MONDAY, NOVEMBER 28, 2011

DEAN RIANO EVIDENCE FINALS REVIEWER and LAST MINUTE TIPS by Bimby and Klowee
DEAN RIANO EVIDENCE FINALS REVIEWER and LAST MINUTE TIPS
by Bimby and Klowee

1. Memorize Falsus in uno falsus in omnibus

Falsus in uno vs. Falsus in Omnibus means false in one thing, false in everything
*interpretation is not strict
*While the witnesses may differ in their recollections of an incident, it does n
ot necessarily follow from their disagreements that all of them should be disbel
ieved as liars and their testimonies completely discarded. It is not a positive
rule of law. The witness must have a conscious and deliberate intention to falsi
fy a material point.
2. Distinguish Factum Probans vs. Factum Probandum
Factum Probandum
Factum Probans
Ultimate Facts
Material evidencing the proposition
Hypothetical
Existent.
a. Factum probandum is the fact or proposition to be established
b. Factum Probans the facts or material evidencing the fact or proposition
to be established
*Example: If P claims to have been injured by the negligence of D who denies hav
ing been negligent, the negligence of D and the causal connection between such n
egligence, and the injuries of P taken as a whole = Factum Probandum
The evidence offered by P, whether it be object, documentary or testimonial, con
stitute the materials to prove the liability of D. The totality of the evidence
to prove the liability refers to the Factum Probans
*If the defendant admits his negligence in his answer to the complaint, there is
no more need to prove negligence. Hence, negligence ceases to be a factum proba
ndum in this case.
*if the factum probandum signifies the fact or proposition to be established, then
matters of 1) judicial notice, 2)conclusive presumptions, 3)judicial admissions
cannot qualify as parts of the factum probandum of a particular case, because s
uch matters need not be established or proven.
*Factum probandum in civil case refers to the elements of a cause of action from
the point of view of the plaintiff and the elements of the defense from the poi
nt of view of the defendant.
*In criminal cases factum probandum includes all matters that the prosecution mu
st prove beyond reasonable doubt in order to justify a conviction.
3. Can Rules of Evidence be used in non-judicial proceedings?
The rules of evidence, being parts of the Rules of Court, apply only to judicial
proceedings (Sec. 1 Rule 128)
*Sec.4. In what cases not applicable. These Rules shall not apply to election ca
ses, land registration, cadastral, naturalization and insolvency proceeding, and
other cases not herein provided for, except by analogy or in a suppletory chara
cter and whenever practicable and convenient.
Ex. Not applicable in Administrative bodies, CSC, Petition for naturalization, l
abor cases
4. Best Evidence Rule (Original document rule) (primary evidence rule)
a. Concept
i. Original
of the document must be produced; When the subject matter of the inquiry is the
contents of a document , no evidence shall be admissible other than the original
document itself,
b. Exceptions to the rule
i. When the
original has been lost, or destroyed, or cannot be produced in court, without ba
d faith on the part of the offeror;
ii. When the o
riginal is in the custody or under the control of the party against whom the evi
dence is offered, and the latter fails to produce it after reasonable notice;
iii. When the o
riginal consists of numerous accounts or other documents which cannot be examine
d in court without great loss of time and the fact sought to be established from
them is only the general result of the whole
iv. When the ori
ginal is a public record in the custody of a public officer or is recorded in a
public office.
*Involves only the contents of a writing. The rule cannot be invoked unless the
contents of a writing is the subject of judicial inquiry, in such case; the best
evidence is the original writing itself.
*Where the issue is the execution or existence of the document or the circumstan
ces surrounding its execution, the best evidence rule does not apply and the tes
timonial evidence is admissible.
*Where the issue is only as to whether such document was actually executed, or e
xists, or on the circumstance relevant to or surrounding its execution, the best
evidence rule does not apply and testimonial evidence is admissible.
*The best evidence rule applies only when the purpose is to establish the terms
of a writing. When the evidence introduced concerns some external facet about a
writing like its existence, execution or delivery without reference to its terms
, the rule cannot be invoked. The subject of inquiry under the best evidence ru
le it the CONTENTS of a writing, NOT THE TRUTH thereof. Where the truth is in is
