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[HEARTBREAK NOTES] [Evid] [v.1.

1, 2016]
Notes in red are opinions of the lecturers,1 of authors2 on the subject, or of the reviewee.
Cited provisions are from the Rules of Court unless otherwise provided.)

EVIDENCE
RULE 128
GENERAL PROVISIONS
Evidence: the means, sanctioned by these rules, of ascertaining in a judicial proceeding the
truth respecting a matter of fact (R128, S1)
Evidence the means of proving
Proof the effect of evidence
Quantum of evidence
(1) Proof beyond reasonable doubt: required in criminal cases; does not mean such degree
of proof as excluding possibility of error, and/or producing absolute certainty. Moral
certainty is only required, or that degree of proof which produces conviction in an
unprejudiced mind.
(2) Preponderance of evidence: required in civil cases; evidence which is of greater weight,
or more convincing, than that which is offered in opposition thereto. (R133, S2)
(3) Substantial evidence: sufficient in administrative proceedings; that amount of relevant
evidence which a reasonable mind might accept as adequate to justify a conclusion.
Admissibility of evidence
(1) Requisites of admissibility: The evidence must be
a. Relevant: has a logical connection with the fact in issue
b. Competent: not excluded by the Rules on Evidence, the law, and the Constitution
(2) Axioms of admissibility:
a. Axiom of relevancy: none but facts having rational probative value are
admissible.
b. Axiom of competency: all facts having rational probative value are admissible,
unless some specific rule forbids.
Collateral matters
(1) Classification of collateral matters
a. Prospectant: those preceding of the fact in issue but pointing forward to it (e.g.
moral character, motive, conspiracy)
b. Concomitant: those accompanying the fact in issue and pointing to it (e.g. alibi,
opportunity and incompatibility)
c. Retrospectant: those succeeding the fact in issue but pointing backward to it (e.g.
flight and concealment, behavior of the accused upon being arrested, fingerprints
or footprints, articles left at the scene of the crime which may identify the culprit)
1 Dean Jose Grapilon, Atty. Christian Villasis
2 Justice Alfredo Benipayo, Dean Ed Vincent Albano

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GR:
XPN:

Collateral matters are not allowed.


Admissible when they tend in any reasonable degree to establish the probability
or improbability of the fact in issue.
Knowledge, motive, or intent may often be ascertained from evidence of
transactions, apparently collateral, and such evidence, if shown to be
relevant, is admissible for such and similar purpose. Such evidence is
admissible in both civil and criminal cases.
The rule is that when a persons conduct is in issue, the fact that the
person engaged in conduct of the same sort on a different occasion may
be shown as tending to shed some light on some quality of the conduct in
question such as intent, knowledge, good or bad faith, malice or other
state of mind or bodily feeling.

RULE 129
WHAT NEED NOT BE PROVED
The following facts need not be proved:
(1) Those which the court may take judicial notice of (R129)
(2) Those which are judicially admitted (ibid.)
(3) Those which are conclusively presumed (R131)
(4) Those which are disputably presumed but uncontradicted (ibid.)
SUBJECT TO MANDATORY JUDICIAL
NOTICE
1. Territorial extent of states
2. Political history of states
3. Forms of government of states
4. Symbols of nationality
5. Law of nations
6. Admiralty courts and their seals
7. Political constitution and history of the
Philippines
8. Matters relating to:
a. Our legislative department
b. Our executive department
c. The courts of justice
9. Laws of nature
10. Measure of time
11. Geographical divisions

SUBJECT TO DISCRETIONARY JUDICIAL


NOTICE
1. Matters of public knowledge
2. Matters capable of unquestionable
demonstration
3. Matters ought to be known to judges
because of their judicial functions

RULE 130
RULES OF ADMISSIBILITY
Object (real) evidence: objects as evidence are those addressed to the senses of the court.
When an object is relevant to the fact in issue, it may be exhibited to, examined, or viewed by
the court.
Classification of object evidence:
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(1) That which consists in the exhibition or production of the object inside or outside the
courtroom
(2) That which consists in the inspection of the object outside the courtroom (ocular
inspection)
(3) That which consists in the making of an experiment
Requisites for admissibility:
(1) The object must be relevant to the fact in issue
(2) The object must be authenticated before it is admitted
Documentary evidence: documents as evidence consist of writing or any material containing
letters, words, numbers, figures, symbols, or other modes of written expression offered as proof
of their contents.
Best evidence rule
GR:

When the subject of inquiry is the contents of a document, no evidence shall be


admissible other than the original document itself.
Q:
A:

XPN
:

What are considered original documents?


(1) The original of a document is one the contents of which are the subject
of inquiry.
(2) 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.
(3) When an entry is repeated in the regular course of business, one being
copied from another at or near the time of the transaction, all the entries
are likewise equally regarded as originals.
(4) An electronic document, if it is a printout or output readable by sight or
other means shown to reflect the data. (Rules on Electronic Evidence,
A.M. No. 01-7-01-SC)
When the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror
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
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
When the original is a public record in the custody of a public officer or is
recorded in a public office

Secondary evidence: admissible when the original documents were actually lost or
destroyed; but prior to the introduction of such secondary document, the proponent
must establish the former existence of the document.

