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Pelaez Moot Court - Evidence Transcript Team 2015-2016


PRINCIPLES) Conversation bet 2 criminals discussing a crime, without
consent of parties to the conversation, the police tapped their
I. PRELIMINARY MATTERS phones in violation of the Anti-Wiretapping Act, their voices
can be heard discussing the last details of the crime, its true,
A. Evidence as defined by the Wevised Wules on Evidence (like Pres. Arroyo talking to Garcillano, who would mistake the
fact that it was really Arroyo and Garcillano talking of an
Rule 128 election offense) but because of violation of the Anti-
Section 1. Evidence defined. Evidence is the means, sanctioned by Wiretapping Act, it may not be admitted and considered by the
these rules, of ascertaining in a judicial proceeding the truth court in a court proceeding
respecting a matter of fact.
All these emphasize the requirement that for evidence to
B. Evidence and Proof be considered as such, it must be sanctioned, or to put it in a
different light, it must not be excluded specifically by the Rules,
1. Evidence should be distinguished from proof the Constitution or any special law.
Evidence Proof
- A means, a tool to an - The end result of evidence 3. Evidence, by definition, only applies to judicial
end - Conviction or persuasion formed in proceedings.
- A means to establish the mind of a judge because of - Meaning court proceedings
proof evidence
- What establishes or - The conviction, the perception that TAKE NOTE: But not all are governed by the Rules on Evidence,
achieves proof; if your decides the case whether for or because ROC, Rule 1,
evidence passes the against the party formed after Section 4. In what case not applicable. These Rules shall not
test of admissibility, appreciating the means, the apply to election cases, land registration, cadastral,
weight and sufficiency, evidence naturalization and insolvency proceedings, and other cases
rest assured it will not herein provided for, except by analogy or in a suppletory
produce the desired character and whenever practicable and convenient.
These proceedings are actually judicial in nature but the ROC do
2. Not all sources of information are considered evidence not strictly apply by express provision of the Rules.
because evidence is precisely a source of information,
knowledge, to be used by the court in disposing of the Rules on Evidence applied to Non-judicial Proceedings
issue What about non-judicial proceedings like administrative
proceedings, proceedings before quasi-judicial or quasi-
Only sources of information which are legislative bodies, those before various government agencies
sanctioned by the ROC, meaning a source of information like SSS, NLRC, Pollution Adjudication Board, DARAB, etc.? They
not excluded by the Rules (inadmissible), such as: also have their own proceedings.
Those before the Office of the Public Prosecutor where
Chismis you file your complaint, criminal case, for preliminary
This could be a very interesting, exciting source of investigation, also a proceeding. What rules of procedure,
information; can trigger a revolution; can destroy relationships, specifically on evidence, govern the proceedings before these
family; powerful source but under Rules, not sanctioned, cant non-judicial agencies? Since the rules on evidence dont strictly
be admitted for court proceedings, specifically excluded by apply, their own rules of procedure apply in their own
hearsay evidence rule as it is information provided by someone proceedings. These agencies have their own internal
who has no personal knowledge as to the truth or falsity of the procedures. But the rules on evidence may also apply to a
statement. certain extent by analogy or in a suppletory character
whenever practicable or convenient
Illustration when their rules are silent on the matter
Mr. Miralles bragging he was able to sleep with Ms. Yap when application of rules on evidence are not
last night, it was a very exciting, wild and wet night, and
contrary to their own rules
someone picked this up, Mr. P, who chismosa as SHE is,
when application of ROC would promote
spread the chismis like wildfire to everybody in the
but again application should be justified by convenience and
Coerced confession
Mr. Miralles accused of raping Ms. Cabardo; true that he
So primary rule: they are governed by their own prescribed
did and when he was arrested the police tortured him and so
he confessed to the truth of his involvement, he provided the
police with the gory details of the rape. Its true but because
info was obtained through force or torture prohibited under
the Constitution, excluded/not sanctioned by the Rules, it cant
be used as basis for any courts finding or resolution

Pelaez Moot Court - Evidence Transcript Team 2015-2016

Proceedings in Preliminary Investigation evidence is really excluded by the rules. The prosecutor should
only resolve the case on the basis of what is admissible.
Lets go to the proceedings before the Office of the
City/Provincial Prosecutor or the DOJ in cases undergoing The Estrada Doctrine
preliminary investigation. This has been an ever recurring issue. But theres a new development now which I think does not
look kindly at me. Theres the case of Sen. Jinggoy Estrada vs.
When you practice, its not uncommon for you to Office of the Ombudsman decided January 2015.
experience a resolution issued by a public prosecutor who
conducted the PI saying the defense interposed by the You remember the torrent of controversy generated by
respondent is evidentiary in nature which is best threshed out Napoles regarding the 10 billion PDAF dubbed as the mother of
in a full-blown trial on the merits. Thats their easiest way out. all scams. As an offshoot to this, so many senators were
If the investigator doesnt like you, he can always deliver a one- charged with plunder before the Office of the Ombudsman, one
knockout-punch against you by invoking that oft-repeated, of whom was Sen. Jinggoy Estrada.
over-abused resolution.
In the meantime, an Information is filed in court, a So two separate complaints for plunder were filed against
Warrant of Arrest is issued, and your client goes to jail. So even him and 18 other co-respondents under the charge of
if your defense is really valid and meritorious, the prosecutor conspiracy. Upon service of subpoena, Sen. Estrada through
can close his eyes and proceed with the case. In the meantime, counsel filed a counter-affidavit. The respondents were
your client detained, the trial in court proceeds, after years of represented by different lawyers. When Sen. Estrada learned
litigation, eventually, because you really have a good, valid and that some of his co-respondents, in their respective counter-
meritorious defense, your client gets acquitted. But at what affidavits, made some incriminating allegations against him, to
cost? Your client has been jailed for 5 years because your protect himself, he moved that he be furnished with copies of
defense is evidentiary in nature. those counter-affidavits for him to know and controvert if
That has always been my complaint before the OPP
because in practice, you cant be friends with everyone. If the ISSUE
prosecutor likes you, your face or your client, he would also But the Office of the Ombudsman denied his request
pass upon the merits of the defense and in the process apply prompting him to go to the Supreme Court where he said that
the rules on evidence. They would say that the evidence against denial of his request is a denial of his right to due process
the respondent is hearsay and therefore it cant be a basis for because, basic, whatever damaging evidence, allegations or
the finding of probable cause and thus it should be dismissed. statements against you, you should be given the fair
Good if thats the way the prosecutor resolves the case and opportunity to know, to confront and to respond; but how
youre the respondent; bad if youre the private complainant. If could Sen. Estrada do this if, in the first place, he is not given
you are the private complainant, always hammer the principle copies of the counter-affidavits filed by the other co-
that the defense is evidentiary and therefore it should be respondents?
threshed out in a full-blown trial on the merits. Let the court
decide the admissibility, the credibility. RULING

In other words, this reasoning common among And you know how the SC addressed this issue? It said
prosecutors is to the effect that evidentiary rules have no place Estrada was wrong, that under the ROC, particularly the rules
in preliminary investigation proceedings. Its the courts duty to on criminal procedure, and the Ombudsmans own rules of
determine the admissibility or the weight or sufficiency of procedure, the only right of the respondent is to be given a
evidence of the parties. Their (the prosecutors) only duty is to copy of complaint as well as the affidavits of witnesses or
determine probable cause, as if saying that the determination documents in support of the complaint. Theres nothing in the
of probable cause does not necessitate the application of the rules which says that a respondent is entitled to be given copies
rules on evidence. of the counter-affidavits of his co-respondents.