sue, the hearsay rule will now be involved.
c. Illustrative applications
i. 1994 Bar
At the trial of ace for the violation of the Dangerous Drugs Act, the prosecutio
n offers in evidence a photocopy of the marked bills used in the buy-bust operatio
n. Ace objects to the introduction of the photocopy on the ground that the Best
Evidence Rule prohibits the introduction of secondary evidence in lieu of the or
iginal is the photocopy admissible in evidence?
1. Yes, the photocopy of the bills being object evidence is admissible in
evidence without violation of the best evidence rule. The rule applies only to d
ocumentary evidence and not to object evidence.
*The reason for the best evidence rule is the prevention and detection of fraud.
*The best evidence rule may be waived if not raised in the trial
*If the original be presented in evidence
1) Find a legal excuse for failure 2) present secondary evidence
If secondary evidence is to be offered in evidence, like a copy, the proponent h
as to lay the basis for the admission of the copy of the document.
Excuses for not presenting the original
1. When the original has been lost or destroyed or cannot be produced in c
ourt, without bad faith on the part of the offeror;
2. When the original is in the custody or under the control of the party a
gainst whom the evidence is offered and the latter fails to produce it after rea
sonable notice
3. When the original consists of numerous accounts or other documents cann
ot be examined in court without great loss of time and the fact sought to be est
ablish is only the general result of the whole; and
4. When the original is a public record in the custody of a public officer
or is recorded in a public office.
*How to lay the basis for presenting secondary evidence:
a) The offeror must prove the execution and existence of the original document;
b) The offeror must show the cause of its unavailability
Loss, destruction, or unavailability
c) The offeror must show that the unavailability was not due to his bad faith
Correct order of proof is as follows Existence, execution, loss, and contents.
Due execution and authenticity of the document must be proved either: a) by anyo
ne who saw the document executed or written, or by evidence of the genuiness of
the signature or handwriting of the maker.
When original is in the custody or control of the adverse party:
Laying the basis requires:
a. The original exists.
b. That the said document is under the custody or control of the adverse pa
rty;
c. That the proponent of secondary evidence has given the adverse party re
asonable notice to produce the original document
d. That the adverse party failed to produce the original document despite t
he reasonable notice.
*Waiver: Failure to object to the parole evidence presented by the adverse party
operates as a waiver of the protection of the rule.
* The loan may be proved by the photocopy as long as A lays the basis for the in
troduction of secondary evidence, to wit: a) the existence and due execution of
the original, and b) the loss of the original without bad faith on his part. (Se
c. 5, Rule 130)
Distinction between Best Evidence and parol Evidence
Best Evidence Rule
Parol Evidence Rule
1. Establishes a preference for the original document over secondary evide
nce thereof.
Presupposes the original is available
2. Precludes the admission of secondary evidence if the original document
is available.
Precludes the admission of other evidence to prove the terms of a document other
than the contents of the document itself for the purpose of varying the terms o
f the writing.
3. Can be invoked by any litigant to an action whether or not said litigan
t is a party to the document involved.
Can be invoked only by the parties to the document and their successors in inter
est.
Applies to all forms of writing
Applies only to written contracts and wills.
5. Define Parol Evidence
*Applies to agreements and will. Parol evidence means offering extrinsic eviden
ce that would modify, explain or add to the terms of the written agreement. BUT
it is allowed if any of the following are shown:
a. An intrinsic ambiguity, mistake, or imperfection in the written agreeme
nt;
b. The failure of the written agreement to express the true intent and agre
ement of the parties;
c. The validity of the written agreement;
d. The existence of other terms agreed to by the parties or their successor
s in interest after the execution of the written agreement.
And only if it is put in issue in the pleadings.
*The rule applies ONLY to contracts which the parties have decided to set forth
in writing. When n the terms of an agreement is merely oral, the parol evidence
rule should not be applied.