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Requisites to admit secondary evidence:
(1) The execution or existence of the original
(2) The loss and destruction of the original or its non-production in court
(3) The unavailability of the original is not due to bad faith on the part of the
offeror
Parol evidence rule
GR:

The written agreement 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.
This rule forbids any addition or contradiction of the terms of a written
instrument by testimony purporting to show that, at or before the signing of the
document, other or different terms were orally agreed upon by the parties.
Requisites for applicability:
a. When there is a valid contract
b. When the terms of agreement are reduced to writing
c. The agreement is between the parties and their successors-in-interest
d. There is a dispute as to the terms of the agreement
XPN: A party may present evidence to modify, explain, or add to the terms of written
agreement if he puts in issue in his pleading:
An intrinsic ambiguity, mistake, or imperfection in the written agreement
(Note: it must be intrinsic ambiguity, i.e. when the writing admits two or
more meanings or when it is understood in more than one way. Extrinsic
ambiguity, on the other hand, is one where the document on its face is so
unintelligible and the words used so defective that it totally fails to express
a meaning, in such case parol existence is forbidden.)
The failure of the written agreement to express the true intent and agreement
of the parties thereto
The validity of the written agreement (e.g. where the consent of one of the
parties was procured by mistake, fraud, intimidation, violence, or undue
influence)
The existence of other terms agreed to by the parties or their successors-ininterest after the execution of the written agreement
(Note: the term agreement includes wills.)
Qualification of witnesses
GR:

All persons who can perceive, and perceiving, can make known their perception to
others may be witnesses. Religious or political belief, interest in the outcome of the
case, or conviction of a crime shall be a ground for disqualification unless
otherwise provided by law.
XPN: When a person is disqualified by reason of:
His mental condition or mental maturity
Public policy
Confidential communication

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His being disqualified by law or the Rules

When deaf-mutes are competent witnesses


(1) Where they can understand and appreciate the sanctity of an oath
(2) Can comprehend facts they are going to testify on
(3) Can communicate their ideas through a qualified interpreter
GR:

While an accused may voluntarily take the witness stand to testify on his behalf in a
criminal case filed against him and be cross-examined thereby, he cannot be compelled
to be a witness for the prosecution.
Basis: the Constitution provides that no person shall be compelled to be a witness
against himself. The constitutional proscription is based on two grounds
Public policy: it would place the witness against the strongest temptation to
commit perjury.
Humanity: it would be to extort a confession of truth by force and degree of which
the law abhors.
XPN: He can be compelled to do certain mechanical or physical acts as the right extends only
against the use of physical or moral compulsion to extort communications from the
accused.
The rule on examination of a child witness; presumption of competency
Under the new Child Witness Rule, every child is presumed qualified to be a witness. Only when
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 will the court,
motu proprio or on motion of a party, conduct a competency examination of a child. The court
may appoint a guardian ad litem to promote the childs best interest.
Disqualification by reason of marriage (S22)
GR:

Neither husband nor wife may testify for or against the other without the consent of
the other spouse during the marriage.
Requisites:
Spouses are legally married
Either spouse must be a party to the case
XPN: In a civil case by one against the other
In a criminal case for a crime committed by one against the other.
(Note: the right to invoke the disqualification belongs to the spouse-party; therefore,
he/she alone can claim or waive it.)
Survivor disqualification rule (Dead Mans Statute; S23): if one party to the alleged
transaction is precluded from testifying by death, insanity, or other mental disabilities, the
surviving party is not entitled to the undue advantage of giving his own uncontradicted and
unexplained account of the transaction.
Purpose: to guard against the temptation to give false testimony on the part of the surviving
party, and put the parties to the suit upon the terms of equality in regard to the opportunity to
produce evidence.

[HEARTBREAK NOTES] [Evid] [v.1.1, 2016]

