/political belief, interest in the outcome of
the case, or conviction of a crime unless otherwise
provided by law, shall not be ground for
disqualification.

B. Competency versus Credibility


of a Witness
Competency
A matter of law and of
rules
Refers to the basic
qualifications
of
a
witness as his capacity
to perceive and his
capacity to communicate
his perception to others

Credibility
Has nothing to do with
the law or rules
Refers to the weight and
trustworthiness
or
reliability
of
the
testimony

of

By reason of mental incapacity [Rule 130, sec. 21a]

Requisites
(1) Person must be incapable of intelligently
making known his perception to others
(2) His incapability must exist at the time of his
production for examination
A mental retardate is not for this reason alone
disqualified from being a witness. Acceptance of his
testimony depends on its nature and credibility or,
otherwise put, the quality of his perceptions and the
manner he can make them known to the court.
[People v. Salomon (1993)]
By reason of immaturity [Rule 130, sec. 21b]

Incapacity must occur at the time the witness


perceives the event.

2. Disqualification
marriage

by

reason

of

Also known as Marital Disqualification Rule or


Spousal Immunity
Requisites
(1) Marriage is valid and existing as of the time of
the offer of testimony.
(2) Other spouse is a party to the action.
Exceptions [Rule 130, sec. 22]: Spouse MAY testify
for or against the other even without the consent of
the latter:
(1) In a civil case by one against the other
(2) In a criminal case for a crime committed by one
against the other or the latter's direct
descendants/ascendants.
Rationale [Alvarez v. Ramirez (2005)]
(1) There is identity of interests between husband
and wife;
(2) If one were to testify for or against the other,
there is a consequent danger of perjury;
(3) Policy of the law is to guard the security and
confidence of private life, and to prevent
domestic disunion and unhappiness; and
(4) Where there is want of domestic tranquility,
there is danger of punishing one spouse through
the hostile testimony of the other.

3. Disqualification by reason of death


or insanity of adverse party

Also known as Dead Mans Statute or Survivorship


Rule

C. Disqualifications of Witnesses
1. Disqualification by reason
mental capacity or immaturity

Requisites
(1) Mental maturity of the witness (child) must
render him incapable of perceiving the facts
respecting which he is examined.
(2) He is incapable of relating his perception
truthfully.

Requisites [Rule 130, Sec. 23]


(1) Defendant is the executor or administrator or a
representative of the deceased or of the person
of unsound mind;
(2) Suit is upon a claim by the plaintiff against the
estate of said deceased or person of unsound
mind;
(3) Witness is the plaintiff, or an assignor of that
party, or a person in whose behalf the case is
prosecuted; and
(4) Subject of the testimony is as to any matter of
fact occurring before the death of such
deceased person or before such person became
of unsound mind.
Exceptions
(1) The survivor may testify against the estate of
the deceased where the latter was guilty of
fraud which fraud was established by evidence

REMEDIAL LAW REVIEWER


other than the testimony of the survivor. [Ong
Chua v. Carr (1929)]
(2) He may also testify where he was the one sued
by the decedents estate since the action then is
not against the estate. [Tongco v. Vianzon
(1927)]
(3) He may likewise testify where the estate had
filed a counterclaim against him or where the
estate cross-examined him as to matters
occurring during the lifetime of the deceased.
[Goi v. CA (1986)]
Rationale: To discourage perjury and protect the
estate from fictitious claims

4. Disqualification

by reason
privileged communications

of

Husband and wife (Marital privilege) [Sec.


24(a), Rule 130]
Requisites
(1) There must be a valid marriage
husband and wife;
(2) There is a communication
confidence by one from the other;
(3) The confidential communication
during the marriage.

between the
received in
and
was received

NOTE: A widow of a victim allegedly murdered may


testify as to her husbands dying declaration as to
how he died the since the same was not intended to
be confidential. [US v. Antipolo (1918)]
Exceptions
(1) In a civil case by one against the other;
(2) In a criminal case for a crime committed by one
against the other or the latter's direct
descendants/ascendants.
Rationale: To promote marital harmony.
In Contrast to Marital Disqualification
Marital Disqualification
One spouse should be a
party to the case;
Applies only if the
marriage is existing at
the time the testimony is
offered; and
Constitutes
a
total
prohibition
on
any
testimony for or against
the
spouse
of
the
witness.