*Parol evidence does not apply in oral agreements, public writing, private writi
ng, express trust (although parol evidence applies to wills.
6. Testimonial Evidence Adverse party Read Sec. 6. Loss, Destroyed, Unavai
lable Originals (Sec 5)
*Showing that the original document is in the custody or under the control of th
e adverse party does not ipso facto authorize the introduction of secondary evid
ence to prove its contents. The party who seeks to present secondary evidence mu
st lay a basis for its introduction.
Laying the basis:
1) That the original exists;
2) That the document is under the custody or control of the adverse party;
3) That the proponent of secondary evidence has given the adverse party rea
sonable notice to produce the original document;
4) That the adverse party failed to produce the original document despite t
he reasonable notice.
How to notify: motion for the production of the original or by subpoena duces te
cum, provided that the party in custody has sufficient time to produce it.
After the foundational requirement for the introduction of secondary evidence ha
ve been complied with, secondarily evidence may now be presented as in the case
of loss. This mean that the contents of the document may now be proven by
a copy of the document a recital of its contents in some authentic document
By testimony of a witness in the order stated (Sec. 5 Rule 130)
7. Testimonial evidence topics not found in Rule 130
a. 132 (Sec. 3) Right of witnesses (Sec .6) Cross Exam and Sec. 11 Impeach
ment of witnesses
i. Are the r
ights of the accused violated in case of compulsory HIV testing? No. There is no
testimonial compulsion involved by extracting blood from the accused for testin
g purposes. Thus, there is no violation of the right to privacy and the right to
be presumed innocent.
ii. Should DNA
evidence be admitted? Yes. The right against self incrimination applies only to
testimonial evidence. Extracting blood samples and cutting strands of hair do n
ot involve testimonial compulsion but purely mechanical acts which neither requi
res discretion or reasoning. (Tijing v. Court of Appeals.
iii. The right
against self incrimination does not apply to physical and mechanical act. It ap
plies only to testimonial compulsion which is not the case under the facts.
iv. Degrading qu
estions although degrading a witness must answer the question if the degrading a
nswer a) is the very fact in issue; or b) refers to a fact from which the fact i
n issue would be presumed. (Rule 132)
8. What are the elements of a dying declaration? #3 exam
*Must comply with the following foundational elements
1. That the declaration is one made by a dying person;
2. That the declaration was made by said dying person under the
consciousness
Of impending death
3. That the declaration refers to the cause and circumstances su
rrounding the death of the declarant and not of anyone else;
4. That the declaration is offered in a case where the declarant s
death is the subject of inquiry;
5. The declarant is competent as a witness had he survived;
6. The declarant should have di
ed.
Note: must refer to the death of the declarant, not merely injuries.
*If the declarant survives HIS DECLARATION MAY BE ADMISSIBLE AS PART OF THE RES
GESTAE.
*The former rule embodied in Supreme Court decisions, which declared that a dyin
g declaration is offered in a criminal case for homicide, murder, or parricide w
herein the declarant is the victim, no longer holds true. As amended
Parts of the Res Gestae
Literally means things done . Res Gestae is the startling event of
which the spontaneous statement is only a part of.
The use of res Gestae in the Philippines is limited to two matte
rs:
1) Spontaneous statements
a. That there is a startling occurrence taking place;
b. That statements were made while the event is taking place or immediately
prior to or subsequent thereto;
c. The statements were made before the declarant had the time to contrive
or devise a falsehood
d. That the statement relates to the circumstances of the startling even or
occurrence, or that the statements must concern the occurrence in question and
its immediate attending circumstance.
2) Verbal acts Statement accompanying an equivocal act material to the issu
e, and giving it a legal significance a conduct that is equivocal or ambiguous,
one which in itself does not signify anything when taken separately (legal signi
ficance) To be admissible, the following requisites must be present:
a. The principal act to be characterized must be equivocal (clear need not
be explained);
b. The equivocal act must be material to the issue;
c. The statement must accompany the equivocal act;
d. The statement gives a legal significance to the equivocal act