Disqualification by reason of privileged communication


(1) Marital privilege rule:
a. Requisites:
That the spouses must have been legally married
That the privilege is claimed with regard to communication, oral or written,
made during the marriage
That said communication was made confidentially
That the action or proceeding where the privilege is claimed is not by one
spouse against the other
b. Exceptions:
In a civil case instituted by one against the other
In a criminal case for a crime committed by one against the other
c. Duration: the privilege endures even after the termination of the marital relation
be, it by the death of either spouse or by absolute divorce.
d. Rule when heard by third persons:
Communications overheard by third persons without knowledge of the
spouses is still confidential, but the third party is not disqualified
Communications made in the presence of third persons with their
[spouses] knowledge is not confidential, but where it is uttered in the
presence of mere children who are not interested, the communication is
confidential.
(2) Attorney-client privilege rule:
a. Requisites:
There must be a relation of attorney and client
Communication by client to attorney, or advice given thereon by the latter
to the former
Communication or advice must have been made to the attorney in the
course of or with a view to professional employment
b. Professional communications are not privileged when such communications are
for an unlawful purpose, having for their purpose the commission of a crime.
c. The privilege belongs to the client and only he can invoke it. It extends to the
attorneys secretary, stenographer, or clerk concerning any fact acquired in such
capacity, or any other agent of transmitting the communication, originating from
the clients agent and made to the attorney or from the attorneys agent to the
attorney.
(3) Physician-patient privilege rule:
a. Requisites:
The action in which the advice or treatment given or any information to be
used is a civil case
The relation of physician and patient existed between the person claiming
the privilege or his legal representative and the physician
The advice or treatment given by him or any information was acquired by
the physician while professionally attending the patient
The information was necessary for the performance of his professional
duty
The disclosure of the information would tend to blacken the reputation of
the patient
b. Persons disqualified in the rule:
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Any person authorized to practice medicine, surgery, or obstetrics
Dentists
Pharmacists
Nurses
c. Waiver of privilege (R28): a party, in an action where the court ordered for the
examination of his mental or physical condition, by requesting and obtaining a
report of the said examination or by taking the deposition of the examiner, waives
any privilege he may have in that action or any other involving the same
controversy, regarding the testimony of every other person who has examined or
may thereafter examine him in respect of the same mental or physical
examination.
(4) Priest-penitent privilege rule:
a. Requisites:
The minister or priest must be so according to the sect or denomination to
which he belongs
The communication is made to him in his professional capacity or
character
It is made in the course of discipline enjoined by the rules or practices of
his sect or denomination (i.e. the confession herein must be made to
acquire divine absolution or sacramental in character)
b. Matters not allowed to testify on:
The confession given to him
Advice he gave to the person who confessed, provided that the
confession was made to the priest or minister in his professional capacity
and that the confession was given in accordance with the rights of the
church or organization to which the priest or minister belongs
(5) Privileged communication to public officer:
a. Requisites:
The communication must have been made to a public officer
The communication was made in official confidence
Public interest would suffer by the disclosure of the communication
b. Exceptions:
When useful to vindicate the innocence of an accused person
To lessen the risk of false testimony
When essential to the proper disposition of the case
When the benefit to be gained is greater than the injury which could inure
Compromise: an agreement made between two or more parties as a settlement of matters in
dispute.
(1) S27; offer of compromise, not admissible; reason: lack of relevancy of the offer, that is, it
may be construed as a desire for peace rather than an admission of the weakness of
position or increase of relevancy; and policy considerations to promote the settling of
disputes, which would be discouraged.
(2) Privies: denotes the idea of succession not only by right of heirship and testamentary
legacy, but also that of succession by singular title, derived from acts inter vivos, as by
assignment, subrogation or purchase in fact any act whereby the successor is
substituted in the place of the predecessor-in-interest. (Alpuerto vs. Perez)
(3) Cases where compromise is not valid:
a. Civil status of persons
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b. Validity of a marriage or a legal separation
c. Any ground for legal separation
d. Future support
e. Jurisdiction of the courts
f. Future legitime
g. Habeas corpus
h. Election
(4) Compromise in criminal cases:
a. In criminal cases, except those involving quasi-offenses (criminal negligence) or
those allowed by law to be compromised, an offer of compromise by the accused
may be received in evidence as an implied admission of guilt.
b. Criminal cases where compromise is allowed:
Violation of the NIRC
Quasi-offenses (A365, RPC)
Res inter alios acta [alteri nocere non debet]: trans. things done between strangers ought
not to injure those who are not parties to it; the rights of a party cannot be prejudiced by an act,
declaration, or omission of another.
It is well settled that a party is not bound by any agreement of which he has no knowledge and
to which he has not given his consent and that his rights cannot be prejudiced by the
declaration, act, or omission or another, except by virtue of a particular relation between them.
Exceptions to the res inter alios acta rule: Admissions made
(1) By a co-partner or agent (S29)
(2) By a conspirator (S30)
Requisites:
i. The conspiracy must first be proved by evidence other than the
admission itself
ii. The admission relates to the common object
iii. It has been made while the declarant was engaged in carrying out
the conspiracy
Note: this rule applies only to extrajudicial acts or declarations of a
conspirator, but not to testimony to the facts given on the stand at the trial
where the defendant has the opportunity to cross-examine the declarant.
(People vs. Vizcarra)
(3) By privies (S31)
(4) By silence (S32)
(Note: S29-S31 are collectively classified as vicarious admissions.)
Confession
(1) Requisites:
a. Must be express and categorical
b. Given voluntarily and intelligently, where the accused realizes the legal
significance of his act
c. With assistance of competent and independent counsel
d. In writing and in the language known to and understood by the confessant
e. Signed, or, if the confessant does not know how to read and write, thumb marked
by him

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(2) A confession obtained from a person who has not been informed of his right to silence
and counsel is inadmissible.
Previous conduct as evidence (S34)
GR:

XPN:

Evidence that one did or did not do a certain thing at one time is not admissible to
prove that he did or did not do the same or a similar thing at another time. It is
well-settled that evidence is not admissible which shows, or tends to show, that the
accused in a criminal case has committed a crime wholly independent from the
offense for which he is on trial. A man may be a notorious criminal and may have
committed many crimes and still be innocent of the crime charged on trial. (People
vs. Galo)
Previous acts may be received in evidence to prove a specific intent or knowledge,
identity, plan, system, scheme, habit, custom, or usage, and the like.