But take note that the OPP performs a dual function: when The SC went on to say that the only duty of a respondent
the prosecutor conducts PI, he assumes the duty of a judge. who files a counter-affidavit is to furnish the complainant with
Hes supposed to be neutral, not supposed to lawyer for either a copy of his counter-affidavit. Theres nothing in the rules that
of the parties because he is supposed to be a judicial officer in makes it the duty of a respondent to furnish his co-respondents
that context. He is expected to observe the cold neutrality of a with a copy of his own counter-affidavit. So the SC said Jinggoy
judge. Thats precisely the essence of PI. has no right to be furnished with copies of the counter-
affidavits of the other co-respondents, the only right he has is
I always have this notion that when the public prosecutor to be furnished a copy of the complaint and the supporting
performs his function as a judge in a PI proceeding, then the affidavits and documents, no more, no less.
rules on evidence should be applied in the performance of that
function and the determination of probable cause. So I always So there can be no violation of due process for not being
argue that the rules of hearsay evidence, res inter alios acta, furnished copies of the counter-affidavits of the respondents
parole evidence, all these rules provided for under the ROC or because the rules, in the first place, do not give such right.
the rules on evidence, take effect in a PI proceeding. So the
prosecutors cannot turn their backs or close their eyes if the Thats not so relevant for purposes of evidence; thats
relevant in your criminal procedure.
Pelaez Moot Court - Evidence Transcript Team 2015-2016

context of legal truth, so long as you do not admit it, you are
Because of the denial of the Court for Jinggoy to be innocent because the evidence says you are not guilty.
furnished copies with the counter affidavits of the other
eighteen respondents, Jinggoy argued: if you dont furnish me 5. Respecting a Matter of Fact
copies with the affidavits that contain incriminating or
damaging allegations against me, it should not be used against Litigation is a contest of facts. Evidence is important
me or prejudice me. I was not given an opportunity to
because they are issues of facts. The relevance of evidence comes
controvert it, the affidavits are hearsay. It is basic that if an
from factual issues, not legal issues which are solved by the court
affidavit of the party against who m it is offered is not given the
opportunity to confront and cross examine the affidavit, thats without the need of evidence.
In every litigation, there are at least two versions. The
But the Supreme Court said: For the second time you are initiating partys version and the defending partys version. At times,
wrong. For purposes of preliminary investigation, hearsay there is a third- the version: the courts version.
evidence may be a basis for a finding of probable cause. Unlike
in a judicial proceeding where hearsay is inadmissible and lacks It can happen that in a controversy, there is no factual
probative value. If objected to seasonably and timely, it may be issue.
admitted by the court but even if it is admitted by court due to The rules of civil procedure provides for the remedy if there is no
waiver, the court is not supposed to give it credence. It is factual issue involved:
completely unreliable.
Judgment on the pleadings or Summary judgment
But in this ruling of the Supreme Court, it makes the
difference between arrest and liberty. Supreme Court said that
for the purpose of determining probable cause in a preliminary It allows the court to render judgment without having to
investigation proceeding, what is only required is opinion and undergo trial where evidence is presented. The pertinent law is
reasonable belief that a crime may have been committed and applied and judgment is rendered because there is no more genuine
respondent is probably guilty thereof. Any finding of probable issue of facts.
cause is temporary in character because the next logical step is
a case will be filed in court and trial ensues. During the trial, the Q: When is there an issue of fact?
court will determine if the accused is guilty beyond reasonable A: The allegation of one party is DENIED by the other party.
doubt. It is the temporary character of the finding of probable
cause that justifies this ruling of the Supreme Court. RULES OF Q: How is denial made?
Criminal case: By a plea of not guilty
Sirs opinion: This defeats the purpose of preliminary Civil case: Denial is done in two ways:
investigation because it is supposed to screen and separate the
unfounded cases from the meritorious ones. What would a. Specific denial- by stating that the allegations are not true.
prevent an unscrupulous complainant to file a case in the office truth being this one.
of the public prosecutor and flood it with hearsay evidence?
When there is finding a probable cause, a warrant of arrest will Illustration
be issued. The respondent goes to jail. Even if respondent is If plaintiff says that defendant owes him 1 million. Defendant denies
acquitted, damage has already been done. This is the sorry it by saying he does not owe plaintiff anything.
state of our justice system. If complaint is based on an actionable document, it must be
specifically denied under oath by saying the document (e.g.
Cases where the rules of evidence were NOT strictly applied: promissory note) is a forgery.
Reyes vs. CA
Bantolino vs. Coca-Cola Bottlers Philippine Inc.
b. Lack of knowledge sufficient to form a belief as to the truth or
Ong Chia vs. Republic of the Philippines
falsity of the allegation
Sasan vs. NLRC
There are as many issues as allegations are denied by the
4. Truth
party. There is always a main issue but there are sub-issues.
Truth here is not God-given. This is mans version of truth.
C. Factum Probandum and Factum Probans
Universal truth or Moral truth-
The truth when a statement coincides with reality. If you When we talk about factual issues, it signifies a relation
cheat on your girlfriend or your boyfriend, that is the Truth. between two facts: Factum Probandum and Factum Probans

Legal Truth Factum Probandum: ULTIMATE FACT to be proved. It is proved by

That which the evidence says it is. Even if you are indeed employing factum probans
morally guilty because you actually and in reality cheated on your
girlfriend as in fact you were caught kissing with the other. But in the
Pelaez Moot Court - Evidence Transcript Team 2015-2016