Marital Privilege
Neither of the spouses
needs to be a party;
Does not cease even
after the marriage is
dissolved; and
Prohibition is limited to
testimony
on
confidential
communications
between spouses.

Attorney and client [Sec. 24(b), Rule 130]


Requisites
(1) There must be a communication made by the
client to the attorney or an advice given by the
attorney to his client;
(2) The communication must have been given in
confidence; and

(3) The communication or advice must have been


given either in the course of the professional
employment or with a view to professional
employment.
NOTE: Attorneys secretary, stenographer, or clerk
are also covered by the rule and cannot be examined
concerning any fact the knowledge of which has
been acquired in such capacity without the consent
of the client AND their employer.
General Rule: The attorney-client privilege may not
be invoked to refuse to divulge the identity of the
client.
Exceptions [Regala v. Sandiganbayan (1996)]:
(1) When a strong probability exists that revealing
the name would implicate that person in the
very same activity for which he sought the
lawyers advice;
(2) When disclosure would open the client to
liability;
(3) When the name would furnish the only link that
would form the chain of testimony necessary to
convict.

Physician and patient [Sec. 24(c), Rule 130]


markRequisites
(1) Physician is authorized to practice medicine,
surgery or obstetrics;
(2) Information was acquired or the advice or
treatment was given by him in his professional
capacity for the purpose of treating and curing
the patient;
(3) Information, advice or treatment, if revealed,
would blacken the reputation of the patient;
and
(4) Privilege is invoked in a civil case, whether or
not the patient is a party thereto.
Privilege does not apply when the doctor is
presented as an expert witness and only hypothetical
problems were presented to him. [Lim v. CA (1992)]

Priest and penitent [Sec. 24(d), Rule 130]


Requisites
(1) Confession was made to, or advice given by him
pursuant to a religious duty enjoined in the
course of discipline of the sect or denomination
of the priest.
(2) Confession or advice was confidential and
penitential in character.

Public officers [Sec. 24(e), Rule 130]


Requisites
(1) Communication was made to the public officer
in official confidence; and
(2) Public interest would suffer by the disclosure of
such communication.
Elements
privilege

of

presidential

communications

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REMEDIAL LAW REVIEWER

218

(1) Must relate to a quintessential and nondelegable presidential power;


(2) Must be authored or solicited and received by
a close advisor of the President or the President
himself; and
(3) Privilege may be overcome by a showing of
adequate need such that the information sought
likely contains important evidence and by the
unavailability of the information elsewhere.
[Neri v. Senate (2008)]

5. Parental and filial privilege rule


[Sec. 25, Rule 130]

General Rule: A person cannot be compelled to


testify against his parents, other direct ascendants
(parental privilege), children or other direct
descendants (filial privilege).
Exception [Art. 215, Family Code]: Descendant may
be compelled to give his testimony:
(1) In a criminal case; and
(2) When such testimony is indispensable in a crime
committed against said descendant; or
(3) In a crime committed by one parent against the
other.

D. Examination of a Witness

DIRECT EXAMINATION [Sec. 5, Rule 132]


Who conducts: Proponent
Why conducted: Examination-in-chief of a
witness by the party presenting him, on the facts
relevant to the issue.

CROSS EXAMINATION [sec. 6, Rule 132]


Who conducts: Opponent
When conducted: Upon the termination of the
direct examination
Why conducted: To test the witnesss accuracy
and truthfulness, and freedom from interest or
bias, or the reverse, and to elicit all important
facts bearing upon the issue
What matters are covered: Any matters stated in
the direct examination, or connected therewith

RE-DIRECT EXAMINATION [Sec. 7, Rule 132]


Who conducts: Proponent

Rights and obligations of a witness [Sec.


3, Rule 132]

When conducted: After cross-examination of the


witness

Obligation of a witness: To answer questions,


although his answer may tend to establish a claim
against him.

Why conducted: To explain or supplement his


answers given during the cross-examination

Rights of a witness
(1) To be protected from irrelevant, improper, or
insulting questions, and from harsh or insulting
demeanor
(2) Not to be detained longer than the interests of
justice require
(3) Not to be examined except only as to matters
pertinent to the issue
(4) Not to give an answer which will tend to subject
him to a penalty for an offense unless otherwise
provided by law, e.g., Sec. 8, RA 1379 and other
immunity statutes which grant the witness
immunity from criminal prosecution for offenses
admitted
(5) Not to give an answer which will tend to
degrade his reputation, unless it to be the very
fact at issue or to a fact from which the fact in
issue would be presumed. But a witness must
answer to the fact of his previous final
conviction for an offense.