9. Exceptions to the hearsay rule, are all hearsay, but are admissible Sec
. 36 of Rule 130 ex. Which of the following is hearsay?
Hearsay vs.
Opinion
Hearsay evidence is one that is not based on one s personal knowledge of others to
prove the truth of the matter asserted in an out-or-court
An opinion evidence is based on the personal knowledge or personal conclusion of
the witness based on his skill, training, or experience.
Examples of Non-hearsay evidence
a. A statement having probative worth simply by virtue of the fact that it
was uttered, if relevant to a material fact inissue is not hearsay and is gener
ally admissible. Where a statement is not offered for the truth of the contents
of the conversation, but only to show that it was made, then the statement is no
t hearsay. For example, a statement that is offered to show its patent falsity,
so as to suggest the defendant s consciousness of guilt, is NOT hearsay.
b. A statement relating to the state of mind of the declarant and statement
relating to the state of mind of the listener, these are not hearsay, but merel
y constitute circumstantial evidence of an assertion. Ex. To prove by inference
the testator s state of mind, I am Stalin, Roosevelt, Saddam Hussein, rolled into
one
c. A threat against a witness may be offered in evidence to show its impac
t on the witness and where the reasonableness of a person s conduct is an issue, a
nd out of court declaration may be offered to explain the person's reactions to
the declaration.
d. Words offered to prove hearer s reaction are admissible when they are off
ered to show their effect on one whose conduct is at issue.
Independent relevant statement: The newspaper clipping is admissible as non-hears
ay if offered for the purpose of showing that the statement of X was made to a r
eporter regardless of the truth or falsityof the statement. If it is relevant, i
t is admissible as an independent relevant statement (non hearsay) It would be h
earsay if offered to prove the truth that x was the robber.
Exception to the Hearsay Rule:
1. Dying Declarations
2. Declaration against interest
3. Act or declaration about pedigree
4. Family reputation or tradition regarding pedigree
5. Common reputation
6. Parts of the res Gestae
7. Entries in the course of business
8. Entries in official records
9. Commercial lists
10. Learned treatises
11. Testimony or deposition at a former trial
Dying Declarations
*must be impending, near, and certain.
Declaration about pedigree
*The declaration about pedigree may be received in evidence if the relationship
is shown by evidence other than the declaration. The word pedigree includes relat
ionship, family genealogy, birth, marriage, death, the dates when and the places
where these facts occurred, and the names of the relatives. It also embraces fa
cts of family history intimately connected with pedigree.
Entries in the course of business.
Elements:
a) Entries were made at, or near the time of the transactions
b) Such entries were made in the regular course of business
c) The person making the entries was in a position to know the facts state
d in the entries.
d) The person making the entries did so in a position to know the facts sta
ted in the entries
e) The person making the entries did so in his professional capacity, or in
the performance of duty and in the regular course of business
f) The person making the entry is now dead or unable to testify.