Factum Probans: EVIDENTIARY FACTS- the material evidence used in Illustration

establishing factum probandum The testimony of an eyewitness who directly saw the fact of killing
the victim (i.e. I saw X stab Y to death here, this proves the fact
Illustration in issue where it is X who killed Y and that there is no need for any
In an action for collection of sums of money, it is alleged other evidence)
that defendant borrowed money from plaintiff in the amount of
100K, promising to pay in three months with interest. But despite Circumstantial Evidence
lapse of the time and repeated demands, defendant failed to pay. This can also prove a fact in issue but, only indirectly because it
That is the ultimate fact which is enough in preparing your needs inference from another set of facts such that, without these
complaint. But to prove your cause of action, you need the factum other facts, this canot prove the fact in issue
probans to substantiate your factum probandum. During the trial,
present evidentiary facts such as the testimony of a witness, There are various forms/classifications:
promissory notes, demand letters, etc.
i. Antecedent
GOMEZ vs. GOMEZ These are circumstances that occurred or existed before the
incident, which is the matter at issue in the case
Consuelo had two brothers- Angel and Ariston Sr. Ariston Sr. has Examples:
three children. Angel has one. Consuelo passed away. The heirs Motive:
scrambled for a share of her estate. It was discovered that Consuelo
purportedly executed two separate deeds of donation over some Illustration
properties in favor of the children of her brother Ariston Sr. But Xs motive in killing Y is a circumstantial evidence to prove
Angels son got nothing. Feeling left out in the estate of Consuela, that he killed Y BUT, motive alone will not be sufficient as
the child of Angel file d a case in court, claiming that the deeds were you need to establish another fact. Say for example, you
forgeries. need to establish that a day before the killing, X and Y had
an altercation and X threatened to kill Y. Thus, from these
He theorized that the signature of Consuelo was genuine in the established fact of a heated altercation, you could
deeds but he alleged that these documents were signed in blank and establish the fact the antecedent circumstantial evidence
the body of the donation was intercalated on the document later on. of motive, which could be relevant to prove that X indeed
That is the factum probandum of the plaintiff. It was according to killed Y. Conversely, without proff of that alleged violent
him a forgery. altercation between X and Y, motive will not be
As for his factum probans, he adverted to a fact that the donors tax enough/relevant
was purportedly paid after the death of Consuelo, how could
Consuelo have paid the donors tax after her death? The document Moral Character of the accused:
must be falsified.
Supreme Court said: Factum probans is insufficient to prove factum There was a case of rape and there was no actual witness
probandum. of the commission of the crime but along the
neighborhood, Mr. Miralles is known to be a serial rapist.
Factum Probandum is forgery. In the past, he was even convicted of acts of lusciousness,
Factum Probans is the fact that the donors tax was paid after the child abuse, adultery, and rape. The fact the he is known
death. to be a monstrous sexual offender is moral character, BUT
SC eventually held that the payment of the tax after the death was such does not directly prove that he was the one who
not established but assuming that it can be established, it does not raped the victim.
necessarily follow that the deeds of donation were falsified. As a
matter of fact, one of the witnesses testified that the donors tax ii. Contemporaneous
was paid in the form of a check and such check was issued by Facts/ circumstance that existed or occurred at the same time with
Consuelo during her lifetime. It was only delivered to BIR for the incident
payment after the death. Even if it can be established the check was
delivered to the BIR after the death, it does not prove forgery. Examples:
Opportunity to commit the crime
D. Classification of Evidence
1. Direct Evidence and Circumstantial Evidence In a case of murder and someone saw Mr. Miralles running
away from the crime scene. This is contemporaneous
Direct Evidence circumstantial evidence because he was at the crime scene
Evidence that directly proves the fact in issue without the need for around the time that the incident happened. This can be
an inference from the other established facts admissible that indeed, Mr. Miralles killed the victim

Pelaez Moot Court - Evidence Transcript Team 2015-2016

Incompatibility forgotten that such facts exist. In other words, when someone says
that something did not happen, its possible that something really
Illustration happened but the witness just forgot about it. On the other hand, it
Mr. Miralles is charged with rape and that the victim would also be impossible for a witness to remember something that
claimed that it was a violent rape and that she suffered did not exist. Thus, if a witness testifies/affirms that a certain fact
multiple lacerations. With this, he can always prove that exists, he would thus be compelled to provide certain details of the
he is impotent, he could not have committed such crime event which would be very difficult to concoct. Thus, when a witness
as described by the victim asserts that an event happened, in the order of things, the
probability of it being true is higher than one who says that it did not
Alibi happen.

Illustration This is why when alibi is presented as a defense, it is rare

The killing took place in Cebu and that the accused can that the court would favor such, unless you have an airtight
prove that around the time that the crime was committed, evidence that say, it is very impossible for the accused to be at the
he was in Jolo, a hundred miles away. This does not crime scene at the same the crime happened
necessarily disprove that the accused is indeed guilty, but
it can indirectly prove that since he was a hundred miles 3. Corroborative and Cumulative Evidence
away at the time the crime happened, he could not have
committed the crime Corroborative Evidence
An additional evidence, of different kind/nature BUT tending to
iii. Subsequent prove the same point.
Facts or circumstances that occurred after the happening of the
event which is the subject at issue in the case Illustration
In a crime of rape, the testimony of the victim (testimonial evidence)
Examples: may be corroborated by the testimony of the attending physician
Flight (expert/scientific evidence) that there was vaginal injury/laceration.

Illustration Here, the testimonial evidence of the victim and the scientific/expert
If after the commission of the crime, the accused suddenly evidence of the attending physician are different kinds/nature of
left the country. The Supreme Court has said that, the evidence but they tend to prove the same fact that the crime of rape
guilty flees even if no one pursues him, but the innocent is happened
as bold as the lion.
Cumulative Evidence
Fingerprints lifted at the crime Also an additional evidence, BUT, they are of the same nature/kind
Footprints as with the other evidence earlier presented
Presence of nitrates in the body of the suspect
When the suspect left the condom in a case of rape and Illustration
the condom perfectly fits In a murder case, there were 5 witnesses who saw the actual killing,
the presentation of the 1st witness and then of the others are the
2. Negative and Positive Evidence same eyewitness accountsso the same nature tending to prove
the same fact of murder
Positive Evidence
It is positive when a witness asserts that a certain set of facts exists Take Note that there may be instances also that you may
or that a certain event took place be forced to dispense with your additional evidence priving the
same point, especially if the judge doesnt want to prolong the case.
The witness testifies that: I saw Y stab X. Corroborative evidence, do not dispense with
Where supposing, you both have cumulative and
Negative Evidence corroborative evidence, as a matter of practiceyou should not
When a witness states that a certain set of facts do not exist or that dispense with corroborative evidence because this is evidence which
a certain event did not happen is different in kind than the one already presented beforehand. Such
that, altogether, your evidence is stronger as there are different
Take note: between positive and negative evidence, all kinds of evidences from different perspectives (say the testimony of
things being equal, positive evidence is more favored by the court. the victim and the report of the attending physician- taken together
Thus, the one who asserts is favored than the one who denies. would be stronger).

The Supreme Court has reasoned out that: If a witness Cumulative evidence, dispensable
says that a certain set of facts do not exist or that a certain event On the other hand, cumulative evidence, so long as the
didnt take place, it is possible that the witness may just have evidence you have is credible, they do not really add value to the