Order in the examination of an individual


witness [Sec. 4, Rule 132]
(1) Direct examination
(2) Cross examination
(3) Re-direct examination
(4) Re-cross examination

What matters are covered: Those stated in the


cross-examination, and matters not dealt with, if
allowed by the Court

RE-CROSS EXAMINATION [Sec. 8, Rule 132]


Who conducts: Opponent
When conducted: Upon the conclusion of the redirect examination
What matters are covered: Those stated in his
re-direct examination, and also on such other
matters as may be allowed by the court in its
discretion.

REMEDIAL LAW REVIEWER


RECALLING THE WITNESS [Sec. 9, Rule 132]
Who conducts: either party
When conducted: After both sides have
concluded the examination of a witness, and
with leave of court
Why conducted:
(1) Particularly identified material points were
not covered in cross-examination
(2) Particularly described vital documents were
not presented to the witness
(3) Cross-examination was conducted in so inept
a manner as to result in a virtual absence
thereof [People vs. Rivera (1991)]

Leading and misleading questions [Sec.


10, Rule 132]
Questions not allowed
(1) Misleading Questions [sec. 10, Rule 132]
Questions that assume as true a fact not yet
testified to by the witness, or contrary to that
which he has previously stated.
NEVER allowed
(2) Leading Questions
Questions that suggest to the witness the
answer, which the examining party desires.

How the witness is impeached by


evidence of inconsistent statements
(laying the predicate)
Elements:
(1) The alleged statements must be related to the
witness including the circumstances of the times
and places and the persons present. If the
statements are in writing they must be shown to
him.
(2) Witness may be asked whether he made such
statements and also to explain them if he
admits making those statements.
Purpose: To allow the witness to admit or deny the
prior statement and afford him an opportunity to
explain the same.

Evidence of the good character of a


witness [Sec. 14, Rule 132]
Evidence of the witness good character is not
admissible until such character has been impeached.

II. With respect to the testimony

E. Admissions and Confessions


1. Admissions of a Party

General Rule: Leading questions are not allowed.

By Act, Declaration or Omission

Exceptions:
(1) On cross examination;
(2) On preliminary matters;
(3) When there is a difficulty is getting direct and
intelligible answers from a witness who is
ignorant, or a child of tender years, or is of
feeble mind, or a deaf-mute;
(4) On an unwilling or hostile witness;

Requisites for Admissibility


(1) Made by a party;
(2) Outside of court;
(3) Relates to a relevant fact; and
(4) Is against admitters interest. [sec. 26, Rule
130]

A witness may be considered hostile only when


declared by the court, upon adequate showing
of his: [sec. 12, Rule 132]
(a) Adverse interest;
(b) Unjustified reluctance to testify;
(c) His having misled the party into calling him
to the witness stand.
(5) On a witness who is an adverse party or an
officer/director or managing agent of a
public/private
corporation
or
of
a
partnership/association which is an adverse
party.

Methods of impeachment of adverse


partys witness [sec. 11, Rule 132]
(1) By contradictory evidence;
(2) By evidence that his general reputation for
truth, honesty or integrity is bad;
(3) By evidence that he has made at other times
statements inconsistent with his present
testimony.

Effect
(1) May be given in evidence against the admitter
[sec. 26, Rule 130]
(2) Flight from justice is an admission by conduct
and circumstantial evidence of consciousness of
guilt. [US v. Sarikala (1918)]
Rationale
No man would make any declaration against himself
unless it is true. [Republic v. Bautista (2007)]
As Distinguished from Judicial Admissions
Judicial
Made in connection with
a judicial proceeding in
which it is offered
Rule 129, sec. 4

Extrajudicial
Any other admission
Rule 130, secs. 26 and 32

By Silence
Requisites for Admissibility:
(1) An act or declaration is made in the presence
and within the hearing or observation of a party;

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220

(2) Party does or says nothing;


(3) Act or declaration is such as naturally to call for
action or comment if not true; and
(4) It was proper and possible for the party to do
so. [sec. 32, Rule 130]
Silence of a person under investigation for the
commission of an offense should not be construed as
an admission by silence for constitutional reasons.
[Sec. 2(b), R.A. 7438]