HEARSAY
(1) By "hearsay" is meant that kind of evidence which derives its value not solely from the
credit to be attached to the witness himself but also in part because of the veracity and
competency of some other person from whom the witness may have received his
information. (Jones on Evidence, Vol. 1)
(2) Evidence not proceeding from the personal knowledge of the witness, but from the mere
repetition of what he has heard others say; that which does not derive its value solely
from the credit of the witness, but rests mainly on the veracity and competency of other
persons. The very nature of the evidence shows its weakness, and it is admitted only in
specified cases from necessity. (State vs. Ah Lee)

Reasons for the rule excluding hearsay


The grounds usually assigned for the rejection of hearsay evidence are:

The irresponsibility of the original declarant;


The depreciation of truth in the process of repetition;
The opportunities for fraud its admission would open;
The tendency of such evidence to protect legal inquiries, and encourage the substitution
of weaker for stronger proofs.

The only real essential objections, however, are the absence of an oath and of crossexamination, the presence of the witness being valuable mainly as a means of securing these,
and being in some cases waived without entailing the exclusion of his testimony. (Manual of the
Law of Evidence, Signey L. Phipson, p. 91)

The hearsay rule


Classification of out-of-court statements:
(1) Hearsay: those which are considered as hearsay and therefore are inadmissible; this
occurs when the purpose for introducing the out-of-court statements is to prove the truth
of the acts asserted therein.
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(2) Non-hearsay: those which are not considered legal hearsay are admissible. This occurs
when the purpose of introducing the statements is not to prove the truth of the facts
asserted therein but only the making of the statement, and are admissible in evidence
when the making of the statement is relevant.
These are the so-called independently relevant statements; the ban on hearsay
evidence does not cover independently relevant statements, which tend to prove
the tenor and not the truth of the statement.
(3) Exceptions to the hearsay rule: those which are hearsay but are considered as
exceptions to the hearsay rule and are therefore admissible.

The test of cross-examination


The fundamental test, shown by experience to be invaluable, is the test of cross-examination.
The rule to be sure, calls for two elements. Cross-examination proper, and confrontation; but the
former is the essential and indispensable feature, the latter is only subordinate and dispensable.
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of
error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may
be best brought to light and exposed by the test of cross-examination.

Writings and acts may also be hearsay


Hearsay evidence, in accordance with the rule aforestated, is to be rejected without regard to its
character, as being oral or written statements or acts. And save for such exceptions as certain
kinds of maps, ancient documents, pedigree writing, entries in the course of business, and the
like a writing which is hearsay in nature is not to be admitted in evidence because of its form or
the circumstances in which it may have been made. (Jones on Evidence, Vol. I, Section 298)

Illustrations of hearsay evidence


(1) Testimony given by a witness at the preliminary investigation, even if she were crossexamined there, cannot be admitted as evidence in court even where she has been
served subpoena several time but still failed to appear at the trial. (Toledo, Jr. vs.
People, 85 SCRA 355)
(2) An alleged affidavit of desistance will not be given probative value where the original
was inexplicably not produced and the affiant was not impeached with the affidavit at the
trial. (People vs. Tibayan, 85 SCRA 378)
(3) Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as to the testator's
intention and which is hearsay, has no probative value. (Rigor vs. Rigor, 89 SCRA 493)
(4) The newspaper clippings are hearsay and of no evidentiary value. (People vs. Aquel, 97
SCRA 795)
(5) The testimony of a witness that the accused has confessed to the mayor that he killed
the victim and has surrendered the bolo then, must be discarded for being hearsay, as
he did not witness the alleged confession and surrender. (People vs. Utrela, 105 SCRA
497)
(6) An extrajudicial confession is not admissible for being hearsay, as the appellants did not
cross-examine confessants on their confessions and their witnesses.
(7) The accused are acquitted where no evidence exists to support their conviction except
the confession of their co-accused which were hearsay and inadmissible. (People vs.
Obedoza, 105 SCRA 694)

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Hearsay evidence not objected to is admissible


The courts differ as to the weight to be given to hearsay evidence admitted without objection.
Some hold that when hearsay has been admitted without objection, the same may be
considered as another properly admitted testimony. Others maintain that it is entitled to no more
consideration than if it had been excluded. The rule prevailing in this jurisdiction is the latter one.
Although the question of admissibility of evidence cannot be raised for the first time on appeal,
yet if the evidence is hearsay it has no probative value and should be disregarded whether
objected to or not. (People vs. Cabral, G.R. No. 29412, September 13, 1993)

Independently relevant statements


The hearsay rule does not apply to independently relevant statements, or those statements
which are relevant independently of whether they are true or not true. They may be roughly
grouped into two classes:

Those statements which are the very facts in issue; and


Those statements which are circumstantial evidence of the facts in issue.

These statements are admitted not as proof of the truth of the facts revealed therein but only as
to the fact that they have been made as part of the narration of a witness. (Alfonso vs. Juanson,
228 SCRA 239)

Statements which are the facts in issue


Where the statements or utterances of specific words are the facts in issue, the testimony of
witnesses thereto is not hearsay. For example, in a prosecution for slander, a witness may
testify that he heard the accused uttered the slanderous words. 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. There is no question of hearsay involved. (McKelvey on Evidence, Section
147)
Statements which are circumstantial evidence of the facts in issue
The statements from which the facts in issue may be inferred may to by witnesses without
violating the hearsay rule. Of this kinds are:
(1) Statements of a person showing his state of mind, his mental condition, knowledge,
belief, intention, ill-will, good or bad faith, and other emotions. (U.S. vs. Enriquez, 1 Phil.
241)
(2) Statements which may identify the date, place and condition, as illness and the like.
(Seeley vs. Central Vt. R.C. 88 VT 178, 182)
(3) Statements which may identify the date, place and person in question. (Harris vs.
Central R. Co., 78 Ga. 525; 3 S.E. 355)