Pelaez Moot Court - Evidence Transcript Team 2015-2016

evidence already presented because they are just of the same kind. prove that the driver is indeed at fault? One is maybe the drive was
Such that, the testimony of one witness is just as good as the drunk, so you need now to prove that he was drunk, you present the
testimony of the other proving the same fact. It is not the quantity device that can test the presence of alcohol in his system, witnesses
BUT, what matters is the quality of your evidence. So, example, if to prove that few minutes before the accident the driver attended
you have 3 available witnesses with the same testimonies, you can the party and consumed bottles of beer.
dispense of the other 2 and present just 1. But, never dispense with
corroborative evidence, it will weaken your case Question, is evidence that the drive was drunk at the time
of the accident relevant? Does the fact of his being drunk have any
4. Prima Facie and Conclusive Evidence relation to the issue of whether or not he was negligent? To answer
this you resort to logic. Is it logical to say that a drunk driver is likely
Prima Facie Evidence to be negligent? Logic and human experience would tell us yes, if the
This is evidence which, standing alone is sufficient, UNLESS answer is yes then the evidence of him being drunk is relevant
controverted by a contrary evidence. because it has a relation to the fact in issue as to induce belief in its
existence or non-existence.
This is enough if not controverted.
b. Material Evidence
Illustration: It is an evidence to prove a fact in issue. In other words if the
In a collection suit, the testimony of the plaintiff who claims that, on evidence, if the fact sought to be established by the evidence is an
a said date, the defendant borrowed him money and executed a issue in the case that evidence is material. Conversely if the
promissory note.this type evidence, allowed to stand evidence is presented to prove a fact which is not an issue to the
uncontroverted would be sufficient to prove that indeed, the case is immaterial.
defendant is indebted to the plaintiff
Test of Materiality
Conclusive Evidence What is the test for materiality? It is substantive law. You
Something that cannot be controverted/ something that does not look at the law if that fact is an issue. Or if not the law, the rules of
allow a contrary evidence pleadings, is it an issue in the case based on the pleadings of the
The evidence of non-paternity established by DNA test. Illustrations
Thus, in a paternity suit where the issue of paternity is resolved in a
DNA test and such yielded a negative result. Then this negative Prosecution for statutory rape.
result is a conclusive evidence of non-paternity and that this Mr. Miralles testifies that it was a consensual sex between him and a
forecloses the introduction of any contrary evidence. grade 4 girl. You can always object to the testimony of Miralles
because substantive law has it that in statutory rape consent is not
5. Relevant, Material, and Competent Evidence an issue. You can say objection your honor, that evidence is
a. Relevant Evidence
Whats a relevant evidence? An evidence is relevant if it induces Prosection for BP 22
belief as to its existence or non-existence. There must be a The gravamen of the offense is the issuance of check which is not
relationship between the two. The evidence must be related to the sufficiently funded. The circumstances of issuing a check is not
proposition sought to be established. In such a way that it may material whether the check was issued for purposes of
prove or disprove a fact in issue. accommodation or with/without consideration. What is punished is
the fact of issuance even if it is not funded. Now if prosecuted with
Test of Relevancy BP 22 and his defense he testifies that it was with no consideration
What is the test of relevancy? It is logic, common-sense because it was issued as security for the loan. You can always object.
and human experience. The test there is, is it logical to suppose that The purpose of the issuance is not material so long as issuance is
evidence X is equal to Fact Y? Is it in accordance with common sense established and the fact that it was unfunded.
that evidence X equals fact Y. Or Is it in accordance with human
experience that evidence X equals Fact Y? Its always about Now by their respective concepts, it is obvious that
reasoning. relevance and materiality are different evidentiary concepts. They
are independent from each other, some authors suggest that there
Illustration are evidences which are considered as relevant but immaterial /
In a prosecution for reckless imprudence resulting in material but irrelevant.
homicide arising from a vehicular accident. Whats the issue there?
Whether or not the accused is guilty of fault or negligence causing Relevant but Immaterial.
damage to the victim. Its about the existence or non-existence of In a complaint for sum of money, based on actionable
negligence on the part of the accused. document i.e. the promissory note. Under the Civil procedure, the
Thats the proposition sought to be established that the defendant is required to specifically deny under oath the
factum probandum. Now what would be your factum probans to genuineness and due execution of the note if that is his defense.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

Failure to deny under oath results in an implied admission of the evidence is immaterial, you object to the ADMISSION of evidence on
genuineness and due execution of the note. Whats the effect? Any the ground that it is immaterial, or better still, on the ground that it
defense that is inconsistent with the genuineness and due execution is irrelevant, in this context it is the same. So that is how to reconcile
is not allowed. the concept of relevancy and materiality vis--vis the rules on
Because it ceases to be an issue so during the trial the admissibility. You might wonder there that materiality is not
defendant in his answer failed to deny under oath, in his answer he mentioned there as a component of admissibility.
stated the note was a forgery. So there was no valid effective denial
so implied admission. During the trial, the defendant may not be For cases illustrating the principle of relevancy, read Lopez
allowed to present an evidence say for example an NBI document vs. Heesen and State of Missouri vs. Bull. These two cases
examiner testifying that the signature of the promissory note is a demonstrate the principle of relevancy.
forgery. Because forgery is not an issue when there was failure to
deny under oath. LOPEZ VS. HEESEN
Forgery is relevant because it tends to prove the allegation
of a loan. So for purposes of the issue of whether or not the FACTS
defendant is indebted to the plaintiff is relevant evidence. But it may This is about the gun, the hunting rifle where a hunter went to
be objected to because it is immaterial because by the rules on the hunting and it was claimed that the rifle suddenly discharged hitting
pleadings whatever is admitted may not be controverted. Mr. Lopez. So Mr. Lopez filed a suit against the hunter and later
impleaded the manufacturer of the rifle. It was claimed that the
Material but Irrelevant safety device of the rifle is defective because it suddenly moved
Mr. Miralles is charged with Robbery, the prosecution from safety to fire. In support of the defense of the gun
theorizes that Mr. Miralles is very poor and his poverty is the manufacturer that the design of the safety device was not defective,
motivating factor that drove him to robbery. Mr. Miralles denied they tried to present the testimony of witnesses to prove the
that he is impoverished. He had enough daw, because for him life is reputation of two companies. One company was the manufacturer
so simple. Here comes the prosecution presents the friend of Mr. of the device itself. The other company was the manufacturer of
Miralles who will testify as to his financial state of being poor. If similar guns that used the same safety device. The collective
Miralles denies this, then it becomes a factual issue. But is it purpose for introducing the evidence was established that this was
relevant? We have to test the admissibility of this evidence by the an isolated case. These companies were never sued at any time
parameters of relevancy. involving complaint of defective safety device.
So youd ask is it logical to say that the fact he is poor he
must be guilty of robbery. Is it common sense or consistent with ISSUE
human nature that a poor man is driven to commit robbery. The Whether or not to prove the reputation of the manufacturer of the
answer may be yes or no depending on the appreciation of the safety device and the manufacturer of similar guns was relevant and
judge. therefore admissible.

Q: In our jurisdiction, what are the requisites of admissibility of RULING

evidence? The Supreme Court there ruled that the evidence was relevant. It
A: Under our own ROC, there are only 2 requisites : 1. Relevancy 2. can prove that there are no other similar complaints at any other
time is logical. To say that the design of the safety device is not
Competency (not excluded by the rules or laws). defective otherwise they would have been sued for similar
Conspicuous by its absence is materiality of evidence. complaints. LOGIC!

Does it mean therefore, so long as it is relevant or STATE OF MISSOURI VS. BALL

competent even if it is immaterial it is admissible? But you may have
witnessed the impeachment proceedings where lawyers object to FACTS
the relevancy and materiality of evidence as if equating one for the This is about a robbery of a jewelry store. 3 weeks after the robbery,
other. one of the suspects got arrested and during the arrest some items
were recovered and among which were some cash from the pocket
So whats the rule in the Philippines? Justice Hererra in his of Mr. Ball. The prosecution theorized that cash recovered from Mr.
book is of the mind that the concept of relevancy has two Ball were taken from the robbery.
components: (1) Materiality and (2) Probative value
IOW, for evidence to be relevant it has to be material and It was claimed that Mr. Ball was recently released from penitentiary
has probative value. Material if it is directed to prove a fact in issue. and therefore could not have earned income from a legitimate
Probative value means that it has a relation to the fact in issue as to profession other than robbery. But the prosecution was not able to
induce belief the existence or non-existence. prove that the money really came from the jewelry store.