2. Confessions
A declaration of an accused acknowledging his guilt
of the offense charged, or of any offense necessarily
included therein [sec. 33, Rule 130]
If the accused admits having committed the act in
question but alleges a justification therefore, the
same is merely an admission. [US v. Tolosa]
Any confession, including a re-enactment, without
admonition of the right to silence and to counsel,
and without counsel chosen by the accused is
inadmissible in evidence. [People v. Yip Wai Ming
(1996)]
General Rule: An extra-judicial confession made by
an accused is not a sufficient ground for conviction.
[sec. 3, Rule 133]
Exception: When corroborated by evidence of the
actual commission of a particular crime (corpus
delicti). [sec. 3, Rule 133]
As Distinguished from Admissions of a Party
Admission
Merely a statement of
fact
Maybe express or tacit
Maybe made by 3rd
parties, and in certain
cases, admissible against
a party

Confession
Acknowledgment of guilt
or liability
Must be express
Can be made only by the
party himself, and
admissible against his
co-accused in some
instances

3. Res inter alios acta rule


With Respect to Admissions by a ThirdParty
General Rule: INADMISSIBLE
The rights of a party cannot be prejudiced by an act,
declaration or omission of another. (1st Branch) [sec.
28, Rule 130]
Exceptions:
(1) Partners or Agents Admission [sec. 29, Rule
130]
Requisites:
(a) Act or declaration must be within the scope
of the authority of the partner or agent;

(b) Act or declaration must have been made


during the existence of the partnership or
agency; and
(c) Partnership or agency must be shown by
evidence other than the act or declaration.
(2) Co-Conspirators Admission [sec. 30, Rule 130]
Requisites
(a) Act or declaration must relate to the
conspiracy;
(b) It must have been made during the
existence of the conspiracy; and
(c) Conspiracy must be shown by evidence
other than such act/declaration.
Existence of the conspiracy may be inferred
from the acts of the accused. [People v. Belen
(1963)]
Rule 130, sec. 30 applies only to extra-judicial
statements, not to testimony given on the
stand. [People v. Serrano (1959)]
(3) Admission by Privies [sec. 31, Rule 130]
Requisites:
(a) There must be an act, declaration or an
omission by a predecessor-in-interest;
(b) Act, declaration or omission must have
occurred while he was holding (not after)
the title to the property; and
(c) Act, declaration or omission must be in
relation to the property.

With Respect to Similar Acts


General Rule: Evidence that one did or did not do a
certain thing at one time is NOT ADMISSIBLE to prove
that he did or did not do the same or similar thing at
another time. (2nd Branch) [sec. 34, Rule 130]
Exceptions: Said evidence may be received to
prove:
(1) specific intent or knowledge;
(2) identity;
(3) plan, system, or scheme;
(4) habit;
(5) custom, usage and the like.

Admission by a party
Please see discussion in previous section (previous
page)

Admission by a third party


Admission by a co-partner or agent
Admission by a conspirator
Admission by privies
Please see discussion under the subsection Res inter
alios acta rule

REMEDIAL LAW REVIEWER


Admission by silence
Please see discussion in previous section (previous
page)

Confessions
Please see discussion in previous section (previous
page)

Similar acts as evidence


Please see discussion under the subsection Res inter
alios acta rule

F. Hearsay Rule
Meaning of hearsay
(1) Out-of-court statement
(2) Offered by the witness in court to prove the
truth of the matters asserted by the statement
Any evidence, whether oral or documentary, if its
probative value is not based on personal knowledge
of witness but on knowledge of some other person
not on witness stand [Regalado 11th ed.]
Doctrine of Independently Relevant Statements
Statements or writings attributed to a person not on
the witness stand, which are being offered not to
prove the truth of the facts stated therein, but only
to prove that such were actually made.
These are NOT covered by the hearsay rule [People
v. Cusi (1965)]

Reason for exclusion of hearsay evidence


Lack of opportunity to cross-examine the outside
declarant
GENERAL RULE ON HEARSAY
A witness can testify only as to those facts which he
knows of his personal knowledge, or those derived
from his own perception. [Rule 130, sec. 36]
The hearsay rule is not limited to oral testimony or
statements; it applies to written, as well as oral
statements. [Consunji vs. CA (2001)]
If a party does not object to hearsay evidence, the
same is admissible, as a party can waive his right to
cross-examine [People vs Ola (1987)]
Repeated failure to cross-examine is an implied
waiver [Savory Luncheonette vs Lakas ng
Manggagawang Pilipino (1975)]