Statements impeaching the credibility of a witness


Statements may also serve to show the want of credibility of a witness. The statements made by
the witness on previous occasions contrary to his testimony at the trial are receivable to

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impeach his credibility. The previous statements are being offered regardless of their truth or
falsity. They are presented merely to show the conflict with the present testimony of the witness.
(Moran, Comments on the Rules of Court, Vol. V, 1980 Ed., p. 291)

Exceptions to the hearsay rule


There are well-recognized exceptions to the hearsay rule. These exceptions are founded on
necessity and trustworthiness.
(1) Necessity: the necessity may consist in the unavailability of other testimony from the
same person - as where he is deceased, or out of jurisdiction, or detained by official
duty; or in the probable inferiority of other evidence from the same person or other
persons, and therefore in the probable loss of superior evidence - as where the person is
now biased but was then unbiased, or where the matter is ancient and the earlier
evidence is perhaps superior. In such cases, it would be unreasonable to adhere rigidly
to the rule.
(2) Trustworthiness: the circumstances diminishing the risk of untrustworthiness may be
such as make it likely that the utterance would be naturally sincere; or, if they were not
inherently so, that other considerations, such as the danger of detection and the fear of
punishment, would counteract the motive to falsify; or that the utterance was made
under such conditions of publicity that an error, if any, would have been corrected by
others, regardless of the original motives of the speaker or writer. These circumstances
may be found, alone or united, to produce a diminution of the risk of untrustworthiness.
In such conditions, the relaxation of the rule involves fewer drawbacks than it avoids.
(Wigmore's Code of Evidence, p. 269)

Independently relevant statements


Dying declarations
Declarations against interest
Pedigree
Family tradition
Common reputation
Res gestae
Entries in the course of business
Official records
Commercial lists
Learned treatises
Prior testimony
Other exceptions

Dying declaration
Doctrine of completeness:
(1) The statement as offered must not be merely part of the whole as it was expressed by
the declarant; it must be complete as far as it goes. To be complete does not mean that
it should contain everything that constitutes the res gestae of the subject of his
statement, but it should express in full all that he intended to say as conveying his
meaning in respect of such fact.

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(2) In a case, the SC held as inadmissible the dying statement of a victim as a dying
declaration where the victim, after she was asked, "Apo, apo, what happened?" merely
uttered before she died, "Si Paqui". The Court observed that the answer was not "Apo,
apo, who did this to you?" In other words, the deceased was cut off by death before she
could convey a complete or sensible communication. The SC cannot speculate what the
rest of her communication might have been had death not interrupted her. (People vs.
De Joya, 203 SCRA 403, Nov. 8, 1991)
Form of dying declaration: The dying declaration may be in oral or in writing, and when in writing
it need not be in the handwriting of the declarant. Where the declaration was orally made, it may
be testified to by the person to whom it was made, and when it was reduced to writing, it must
be proved by the writing itself which may be authenticated and proved as any document offered
in evidence. (People vs. Dizon, 44 Phil. 267)
Dying declaration favorable to accused, admissible: In cases where the dying declaration was
that the victim does not know who the offender is, that the firearm was discharged accidentally
and not purposedly by the accused and that the accused was not the author of the crime, said
declaration was admitted in favor of the accused.
Probative value of dying declarations: After a dying declaration is proved with all the essential
requisites of its admissibility, its credibility and weight should be determined by the court, by the
same rules that are used in testing the weight and credibility of a living witness' testimony.
Although, as a general rule, when a person is at the point of death, every motive to falsehood is
silenced, and the mind is induced by the most powerful considerations to speak the truth, and
therefore his statements, under such circumstances, deserve great weight. (U.S. vs. Singson,
41 Phil. 53)

Declaration against interest


Requisites:
(1) The declarant is dead or unable to testify;
(2) It relates to a fact against the interest of the declarant;
(3) At the time he made the declaration, the declarant was aware that the same was
contrary to his aforesaid interest; and
(4) The declarant had no motive to falsify and believed such declaration to be true.
The interest must be actual or real: It is essential that at the time of the statement, the
declarant's interest affected thereby should be actual, real or apparent, not merely contingent,
future or conditional; otherwise, the declaration would not in reality be against interest. Similarly,
declarations of a former owner of the property affected are not admissible.
Admissible against third persons: If all the requisites for admission of a declaration against
interest are present, the admission is admissible not only against the declarant but against third
persons, even against the State.
Distinguished from admission:
(1) Admission may be used although the admitter is still alive, while the present exception
refers to a declaration against interest of a deceased person; and

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(2) An admission may be used only against the admitter and those identified with him in
legal interest while a declaration against interest is admissible against third persons.
(Middleton vs. Meton, 10 B. & C., 317)

Declaration against pedigree


Pedigree: the history of family descent which is transmitted from one generation to another by
both oral and written declarations and by traditions.
Requisites:
(1)
(2)
(3)
(4)
(5)

That declarant is dead or unable to testify;


That pedigree is in issue;
That declarant be related to the person whose pedigree is the subject of inquiry;
That such relationship be shown by evidence other than the declaration; and
That the declaration was made ante litem motam or before any controversy has arisen
therefrom.