In the Philippines , materiality is subsumed in the context RULING

of relevancy that is why in our rules the only require mentioned The Supreme Court said it was not relevant. The presence of cash in
there is relevancy and competency. So, for practical purposes, if the the pocket of Mr. Ball had no such relation to the fact in issue of

Pelaez Moot Court - Evidence Transcript Team 2015-2016

whether or not he was guilty of robbery because of the lack of credit. The court will not rely on it. The court will not believe in it
connection. It does not follow that just the fact that he had some and therefore the court is unlikely to come up with a finding of fact
cash in his pocket, it doesnt necessarily follow that he was the one on the basis of the testimony of the insaneof the witness who is
responsible for the recent robbery. There was no evidence that the insane at the time of the incident.
same cash found in his pocket were the very same cash from the Admissible but lacks weight. Meaning, it does not
jewelry store. This case demonstrates a situation where the persuade. It does not convince the judge. So if the witness claims
evidence is NOT relevant as opposed to Lopez vs. Heesen. that he saw Mr. Miralles rape Ms. Cabardo, that's admissible. But
whether or not the judge will convict Mr. Miralles on the basis of the
testimony of the witness who was insane at the time he supposedly
Q: How does evidence serve the purpose of ascertaining truth? witnessed the rape, the judge under normal circumstances unless
A: Evidence serve its purpose if it passes through the test of the judge is more insane than the witness, will not give it any
admissibility and sufficiencyweight of sufficiency. credence.

Weight of Sufficiency Or suppose the witness is the wife of the accused. The
Admissibility has something to do with being relevant and wife is testifying in favor of the husband. Under the Marital
competent. Therefore, weight of sufficiency is different. What do Disqualification Rule, the wife may not testify in favor of the
you achieve regarding the proponent of evidence? What do you husband unless the husband consents. Assuming the husband
achieve if your evidence is admitted because it passed through the consents because his wife is his star witness. Under the Marital
test of relevancy and competency? As a proponent, theres only a Disqualification rule, the wife may be allowed to testify because the
little achievement that you get from your evidence being admitted. marital disqualification does not apply with the consent of the
But it doesnt stop there. husband being given.
So rule on admissibility, the testimony of the wife is
The admission of your evidence must be followed through admissible. But whether the court will believe or give credence to
by passing the test of weight and sufficiency otherwise its useless the testimony of the wife given her obvious bias in favor of the
because what you only achieved if the evidence is admitted because husband, thats another thing. Weight and sufficiency is another
it passed through the test of relevancy and competency is the fact thing. For evidence to serve its purpose, it must not only be
that the court will consider your evidence. Thats the most admissible but just as important it must be sufficient and credible. If
achievement that you can get there. You are assured that the court you have this, you have great chance at winning. If your evidence is
theoretically---theoretically the judge is supposed to consider the sufficient and credible, the judge is likely to give it credence.
evidence. Because if the evidence is excluded because it failed to
pass through the test of relevancy and competency, then the court is THREE KINDS OF ADMISSIBILITY
not even supposed to look at it. Its nothing! Its non-existing!
1. Multiple Admissibility
But if it is admitted, it is recognized that it is there. It is the The court shall not consider any evidence unless it is
obligation of the judge to consider. But being admissible is one formally offered. Not all objects or documents you submitted to the
thing. Being sufficient and credible is an entirely different thing. court may be considered by the court. Only evidence which are
Because the province of weight and sufficiency pertains to its formally offered that can be considered by the court. So it needs
tendency to persuade or convince. formal offer.
In the offer, the proponent MUST SPECIFY the purpose for
In other words, while your evidence is admissible because which the evidence is being offered. Because an evidence is
it is relevant and competent, the question that you need to answer admissible for one purpose but inadmissible for another purpose.
after it is whether it is sufficient to convince the judge. Is it sufficient You have to specify. The court will not be able to rule on the
to persuade the judge so the judge will make a finding on the basis admissibility of the evidence if you will not specify. If the evidence is
of the evidence? So thats the province of weight and sufficiency. offered but no specific purpose is indicated, the rule there is the
Weight and sufficiency pertains to the evidences capacity to court will not consider the evidence at all. So what has it got to do
convince and persuade. Even if it is admissible, it does not with Multiple admissibility? This was illustrated in the case of People
necessarily follow that the court will believe it. vs Yatco.

Illustration PEOPLE VS YATCO

Say for example, the testimony of an insane. The rule on
testimonial evidence is that so long as the witness is sane at the time FACTS
of the giving of testimony, he is qualified even if he was insane at This involved the prosecution of murder against three accused. Mr.
the time of the incident that he claimed that he had witnessed but if Consunji, Mr. Panganiban, and third unidentified accused. During
it is proven that at the time he is called to the stand, he is already the trial, the prosecution presented an NBI officer who testified that
sane, he has regained his sanity, he is qualified to testify. Meaning, Mr. Consunji made an extrajudicial confession when he was the one
his testimony is admissible. who assisted him. While the NBI officer was testifying, the counsel
But the problem there is on the weight and sufficiency for accused Panganiban objected on the ground that the confession
because no judge would give it credence. While the testimony is of Consunji in so far as it implicates Panganiban is inadmissible
allowed because it is not excluded, but the judge will never give it under the Res inter alios acta rule. It states that the right of a party

Pelaez Moot Court - Evidence Transcript Team 2015-2016

may not be prejudiced by the act, declaration or omission made by People vs. Yatco
another. So the confession of Consunji admitting their liability, their The reasoning or the justification for the trial court in
participation in the crime including Mr. Panganiban violates the Res excluding the extrajudicial confession of Consunji was its thinking
inter alios acta rule which is an exclusionary rule. So it was argued by that under the rules a confession made by a conspirator is not
the lawyer of Panganiban that in so far as Mr. Panganiban is admissible unless the conspiracy is established by evidence other
concerned, the extrajudicial confession of Mr. Consunji is not than the confession itself.
admissible. What the trial court should have done was to conditionally
admit the extrajudicial confession of Consunji subject to the
ISSUE condition that the prosecution should be able to establish the
The court on the other hand excluded the testimony of the NBI conspiracy between Consunji and Panganiban thereby giving the
officer in so far as the extrajudicial confession of Mr. Consunji but prosecution to establish the relevancy of the extrajudicial confession
not on the ground invoked by the counsel of Panganiban but on an of Consunji as against the other.
entirely different ground. The judge said that under the rule, the So, if you are the proponent. And your evidence is
confession of the conspirator is inadmissible unless conspiracy is objected to by the other party for failure to comply with relevancy,
established by evidence other than the confession itself. So the you can always apply/invoke conditional admissibility, and establish
testimony of the NBI officer in so far as it tries to establish the the connection later. Otherwise, as a consequence if you cannot
extrajudicial confession of Consunji was cleared out. This prompted establish the connection, your evidence will be stricken off.
the prosecutor to go to the Supreme Court.