Exceptions to the hearsay rule (Asked


7x)
1) Dying declaration
Also known as antemortem statement or
statement in articulo mortis [Sec. 37, Rule 130]

Requisites for Admissibility


(1) Declaration is one made by a dying person;
(2) Declaration was made under the consciousness
of an impending death;
(3) Declaration refers to cause and surrounding
circumstances of such death;
(4) Declaration is offered in any case wherein his
death is the subject of inquiry;
(5) Declarant is competent as a witness had he
survived [Geraldo v People (2008)]; and
(6) Declarant should have died. [People v.
Macandog (2001)]
Rationale for Admissibility: As a general rule, when
a person is at the point of death, every motive to
falsehood is silenced. [People v Bacunawa (2001)]
The foreboding may be gleaned from surrounding
circumstances, such as the nature of the declarants
injury and conduct that would justify a conclusion
that there was consciousness of impending death.
[People v. Latayada (2004)]

2) Declaration against interest


Requisites for Admissibility
(1) Declarant is dead or unable to testify;
(2) Declaration relates to a fact against the interest
of the declarant;
(3) At the time he made said declaration, declarant
was aware that the same was contrary to his
interest; and
(4) Declarant had no motive to falsify and believed
such declaration to be true [sec. 38, Rule 130;
Ong v. Court of Appeals (1980)]
Inability to testify means that the person is dead,
mentally incapacitated or physically incompetent.
Mere absence from the jurisdiction does not make
him ipso facto unavailable. [Fuentes v. CA (1996)]
As Distinguished from Admissions
Admission
Admitter is a party
himself, or in privity
with such party;
Admissible whether or
not admitter is available
as a witness
Can be made any time,
even during trial;
Admissible only against
the admitter; and
Admissible NOT as an
exception to any rule

Declaration against
Interest
Declarant is neither a
party nor in privity with
a party;
Admissible only when
declarant is unavailable
as a witness;
Must have been made
ante litem motam;
Admissible even against
3rd persons; and
Admissible
as
an
exception to the hearsay
rule

3) Act or declaration about pedigree


Requisites for Admissibility
(1) Declarant is dead or unable to testify;
(2) Declarant must be related by birth or marriage
to the person whose pedigree is in issue;

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222

(3) Declaration was made before the controversy;


and
(4) Relationship between the declarant and the
person whose pedigree is in question must be
shown by evidence other than such declaration.
[sec. 39, Rule 130]
Meaning of Pedigree
(1) Relationship;
(2) Family genealogy;
(3) Birth;
(4) Marriage;
(5) Death;
(6) Dates when these facts occurred;
(7) Places where these facts occurred;
(8) Names of relatives; and
(9) Facts of family history intimately connected
with pedigree. [sec. 39, Rule 130]

4) Family reputation or tradition regarding


pedigree
Requisites for Admissibility:
(1) Witness must be a member, by consanguinity or
affinity, of the same family as the subject; and
(2) Such reputation or tradition must have existed
in that family ante litem motam. [sec. 40, Rule
130]

Admissible Statements
(1) 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
(a) Principal act be a startling occurrence
(b) Statement made before declarant had
opportunity to contrive
(c) Statement refer to occurrence in question
and attending circumstances
(2) Verbal acts - Statements, which accompany an
equivocal act material to the issue and give it a
legal significance
(a) Principal act must be equivocal
(b) Act must be material to the issue
(c) Statement must accompany the equivocal
act
(d) Statement gives legal significance to
equivocal act
(e) Must be made at the time, not after, the
equivocal act was being performed
A dying declaration can be made only by the victim
after the attack while a statement as part of the res
gestae may be that of the killer himself after or
during the killing. [People v. Reyes]

Other Admissible Evidence


(1) Entries in family bibles or other family books;
(2) Charts;
(3) Engravings on rings;
(4) Family portraits and the like [sec. 40, Rule 130]

A statement not admissible as dying declaration


because it was not made under consciousness of
impending death, may still be admissible as part of
res gestae if made immediately afer the incident.
[People vs. Reyes]