Common reputation
Reputation: the common report which others make about him, the talk about him that shows the
opinion in which he is held in the community; the sum or composite of the impressions
spontaneously made by him from time to time, and in one way or another, upon his neighbors
and acquaintances.
Common reputation: the prevailing belief in the community as to the existence of a certain fact
or aggregation of facts.
Rumor: a loose talk which the community has not had an opportunity to evaluate and accept or
reject.
Matters which may be established by common reputation:
(1) Facts of public or general interest more than 30 years old;
(2) Marriage and related facts; and
(3) An individual's moral character.
Requisites respecting facts of public or general interest:
(1) The fact must be of public or general interest and more than 30 years old;
(2) The common reputation must have been ancient;
(3) The reputation must have been one formed among a class of persons who were in a
position to have some sources of information and to contribute intelligently to the
formation of the opinion; and
(4) The common reputation must have been existing previous to the controversy.
Moral character: the inherent qualities of the person impressed by nature or by habit rather than
to any opinion that may be formed or expressed of him by others on what he really is.
Requisites respecting moral character:

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(1) That it is the reputation in the place where the person in question is best known;
(2) That it was formed ante litem motam.

Res gestae
Res gestae (literally means "transactions" or "things done"): refers to those exclamations and
statements made by either the participants, victims, or spectators to a crime immediately before,
during, or immediately after the commission of the crime, when the circumstances are such that
the statements were made as a spontaneous reaction or utterance inspired by the excitement of
the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false
statement.
Classification of res gestae:
(1) Spontaneous exclamations; and
(2) Contemporaneous statements or verbal acts.
Spontaneous statement: a statement or exclamation made immediately after some exciting
occasion by a participant or spectator and asserting the circumstances of that occasion as it is
observed by him.
Requisites:
(1) There must be a startling occurrence;
(2) The statement is spontaneous, made immediately before, during or after a startling
occurrence; and
(3) It relates to the circumstances of such occurrence
The rule of res gestae applies when the declarant himself did not testify; hence, it does not
apply where the declarant took the witness stand to testify.
Verbal acts: utterances which accompany some act or conduct to which it is desired to give a
legal effect.
Requisites:
(1)
(2)
(3)
(4)

Act or occurrence characterized must be equivocal;


Verbal acts must characterize or explain the equivocal act;
Equivocal act must be relevant to the issue; and
Verbal acts must be contemporaneous with equivocal act.

Equivocal act: an act that is ambiguous.


Dying declaration may be regarded as part of the res gestae: Even if a statement is not
admissible as a dying declaration, the same may still be admitted as part of the res gestae
where it was made immediately after the startling occurrence.

Entries in the course of business


Requisites:

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(1) Entries must have been made at or near the time of the transaction, to which they refer;
(2) Entrant must have been in a position to know the facts stated in the entries;
(3) Entries must have been made by entrant in his professional capacity or in the
performance of his duty;
(4) Entries were made in the ordinary or regular course of business or duties; and
(5) Entrant must be deceased or unable to testify.
In the ordinary course of business: means that the entries have been made regularly in the
management of the business.
Reason: to afford sufficient probability that the facts are as stated in the memorandum, and
necessity, the entries being the best available evidence.
Duty to make entry: it is not essential that the entrant shall have been under an absolute duty to
make entry. It is sufficient "if the entry was the natural concomitant of the transaction to which it
relates and usually accompanies it. A duty self-imposed by the entrant has been held to satisfy
the rule."

Entries in official records


Requisites:
(1) That the entry was made by a public officer or by another person specially enjoined by
law to do so;
(2) That it was made by the public officer in the performance of his duties, or by such other
person in the performance of a duty specially enjoined by law; and
(3) That the public officer or other person had sufficient knowledge of the facts by him stated
which must have been acquired by him personally or through official information.

Commercial lists and the like


Requisites:
(1) Statements of matters of interest to persons engaged in an occupation;
(2) Statements must be contained in a list, register, periodical, or other published
compilation;
(3) Compilation is published for use by persons engaged in that occupation;
(4) Is generally relied upon by them therein.
A report in a newspaper account is not a commercial list. At most, it is an analysis or opinion
which carries no persuasive weight.

Learned treatises
Basis: the Alabama Rule standard medical treatises and works are admissible insofar as they
are relevant to the issues in the particular case.
Requisites:

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(1) That the court take judicial notice that the writer of the statement in the treatise,
periodical, or pamphlet is recognized in his profession or calling as expert in the subject;
or
(2) A 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.

Business records (electronic, optical, or other similar means)


Requisites:
(1) A memorandum, report, record, or data, compilation of acts, events, conditions, opinions,
or diagnoses is made by electronic, optical, or other similar means;
(2) It was made at or near the time of or from transmission or supply of information;
(3) It was made by a person with knowledge thereof;
(4) It was kept in the regular course or conduct of a business activity, and such was the
regular practice to make the memorandum, report, record, or data compilation by
electronic, optical, or similar means; and
(5) All of which are shown by the testimony of the custodian or other qualified witnesses.