It was error for the trial court to exclude the extrajudicial confession
of Mr. Consunji because under the principle of Multiple Admissibility 3. Curative admissibility
while the extrajudicial confession of Mr. Consunji is admissible in so Applies when the evidence otherwise inadmissible is erroneously
far as Panganiban is concerned under the res inter alios acta rule, admitted by the court against a party In this rule, the other party is
the same extrajudicial confession is admissible against the given the same opportunity or is given the chance to make use of a
confessant himself, Mr. Consunji. So it was error for the trial court to similar inadmissible evidence to counterbalance the damage cause
totally exclude the extrajudicial confession of Mr. Consunji. by the erroneous admission of the evidence of the party
But the very least, the court should have allowed, should have
accepted, should have admitted the extrajudicial confession of Mr. Illustrations
Consunji in so far as against himself although inadmissible as against Other party presented hearsay evidence and under the curative
Panganiban. In other words, this is the kind of evidence which is admissible rule, you are given the opportunity to present an equally
admissible for one purpose in so far Consuji, the admitter BUT inadmissible hearsay evidence to dispute the evidence presented by
inadmissible for another purpose in so far as Panganiban is the other party.
concerned. That illustrates the principle of Multiple Admissibility.

UNIWIDE SALES VS. TITAN-IKEDA Mr. M sued by his wife annulment ground is impotency
To prove the allegation, the wife testify that mr. M is
FACTS impotent together with the ex-girlfriend and both confessed that he
The testimony of a project engineer was admitted for purposes of is hopelessly impotent. Thus, both hearsay evidence, so it is
establishing the fact that the projects were completed but excluded inadmissible
in so far as to prove the fact that the completion was delayed. Suppose the court admitted such evidence, mr. M should
be given the chance to dispute it with an equally inadmissible
RULING hearsay evidence
The testimony of the project engineer was intended to prove the Thus, Mr. M can present the testimony of his other ex-
fact of completion. It was not offered to prove the fact of delay. So it girlfriends that he is a beast in bed. Also a hearsay evidence. Curing
cannot be used to establish the fact that there was delay. the damage cause by the wrongful admission of an inadmissible
But take note, this rule will apply only if Mr. M will object to the
2. Conditional Admissibility admission of the hearsay evidence when it was offered.
It is a rule of evidence which applies when the evidence is at first If he did not object, it will amount to waiver. Thus, the
appears to be irrelevant but the proponent intends to establish its otherwise inadmissible evidence wrongfully admitted will become
relevance eventually by presenting other evidence. Before the other admissible.
evidence is presented, the proponent is given the benefit of Thus, if there was failure to object, it will amount to
conditional admissibility subject to the condition that he should be waiver and the inadmissible evidence will become admissible.
able to establish the connection to make the evidence relevant. The Curative admissibility. Mr. M will not be allowed to present a
same principle is also applied in the case of People vs. Yatco. hearsay evidence. Since it his fault for not objecting.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

Note: the court cannot on its own exclude an evidence without the
objection of the party entitled to it. The rules of exclusion shall be 1. Under the Constitution
invoke by the party entitled to it. It is not self-executory. Right against unreasonable search and seizure
Right of privacy
Note: in essence, curative inadmissibility is fighting fire with fire. Miranda rights / Rights during custodial investigation
Since you allowed the other party to do that, you should also allow Right against self-incrimination
me to do it. As long as the evidence admitted was an inadmissible
As a rule, it can only be invoked against the State.
evidence, you can present other inadmissible evidence to remedy
All these exclusionary rules being rooted on the bill of
the damage done. The purpose is to remedy the damage cause of rights by the doctrine laid down in the cases of pp v marti, pp v
the admission of an inadmissible evidence. maqueda, waterous, pp v boncarawan can only be invoked against
the state or when the rights are alleged to be violated by the
c. Competency government or its agents.
Although you have the Zulueta v ca where the SC rendered
3 classifications of the rules of exclusions: pcs of evidence inadmissible on the ground that these were
obtained in violation of right to privacy of husband. Other than
1. Under the Constitution: zulueta, this doctrine has never been reiterated in any subsequent
a. Article 2 - Right against search and seizure evidence rulings. So as it is now the prevailing doctrine is the Marti doctrine.
obtained is inadmissible of any purpose in any Take Zulueta as an isolated case. It does not establish a
proceeding. precedent, to me. Otherwise, Marti and the other cases would have
been superceded by Zulueta. But take note that after Zulueta, what
b. Article 3 - Right of Privacy
was reiterated was Marti and not Zulueta.
c. Article 12 - Miranda Rights
Prevailing judicial sentiment: The bill of rights may only be
d. Article 17 - Right against self-incrimination
invoked against the State or its agents.

Evidence obtained in violation of these rules will be excluded for Effect if violator of the Bill of Rights is a private citizen.
being a fruit of poisonous tree. So that if the party alleged to have violated these rights is
a private citizen, do not apply the fruit of a poisonous tree doctrine.
Note: jurisprudence has it that these rights can only be invoked Meaning the evidence obtained is admissible. Because the fruit of
against the government. the poisonous tree doctrine applies only if this (violation of the bill
of rights) is invoked against the government. So the evidence
If the alleged party guilty of violating any of these rights is a obtained is admissible and the person whose rights have been
private person/entity and not the government, there is no violated can avail of some other remedies but not under the
occasion to invoke any of these rights. As such, there may be constitutional remedies. The party aggrieved may file for criminal or
other remedies, but not this. Sue for damages. civil action against the violator or offender or the person who
caused him injury or damage. But not on the context on the
constitutional law on the bill of rights.
Marti case: the rights under bill of rights can only be invoked
Along this context, the right against self-incrimination,
against state or against any state action. which is in the bill of rights, does not apply to proceedings initiated
by a private entity or company, like administrative disciplinary
Therefore, the conclusion is, proceedings involving private proceedings initiated by the employer against an erring employee.
parties. Like employee vs employer, admin proceedings, Consistent with the Marti Doctrine, the employee under
disciplinary proceedings, where the employee is alleged to have investigation may not invoke the right against self-incrimination.
committed a violation of the company rules, and found guilty,
the employee cannot invoke any of these rights. Since his Question: What about the right to due process when due process is
employer is a private person and not the government. also one those rights mentioned in the bill of rights?