This enumeration, by ejusdem generis, is limited to


"family possessions," or those articles which
represent, in effect, a family's joint statement of its
belief as to the pedigree of a person. [Jison v. CA
(1998)]

7) Entries in the course of business

A persons statement as to his date of birth and age,


as he learned of these from his parents or relatives,
is an ante litem motam declaration of a family
tradition. [Gravador v. Mamigo (1967)]

5) Common reputation
Requisites for Admissibility
(1) Reputation pertains to:
(a) facts of public or general interest more
than 30 years old,
(b) marriage, or
(c) moral character
(2) Common reputation existed ante litem motam.
[sec. 41, Rule 130]
Other Admissible Evidence
(a) Monuments
(b) Inscriptions in public places [sec. 41, Rule 130]
Pedigree may be established by reputation in the
family, but NOT in the community. [Rule 130, secs.
40-41]

6) Part of the res gestae [Sec. 42, Rule 130]

Requisites for Admissibility [sec. 43, Rule 130]


(1) Entries were made at, or near the time of the
transactions referred to;
(2) Such entries were made in the ordinary or
regular course of business or duty;
(3) Entrant was in a position to know the facts
stated in the entries;
(4) Entrant did so in his professional capacity, or in
the performance of duty and in the regular
course of business; and
(5) Entrant is now dead or unable to testify.
If the entrant is available as a witness, the entries
will not be admitted, but they may nevertheless be
availed of by said entrant as a memorandum to
refresh his memory while testifying on the
transactions reflected therein. [Cang Yui v. Gardner
(1916)]
Business records are exempt from the hearsay
rule. [Rule 8, sec. 1, Rules on Electronic Evidence]

8) Entries in official records


Requisites for Admissibility
(1) Entries were made by a public officer in the
performance of his duties or by a person in the
performance of a duty specially enjoined by law
[sec. 44, Rule 130];

REMEDIAL LAW REVIEWER


(2) Entrant must have personal knowledge of the
facts stated by him or such facts acquired by
him from reports made by persons under a legal
duty to submit the same [Salmon, Dexter & Co.
v. Wijangco (1924)]; and
(3) Entries were duly entered in a regular manner in
the official records.
Entries in official records, just like entries in the
course of business, are merely prima facie evidence
of the facts therein stated. [secs. 43-44, Rule 130]
Entries in a police blotter are not conclusive proof of
the truth of such entries. [People v. Cabuang (1993)]
Baptismal certificates or parochial records of
baptism are not official records. [Fortus v. Novero
(1968)]

9) Commercial lists and the like


Requisites for Admissibility [Sec. 45, Rule 130]
(1) Such statements are contained in a list;
(2) Compilation is published for use by persons
engaged in that occupation; and
(3) It is generally used and relied upon by them.

10) Learned treaties


Requisites for Admissibility [Sec. 46, Rule 130]
(1) Published treatise, periodical or pamphlet is on
a subject of history, law, science, or art; and
(2) Court takes judicial notice of it, or
(3) Witness expert in the subject testifies that the
writer of the statement in the treatise,
periodical or pamphlet is recognized in his
profession or calling as expert in the subject

11) Testimony or deposition at a former trial


Requisites for Admissibility [sec. 47, Rule 130;
Manliclic v. Calaunan (2007)]
(1) Witness is dead or unable to testify;
(2) His testimony or deposition was given in a
former case or proceeding, judicial or
administrative, between the same parties or
those representing the same interests;
(3) Former case involved the same subject as that
in the present case although on different causes
of action;
(4) Issue testified to by the witness in the former
trial is the same issue involved in the present
case; and
(5) Adverse party had the opportunity to crossexamine the witness in the former case.

G. Opinion Rule
GENERAL RULE: The opinion of a witness is not
admissible. [Sec. 48, Rule 130]
EXCEPTIONS [NOTE: Please refer to succeeding
subsections for discussion]
(1) Expert witness
(2) Ordinary witness

Opinion of expert witness [sec. 49, Rule


130]
On a matter
(1) Requiring
(a) special knowledge,
(b) skill,
(c) experience, or
(d) training
(2) Which he is shown to possess
Expert witness is one who belongs to the profession
or calling which the subject matter of the inquiry
relates and who possesses special knowledge.