Testimony or deposition at a former proceeding (Sec. 47)


Former testimony: testimony which has been adduced at an earlier proceeding; may be
classified as an exception to the hearsay prohibition, or it may be considered as non-hearsay
under the theory that the requirements of the hearsay concept have been met.
Requisites:
(1)
(2)
(3)
(4)

The witness whose testimony is offered in evidence is dead or unable to testify;


Identity of parties;
Identity of issues; and
Opportunity of cross-examination of witnesses.

This rule embraces judicial or administrative proceedings.


Actual cross-examination not required: actual cross-examination of the witness in the former
trial is not a pre-requisite. Failure to appear and cross-examine, when it was in his power, is a
waiver of the privilege, and the testimony given therein is admissible in a second trial.

OPINION RULE
Opinion: an inference or conclusion drawn by a witness from facts, some of which are known to
him and others assumed, or drawn from facts, which although lending probability to the
inference do not evolve it by a process of absolutely necessary reasoning.
GR:
The opinion of a witness is not admissible.
XPN: (1) Opinion of expert witness; (Sec. 49)
(2) Opinion of ordinary witness. (Sec. 50)
Statement of fact as distinguished from an expression of opinion: the former is susceptible of
exact knowledge while the latter is not.

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Matters on which an ordinary witness may testify:


(1) The identity of a person about whom he has adequate knowledge;
(2) A handwriting with which he has sufficient familiarity; and
(3) The mental sanity of a person with whom he is sufficiently acquainted.
The witness may also testify on his impressions of the emotion, behavior, condition or
appearance of a person.
However, it must be limited to those opinions or inferences which are rationally based on the
perception of the witness and helpful to a clear understanding of his testimony or the
determination of the fact in issue.

CHARACTER EVIDENCE
GR:
The character of a person is not admissible in evidence.
XPN: (1) Criminal cases:
The accused may prove his good moral character which is pertinent to the
moral trait involved in the offense charged (e.g. one charged with theft might
offer evidence of honesty, while someone accused of murder might show that
he is peaceful, but not vice versa).
Unless in rebuttal, the prosecution may not prove his bad moral character which
is pertinent to the moral trait involved in the offense charged (i.e. unless and
until the accused gives evidence of his good moral character, the prosecution
may not introduce evidence of or otherwise seek to establish his bad character.
The good or bad moral character of the offended party may be proved if it tends
to establish in any reasonable degree the probability or improbability of the
offense charged (e.g. on a charge of rape, the character of the woman is not
ordinarily directly in issue, but evidence of previous unchastity may be
circumstantially relevant and admissible on the question of her consent, where
absence of consent is an essential element of the crime).
(2) Civil cases:
Evidence of the moral character of a party in a civil case is admissible only when
pertinent to the issue of character involved in a case.
Evidence of good character or reputation is not relevant in the first instance in a
civil action or where the reputation of the party has not been attacked by
evidence of bad character.
As to witnesses in civil and criminal cases, rule: evidence of the good character of a witness is
not admissible until such character has been impeached.
A witness may be impeached by the party against whom he was called by evidence that his
general reputation for truth, honesty, or integrity is bad, but not by evidence of particular
wrongful acts, except that it may be shown by the examination of the witnesses, that he has
been convicted of an offense. Until such moral character has been impeached, the evidence of
the good character of a witness is not admissible.

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Rule 131
BURDEN OF PROOF AND PRESUMPTIONS
Proof: the establishment of a requisite degree of belief in the mind of the trier of fact as to the
facts in issue; the cumulation of evidence that persuades the trier of facts.
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.
CRIMINAL CASES
The burden of proof is with the
prosecution by reason of the
presumption of innocence.
Upon whom burden of
proof rests

The defendant has the burden of


proof if he raises an affirmative
defense on the complaint of the
plaintiff.
To sustain conviction:
evidence
of
guilt
reasonable doubt

Degree of proof that


satisfies the burden of
proof

CIVIL CASES
The plaintiff has the burden of
proof to show the truth of his
allegations if the defendant
raises a negative defense.

beyond

Preliminary investigation: that


which engenders a well-founded
belief of the fact of the commission
of a crime

Preponderance of evidence

Issuance of warrant of arrest:


probable cause, i.e. that there is a
reasonable ground to believe that
the accused has committed an
offense

Hierarchy of evidence
(1)
(2)
(3)
(4)

Proof beyond reasonable doubt;


Clear and convincing evidence;
Preponderance of evidence;
Substantial evidence.

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

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Presumptions
Classes of presumption juris:
(1) Conclusive presumption (jure et de jure): one which cannot be overcome by evidence to
the contrary
(2) Disputable presumption (juris tantum): one which is satisfactory if uncontradicted, but
may be contradicted and overcome by other evidence

Classes of conclusive presumption


(1) Estoppel in pais: whenever a party has, by his own declaration, act, or 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, or
omission, be permitted to falsify it
(2) Estoppel against tenant: 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.
What a tenant is estopped from denying is the title of his landlord at the time of
the commencement of the landlord-tenant relation. If the title is one that is
alleged to have been acquired subsequent to the commencement of that relation,
the presumption will not apply. The tenant may show that the landlord's title has
expired or been conveyed to another or himself.