If the employee is under investigation, (not initiated by Answer: There are two concepts of Due Process.
government) he cannot invoke the bill of rights since the 1. Constitutional
employer is a private entity. 2. Statutory something that exists based on law that requires due
2. Rules of Court
Statutory Due Process
a. Best evidence rule Often times required in the form of notice and hearing. In
b. Parole evidence rule the absence of a specific law, the only due process you can think of
c. Opinion rule is constitutional due process.
d. Character evidence rule In an administrative proceeding instituted by private
e. Authentication rule company or employer against an erring employee, the due process
f. Hearsay evidence rule mentioned is statutory specifically provided by the labor code.
g. Res Inter alius act Termination for cause must be with the compliance of procedural
due process, the twin requirement of notice and hearing.
If these rules apply, the evidence is deemed to be incompetent, thus While Marti ruling on due process under the bill of rights
excluded. cannot be invoked against the private company, what the employee
Pelaez Moot Court - Evidence Transcript Team 2015-2016

can invoke in this kind of administrative proceeding is the statutory Why? Miranda rights is required during this proceedings
due process under the Labor Code. because of the intimidating environment a person arrested is
The other rights in the Bill of rights in the absence of subjected to. Because of this intimidating environment, the law
statutory basis cannot be invoked against a private citizen. presumes that the suspect may not willingly and intelligently supply
information but incriminate himself. Thats the evil sought to be
Self-study: The Right against unreasonable search and seizure prevented by the Miranda rights. Because they are so pressured, the
especially the EXCEPTIONS! environment is so intimidating, they may be compelled to provide
Self-study: The exceptions in Judicial warrant. information against themselves. Thats the very evil sought to be
1. Search incident to lawful arrest avoided.
2. Plain view So that any information to be given by the suspect must be
3. Stop and frisk with the assistance of counsel who is supposed to explain the
4. Customs search consequences of any information the suspect may wish to give.
5. Search on Moving vehicles Regardless of the fact that the suspect is not being
6. Consented search interrogated, the fact is he is already being subjected to that
7. Checkpoint intimidating environment, the Miranda rights are already available
8. Searches conducted during emergency (Pp v De Gracia) to the suspect.

Rights during Custodial investigation or Miranda Rights Arrest, defined

1. Right to remain silent When is a person deemed to be arrested for purposes of
2. Right to counsel determining whether the Miranda Rights is already available?
3. Right to be informed of these two rights Arrest under rules on criminal procedure is the deprivation
of the persons liberty when he is restrained physically by the police.
Waiver That is the typical definition of an arrest.
The rights to remain silent and to counsel may be waived.
The waiver has to be in writing and with the assistance of a counsel. Invitation deemed part of custodial investigation
But the right to be informed of these rights cannot be But you have to understand this in the light of a Special
waived. Because without the third wight, aww.. right, the two other law: RA 7438?. Mere invitation by the police to a person for
first rights would be rendered useless. investigation is deemed custodial investigation.
So if there is a crime committed and the police invites you
Miranda rights, when applicable to come for the precinct for the purpose of shedding light in regard
You take note of the instances where Miranda rights may to the incident that the police is investigating even if you are not
be invoked. Not all instances of extrajudicial confession Miranda placed under arrest, under 7438, that is already custodial
rights are available. It is only when the person is under custodial investigation. Therefore any information incriminating to the you
investigation. obtained in violation of the Miranda rights is inadmissible.
So if a person voluntarily and wilfully confesses to a police In Pp v del Rosario, mere invitation in police investigation,
before he was placed into custody or arrested, or restrained of his thats the practice of the police, a guise in inviting the suspect. That
liberty, that is a voluntary extrajudicial confession. Miranda rights do has already been outlawed already in the sense that is already
not apply. So that even when he was not assisted by counsel, that considered custodial investigation. Therefore, it is incumbent upon
confession admissible. the police to observe the Miranda rights of the suspect under
So the CRITICAL FACTOR to consider is when the custody.
confession was made. If the confession was made when the person
is already placed in custody or restrained of his liberty in any Miranda rights available in Preliminary Investigation
significant way, the rights to custodial investigation commences. Another thing, the Miranda rights do not only apply in this
Therefore, any confession made even if voluntarily done without the typical investigation environment where the suspect is placed under
assistance of counsel cannot be admitted. arrest and interrogated by the police.
Miranda rights extend as to cover instances where the
Question: What about if the suspect is already placed in custody, suspect is brought to the court for purposes of preliminary
arrested, deprived of his freedom of action in a significant way, but investigation or hearing where the information against the suspect
he was not being interrogated by the police but he voluntarily has already been filed in court. Here the proceeding is being
confessed? initiated by the court or the prosecutor and not by the police
Custodial Investigation, defined In Pp v bongkingko, SC said the atmosphere in a
Custodial investigation has been defined as an preliminary investigation proceeding is no different in custodial
interrogation conducted by the police after placing the suspect into investigation conducted by the police. It is as intimidating
custody. atmosphere.
Two things have to be considered: the arrest (the placing So that the rights under Section 14 or the Miranda rights
of the suspect under custody) and the interrogation conducted. are also available during preliminary investigation. Any admission
So what if he was placed in custody but no interrogation and confession made by the suspect during preliminary investigation
was conducted and the suspect under custody offers to provide without compliance with the Miranda rights is not admissible.
incriminating information to the arresting officer. Most of the Even if the information has already been filed in court, any
authorities of the opinion that it doesnt matter if he was not confession should comply with the Miranda rights.
interrogated. The critical factor was the fact that he was placed So if he offers to confess to the crime, he should be
under custody. provided with counsel because an offer to confess is a waiver of his

Pelaez Moot Court - Evidence Transcript Team 2015-2016

right to remain silent. Waiver must be in writing and assistance of But if the question tends to ask whether the witness or the
counsel. Otherwise, inadmissible. party committed rape or murder, that is obviously incriminating.
Criminal liability meaning it is an existing criminal liability
Right against self-incrimination that may be imposed on the witness or party.
Confusion based on the recitation is on what kind of If the punishment of the said act has already been
proceedings the RASI may be invoked and when is a question prescribed or served, there is no more criminal liability. There is no
deemed incriminating. more danger of exposure to criminal liability.
What kind of proceedings where RASI may be invoked For example if the witness is asked if he was convicted of
criminal, civil, admin. So long these are initiated by the government crime in the past and the sentence of the offense has already been
whether by the court or any administrative body. So, any served, the witness may not refuse to disclose the fact of his prior
proceedings. conviction and fact of having already served the sentence because
Only difference depending on the kind of proceedings, there is a that no longer incriminating. There is no more criminal liability to
different rule on how to invoke RASI. speak of. The same rule applies in prescribed offenses.