Opinion of ordinary witness [sec. 50, Rule


130]
(1) If proper basis is given, and
(2) Regarding:
(a) Identity of a person about whom he has
adequate knowledge;
(b) Handwriting with which he has sufficient
familiarity;
(c) Mental sanity of a person with whom he is
sufficiently acquainted; and
(d) Impressions of the
(i) emotion,
(ii) behavior,
(iii) condition, or
(iv) appearance of a person.

H. Character Evidence
GENERAL RULE [sec. 51, Rule 130]: Character
evidence is not admissible.
EXCEPTIONS
(1) Criminal cases [sec. 51(a), Rule 130]
(a) Accused May prove his good moral
character, which is pertinent to the moral
trait involved in the offense charged.
(b) Prosecution May not prove the bad moral
character of the accused, except in
rebuttal.
(c) Offended Party His/her good or bad moral
character may be proved if it tends to
establish in any reasonable degree the
im/probability of the offense charged.
(2) Civil cases
(a) Moral character is admissible only when
pertinent to the issue of character involved
in the case. [sec. 51(b), Rule 130]
(b) Evidence of the witness good character is
not admissible until such character has
been impeached. [sec. 14, Rule 130]

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REMEDIAL LAW REVIEWER

224

I. Rule on Examination of a Child


Witness (A.M. No. 004-07-SC)
Applicability of the rule
(1) Shall apply in all criminal proceedings and noncriminal proceedings involving child witnesses.
[Sec. 1]
(2) The ROC provisions on deposition, conditional
examination of witnesses and evidence shall be
applied suppletorily. [Sec. 32]

Meaning of child witness


(1) Any person who at the time of giving testimony
is < 18 years;
(2) In child abuse cases, a child includes one over
18 years but is found by the court as
(a) unable to fully take care of himself, or
(b) protect himself from abuse, neglect,
cruelty, exploitation, or discrimination
(c) because of a physical or mental disability or
condition.;

Competency of a child witness


Every child is presumed qualified to be a witness. To
rebut the presumption of competence enjoyed by a
child, the burden of proof lies on the party
challenging his competence. [Sec. 6(b)]
Requisites of competency of a child as witness
[People v. Mendoza (1996)]:
(1) Capacity of observation;
(2) Capacity of recollection;
(3) Capacity of communication.
When the court finds that substantial doubt exists
regarding
the
ability
of
the
child
to
perceive/remember/ communicate, distinguish truth
from falsehood, or appreciate the duty to tell the
truth in court, a competency exam shall be
conducted.
The age of the child by itself is not a sufficient basis
for a competency examination. [Sec. 6(a)]
The court has the duty of continuously assessing the
competence of the child throughout his testimony.
[Sec. 6(f)]

Examination of a child witness


(1) In open court [Sec. 11]
(2) Alternative Modes
(a) Live-Link TV Testimony, in Criminal Cases
where Child is a Victim or a Witness [Sec.
25]
(i) 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.
(ii) Trauma must be of a kind which would
impair the completeness or truthfulness
of the childs testimony.

(b) Videotaped Deposition of a Child Witness


[Sec. 27]
(i) 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.
(ii) The rights of the accused during trial,
especially the right to counsel and to
confront and cross-examine the child,
shall not be violated during the
deposition.

Live-link TV testimony of a child witness


[Sec. 25]
Live-link television testimony, in criminal cases
where the child is a victim or a witness
The court may order that 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.
The trauma must be of a kind which would impair
the completeness/truthfulness of the childs
testimony.
If it is necessary for the child to identify the accused
at trial, the court may allow the child to enter the
courtroom for the limited purpose of identifying the
accused, or the court may allow the child to identify
the accused by observing the image of the latter on
a television monitor.

Videotaped deposition of a child witness


[Sec. 27]
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 rights of the accused during trial, especially the
right to counsel and to confront and cross-examine
the child, shall not be violated during the
deposition.

Hearsay exception in child abuse cases


[Sec. 28]
Proponent of hearsay statement shall make known to
the adverse party the intention to offer such
statement and its particulars.
If the child is available, court shall require the child
to be present at the presentation of the hearsay
statement for cross-examination by the adverse
party.
If unavailable, the fact of unavailability must be
proved by the proponent and his hearsay testimony
must be corroborated by other admissible evidence.