Declarations against Interest

Ex. A statement by the debtor before he died that he owes the creditor a sum of
money, or an oral acknowledgment by the principal that he received the money pre
viously entrusted to his agent, are clear declarations against the interest of t
he person making it. Note that declaration against interest made by the decease
d, or by one unable to testify, is admissible even against the declarant s success
ors in interest or even against third person.
Common reputation
While common reputation in the community may establish a matter of public or gen
eral interest, marriage or moral character, it CANNOT establish pedigree. This i
s established by reputation in the family and not in the community.
Commercial Lists and the Like
Must be made by persons engaged in that occupation and are generally used and re
lied upon by them and those lists and reports are published.
Learned Treaties.
History books, published finding of scientists fall within this exception IF the
subject testifies to the expertise of the writer of if the court takes judicial
notice of such fact.
Testimony or Deposition at a Former Proceeding.
The testimony is one given in a former case or proceeding or administrative, inv
olving the same parties and the same subject matter. The testimony was given by
one who is now dead or unable to testify. Said testimony may be given in evidenc
e against the adverse party provided the latter had the opportunity to cross-exa
mine the witness who gave the previous testimony.

Waiver
The rules of evidence may be waived. The rules are established for the protectio
n of the parties. Except if the rule waived by the parties has been established
by law on grounds of public policy.

Matters need NOT be proved (ISA-JP)

1) Immaterial allegations
2) Facts admitted or not denied provided they have been sufficiently alleg
ed (Rule 8)
3) Agreed and Admitted facts
4) Facts subject to Judicial Notice
5) Facts legally Presumed
Section 4. JUDICIAL ADMISSION is and admission, verbal or written, made by a par
ty in the course of the proceedings.
Elements
1) The same must be made by a party to the case
2) The admission must be made in the course of the proceedings in the same
case, and
3) There is no particular form for an admission, it may either be written o
r verbal.
Judicial Admissions may be made in
1) Pleadings filed by the parties,
2) In the course of trial either verbal or written manifestations or stipul
ations
3) In other stages of judicial proceedings as in the pre trial of the case
4) Admissions obtained through depositions, written interrogatories or requ
ests for admissions.
Judicial admissions can be made by either a party or counsel.
Judicial admission may be contradicted only when it is shown that
1. It was made through palpable mistake or 2. That no such admission was made.
Remedy of a party who gave a judicial admission:
In case of written judicial admission motion to withdraw the pleadings, motion,
or other written instrument containing such admission.
Judicial admissions are always conclusive upon the admitter and do not require f
ormal offer as evidence, unlike in the case of extra-judicial admissions.
Rule on dismissed pleadings
Admissions made in pleadings that have been dismissed are merely extrajudicial a
dmission.
Admissions in civil cases
Admissions in criminal cases
Admissions in a pleading which had been withdrawn or superseded by and amended p
leading are considered extra judicial admission
Admissions during arraignment may be withdrawn at any time before the judgment o
f conviction becomes final, but such plea of guilty later withdrawn is not admis
sible in evidence againt the accused who made the plea.
It is not even considered an extra judicial admission

Disqualification by reason of Marriage (sec. 22)

Disqualification by reason of Marital privilege (sec. 24 (a)
Can be invoke only if one of the spouses is a party to the action
Can be claimed whether or not the other spouse is a party to the action
Applies only if the marriage is existing at the time the testimony is offered
Can be claimed even after the marriage is dissolved
Constitutes a total prohibition for or against the spouse of the witness
Applies only to confidential communications between the spouses
The objection would be raisedon the ground of marriage. The married witness woul
d not be allowed to take the stand at all because of the disqualification. Even
if the testimony is for or against the objecting spouse, the spouse-witness cann
ot testify.
The married person is on the stand but the objection of privilege is raised when
confidential marital communication is inquired into.
Disqualification by reason of marriage (spousal immunity)
Take note of the ff.
Judicial admissions vs. Extra-judicial admissions
Competence vs Relevance
Best Evidence Rule
Real Evidence definition (replica offered as evidence)
Parol evidence would not be objected if the ambiguity was put in issue in the pl
eadings
Laying the basis for the offer of a photocopy of a contract. Originals
Expert testimony of a promissory note
Credibility defined refers to worthiness of belief.
Chain of custody
When may an ordinary witness testify as to his opinion?
When may parol evidence be allowed?
How do you lay the basis for introduction of secondary evidence when a) original
is lost b) ht original is in the custdy of the adverse party.
How to impeach testimony of a witness, definition