Rule 132
PRESENTATION OF EVIDENCE,
EXAMINATION OF WITNESSES
Examination to be done in open court (Sec. 1)
How oral evidence given: the usual way of presenting oral testimony is to call the witness to the
stand and ask him questions. The testimony of witnesses is elicited by interrogation or the
propounding of questions.
Purpose: to enable the court to judge the credibility of the witness by
(1) The witness' way of testifying;
(2) Their intelligence; and
(3) Their appearance.
Questions propounded to a witness must:

BE relevant;
NOT be indefinite or uncertain;
NOT be argumentative;
NOT call for a conclusion of law;
NOT call for opinion or hearsay evidence;
NOT call for an illegal answer;
NOT call for self-incriminating testimony;
NOT be leading;
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NOT be misleading;
NOT tend to degrade the reputation of the witness;
NOT be repetitious;
NOT call for a narration.

Order in the examination of an individual witness (Sec. 4)


(1) Direct examination: the examination-in-chief of a witness;
(2) Cross-examination: an examination to rebut matters stated in the direct examination and
any inference or deductions which may be drawn therefrom;
(3) Redirect examination: a reexamination of the witness by the party calling him after he
has been cross-examined to explain or supplement his answers given during crossexamination;
(4) Re-cross examination: an examination by the adverse party of a witness after re-direct
examination.
Direct examination:
GR:
Testimony in narrative form is NOT allowed.
XPN: (1) Witness is her own counsel; (Thresher vs. Bank, 68 Conn. 201, 36 Atl. 38)
(2) When allowed by the trial court. (People vs. Davis, 6 Cal. App. 229, 91 Pac. 810)
Cross-examination:
Purposes:
(1)
(2)
(3)
(4)

To discredit the witness;


To discredit the testimony of the witness;
To clarify certain matters;
To elicit admissions from a witness.

Scope or limits:
(1) English rule: when 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.
(2) 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.
Note: Both rules are followed in the Philippines.
Redirect examination:
Questions on matters not dealt with during the cross-examination may be allowed by the court
in its discretion.

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Purpose: to complete the answer of a witness or of adding a new matter which has been
omitted, or of correcting a possible misinterpretation of testimony. (People vs. de Guzman, G.R.
No. 117217)
Re-cross examination:
The adverse party may re-cross-examine the witness on matters stated in his re-direct
examination and also on such other matters in the discretion of the court.

Recalling witness (Sec. 9)


GR:
A witness cannot be recalled after the examination by both parties has been concluded.
XPN: When allowed by the court in the interest of justice.

Misleading question
A misleading question is one which assumes as true a fact not yet testified to by the witness, or
contrary to that which he has previously stated.
GR:
A misleading question is not allowed.
XPN: (1) When waived;
(2) Asking hypothetical questions to an expert witness.

Impeaching witnesses
Procedure for impeaching witness by evidence of prior inconsistent statements (laying the
predicate):
(1) The statement must be related to him with the circumstances of the times and places
and persons present;
(2) If the statement is in writing, they must be shown to the witness before any question is
put to him concerning them; and
(3) He must be asked whether he made such statements, and, if so, allowed to EXPLAIN
them.

Impeaching one's own witness


GR:
A party cannot impeach the credibility of his own witness.
XPN: When the witness he produced or called is an adverse witness, or one declared by the
court as unwilling or a hostile witness.
XPN to XPN: The adverse or unwilling or hostile witness cannot be impeached by
evidence of his bad character.
Unwilling or hostile witness: one declared by the court as such upon adequate showing
(1) Of his adverse interest;
(2) Unjustified reluctance to testify; or
(3) His having misled the party into calling him to the witness stand.

Witness may refer to memorandum


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This rule permits a witness to refresh his memory respecting a fact by anything written or
recorded by himself or under his direction. This provision applies only when it is shown
beforehand that there is need to refresh the memory of the witness.
Requisites:
(1) The entries were written or recorded by the witness himself;
(2) He made such entries at the time the events occurred, or immediately thereafter, or at
any other time when the facts were still fresh in his memory; and
(3) The writer must assure the court that when the entries were made, those entries
reflected the truth.

Authentication and proof of documents


Classification of documents:
(1) Public documents
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 acknowledge before a notary public, except last wills and testaments;
Public records, kept in the Philippines, of private documents required by law to
be entered therein; and
A document electronically notarized in accordance with the rules promulgated by
the Supreme Court. (Rules on Electronic Evidence, A.M. No. 01-7-01-SC)
(2) Private documents: all other writings not covered by the list above are private.
Note: In criminal law, documents are classified into public, official, commercial, and private
documents, but when these types of documents are offered in evidence, they fall into either
public or private documents.
Proof of authenticity:
(1) Private document: the due execution and authenticity must be proved by:
Anyone who saw the document executed or written; or
Evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be.
Private documents that need not be authenticated to be admissible:
(1) Ancient document:
Requisites:
i. It is more than 30 years old at the time it is introduced in evidence;
ii. It is produced from a custody where ought to be had it been genuine; and
iii. It does not bear any sign of alteration or circumstances of suspicion.
(2) Handwriting: the genuineness of handwriting may be proved:
By any witness who believes it to be the handwriting of such person because
i. He has seen the person write; or

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ii. He has seen writing purporting to be his upon which the witness has
acted or been charged.
By a comparison, made by the witness or 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.
Note: Handwriting experts are NOT mandatory.

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