Sexual abuse shield rule


General Rule [Sec. 30(a)]: The following are
INADMISSIBLE in any criminal proceeding involving

REMEDIAL LAW REVIEWER


alleged child sexual abuse:
(1) Evidence offered to prove that the alleged
victim engaged in other sexual behavior;
(2) Evidence offered to prove the sexual
predisposition of the alleged victim.
Exception [Sec. 30(b)]: Evidence of specific
instances of sexual behavior by the alleged victim to
prove that a person other than the accused was the
source of semen, injury or other physical evidence

Protective orders
Video/audio tapes that are part of the court record
may be viewed only by parties, their counsel, their
expert witness and the guardian ad litem. [Sec.
31(b)]
The court may issue additional orders to protect the
childs privacy. [Sec. 31(c)]
Publication (or causing it) in any format any
identifying information of a child who is or is alleged
to be a victim/accused of a crime or a witness
thereof, or an immediate family of the child, shall
be liable for contempt of court. [Sec. 31(d)]
A child has a right at any court proceeding not to
testify regarding personal identifying information
that could endanger his physical safety or his family.
[Sec. 31(e)]

VI. OFFER AND OBJECTION


A.
B.
C.
D.
E.
F.
G.

Offer of Evidence
When to Make an Offer
Objection
Repetition of an Objection
Ruling
Striking Out of an Answer
Tender of Excluded Evidence

A. Offer of Evidence
Concept [Sec. 34, Rule 132]
(1) Court shall consider no evidence which has not
been formally offered
(2) Purpose for which the evidence is offered must
be specified
(3) As
Distinguished
from
Identification
of
Documentary Evidence [Interpacific Transit v.
Aviles (1990)]
Identification
of Documentary
Evidence
Done in the course of the
trial and accompanied by
the marking of the
evidence

Formal Offer
of Exhibit
Done only when the
party rests his/her case

B. When to Make an Offer


[Sec. 35, Rule 132]

Kind of evidence
Testimonial

When to offer
At the time the witness is
called to testify
Documentary and After the presentation of a
Object
partys testimonial evidence
Offer shall be done orally unless allowed by the
court to be done in writing.
Absence of an offer is a defect which is waived when
a party fails to object when the ground became
reasonably apparent, as when the witness is called
to testify without any prior offer. [Catuira v. CA
(1994)]
The defect caused by the absence of formal offer of
exhibits can be cured by the identification of the
exhibits by testimony duly recorded and the
incorporation of the said exhibits in the records of
the case. [People v. Mate (1981)]

C. Objection
Concept
What to object to
Testimonial evidence

When to object
Immediately after offer
is made
Question propounded in As soon as the grounds
the course of oral become
reasonably
examination
apparent
Offer done in writing
Within 3 days after
notice of the offer,
unless a different period
is allowed by the court
The grounds for objection
must be specified in any case.

D. Repetition of an Objection
[Sec. 37, Rule 132]
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 be
sufficient for the adverse party to record his
continuing objection to such class of questions.
A court may, motu proprio, treat the objection as a
continuing one. [Keller v. Ellerman & Bucknall
Steamship]

E. Ruling
Ruling on the objection [Sec. 38, Rule 132]
Should be given immediately after the objection
is made, unless the court desires to take a
reasonable time to inform itself on the question
presented.
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/s relied upon.
Reservation of a ruling by the court on an
objection to the admissibility of evidence,

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REMEDIAL LAW REVIEWER

226

without subsequently excluding the same,


amounts to a denial of an objection. [People v.
Tavera]

F. Striking Out of an Answer


Motion to strike [sec. 39, Rule 132]
(1) Court may sustain an objection and order the
answer given to be stricken off the record if:
(a) witness answers the question before the
adverse party had the opportunity to
object, and
(b) such objection is found to be meritorious.
(2) The court may also, upon motion, order the
striking out of answers, which are
(a) incompetent,
(b) irrelevant or
(c) otherwise improper.

G. Tender of Excluded Evidence


[Rule 132, Sec. 40]
Documents marked as exhibits during the hearing but
which were not formally offered in evidence cannot
be considered as evidence nor shall they have
evidentiary value. [Vda. De Flores v. WCC (1977)]
How to Tender Evidence
Kind of evidence
Documentary
Testimonial

How to tender the evidence


Offeror may have the same
attached or made part of the
record
Offeror may state for the
record the name and other
personal circumstances of the
witness and the substance of
the proposed testimony