RASI in Criminal Proceedings Waiver, not self-executing

In Criminal proceedings, it can be invoked immediately by The RASI is an exclusionary rule. Like all other exclusionary
the accused. In other words, the accused does not need to take the rules, it is not self-executing, therefore it must be invoked. Failure to
witness stand. The moment the prosecution calls the accused to invoke at the proper time constitutes a waiver.
take the stand, he can, right then and there, already object. Because In so far as the RASI, there is that specific kind of a waiver.
the obvious purpose by the prosecution of calling the accused to That is when the accused himself voluntarily takes the stand. He
take the stand is to incriminate himself. So because the purpose is so opens up himself to possible incriminating cross-examination
obvious, the rules says there is no need to wait for the incriminating questions. He cannot refuse to answer the question about the crime
questions. for which he is being prosecuted because he took the risk.
Parties and witnesses can invoke the RASI. But if he is an
ordinary witness, even in a criminal case, he can only invoke the Limitation
RASI when he is asked the incriminating question. If he is a witness BUT the waiver is limited only to the very crime for which
and at the same time the accused in a criminal case, he may refuse he is being prosecuted and as to which he is testifying.
altogether to take the witness stand. For example he is charged for murder, and in his defense
he takes the stand as a witness for himself. He said he was in Jolo
RASI in Civil and Administrative Proceedings when the crime was committed in Cebu. By taking the stand he
It is different when the right is invoked in Civil and opens up himself to possible incriminating cross-examination. He
Administrative proceedings. Here, the purpose of calling the person cannot refuse to answer. BUT if he is asked about another crime, for
against whom the case is filed is not always to incriminate (that is example the prosecutor would establish the fact of the killing of
the reasoning of the SC), and therefore it cannot be presumed that another victim, even he takes the stand the accused can still invoke
questions would be incriminating. The only way to determine it if the RASI because the waiver is only limited to the crime for which he
the question is incriminating is to wait for the question to be is charged.
propounded. Therefore, the respondent may not refuse to take the
stand when he is called. Otherwise it would be premature to invoke 2. Special Laws
the RASI. It is only when the incriminating question is propounded
that he/she may invoke the RASI. a. Ra 4200 Anti Wire Tapping Act (AWTA)
What is specifically prohibited here is the illegal recording,
Exception overhearing, interception of private communication without the
Except that if the administrative proceeding or civil consent of the parties to the communication.
proceeding partakes the nature of a criminal proceeding. Like in the While the law says private communication, obviously what
case Pascual v Board of Medical Examiners, Cabal v Capunan. While is covered here are spoken words. ORAL communication. And the
these are administrative proceedings, they partook the nature of device prohibited is the device that purposely records oral
criminal because of the penalty imposable should the respondent be conversation. Cable, dictagraph, dictaphone, and similar other
found guilty. In Pascual revocation of license. Cabal forfeiture of devices. The most common tape recorder.
property alleged to be illegally obtained. The recording of private conversation without the consent
The SC said these partakes the nature of a criminal of all the parties to the conversation makes it illegal under this law
proceeding. Therefore, the respondent can right then and there and any evidence obtained in violation is inadmissible.
invoke the RASI. He may not be forced to take the stand.
Otherwise, if the proceedings do not partake the nature of Applies to any person, even to parties of the conversation
a criminal, they can only invoke the RASI when the incriminating Take note that even if the one who secretly recorded the
question is asked. conversation is a party to the conversation, but the other party did
not consent, there is still a violation as ruled in Pp v Ramirez. Where
When is a question deemed to be incriminating? two parties argued and in the process of the conversation, one
If it tends to expose the party to criminal liability. What allegedly defamed the other which prompted the defamed party to
makes a question incriminating is the possible criminal liability that file for an action for damages. One of the pieces of evidence
may attach should the party be compelled to answer the introduced was the tape recorded altercation.
incriminating question. The SC said it violates the provisions of AWTA. The accused
In Civil and Admin, the principle does not apply because interposed the defense that the persons covered by the AWTA are
the liability that may be established is only civil in nature. Its not a persons who are not parties to the conversation. SC disagreed and
crime to incur obligations. said that even parties to the conversation who recorded the
Pelaez Moot Court - Evidence Transcript Team 2015-2016

conversation without the consent of the other party is covered by the surveillance whose communication is tapped or recorded is not
the prohibition. covered by the AWTA. Meaning, the recording is admissible even if
In Salcedo Ortanez it is where the SC applied the AWTA. done without the consent of the parties to the conversation.
The recorded conversation of the alleged paramour and wife which But the parameters governing the exception are so strict.
recording was made at the instance of the husband who had some Any surveillance conducted pursuant to Human Security Act requires
friends at the military. SC said violation of the AWTA. The recorded court order, not just by any court but by the CA upon proper
telephone conversation between the wife and alleged paramour is application and hearing.
Exceptions to Human Security Act
Devices covered by AWTA The provision of the Human Security Act that allows
The AWTA describes and enumerates the specific devices wiretapping does not apply to conversations between lawyers and
covered. Only those devices that fall under the category of clients, physicians and their patients, journalists and sources, and
Dictaphone, dictagraph and the like, applying the rule on iyot dem business correspondence.
(ejusdem) generis.
Gaanan v ca - The use of an extension telephone line does Human Security Act, a funny law
not fall in the category. These devices in the category are illegally In the effort of the government to balance State authority
installed. These are not normal part of the telecommunication and privacy, the came up with this funny law. Before any
system. Unlike in a telephone extension line which is accepted mode surveillance can be conducted, (surveillance is supposed to be
of extending telephone lines. Therefore, any conversation overheard secret) but under this law the police is required to notify the subject
by a third party using an extended telephone line is admissible. of the surveillance. Oh Mr Miralles, please be informed that you are
under surveillance. You are suspected to be a member of a terrorist
When is a conversation private? organization. How can you expect a positive result of a surveillance if
Not all conversations secretly recorded violate the AWTA. the terrorist is served prior notice. It is like a thief informing the
Only private conversations. When is it private? Should it only be victim that he is about to steal. The kind of Congress we have.
between 2 parties in bed in a private room?
The privacy of the communication does not solely depend Conversation not necessary two-way
on the place and the number of parties. Its on the purpose whether Conversation does not have to be two way. As long as one
the persons party to the conversation would not have proceeded in is speaking and the other is listening, it is a private conversation.
the conversation had they known that others are listening. Thats The test of exclusivity is whether the conversation is not
private. It doesnt matter if there are 3, 4 or 5 intended parties to intended to be heard by persons who are not parties to the
the conversation. conversation.
But if the conversation is given in a manner that it is
indiscriminately intended to everyone, that makes it a public When evidence obtained in violation of AWTA admissible
conversation. For example a candidate making a campaign speech in In AWTA, any evidence in violation is inadmissible against
a public plaza. the person whose right has been violated. But the recorded
In Pp v navaro, two journalists who decided a night of fun conversation is admissible to prove the violation committed by the
at the bar. Actually it is part of their job, but they took advantage of accused.
the information they got that this particular bar allow striptease. Its For example Mr. Miralles and his cohorts conversed over
a show late at night where dancers are said to perform necked and the telephone about the crime they just committed. Maybe they
true enough, to their ecstasy the dancers showed up on stage gangraped Ms. C, and few hours after Mr. Miralles called up his
dancing. One of the journalists started to take pictures of the show. cohorts and savoured the crime and bragged about how they did it.
It was at this time when the bouncer or I think the manager It was secretly tapped by a surveillance device. Their conversation
approached them and asked them to leave. An altercation ensued was captured vividly in the recording. Suppose Mr. Miralles and his
and the journalists are constrained to get out and proceeded to the cohorts are prosecuted for the rape, and as evidence for the crime
police station to report. the recorded conversation is presented in court. That is inadmissible
Unfortunately for them, obviously the police on duty was because it violates the AWTA.
in the pockets the owner of the bar. So, the journalist ended up Mr. Miralles may file a case against the police for the
being in a heated altercation with the police which unfortunately violation of the AWTA and the recorded conversation is admissible
resulted in the killing by the police of one of the journalist. against the police who violated the law.
Unknown to the parties, one of the journalists secretly The same principle applies with violation against right
recorded the altercation between the victim and the police. And against unreasonable search and seizure. The evidence obtained is
when the police was prosecuted for the death of the deceased, one inadmissible against the person whose right is violated. But it is
of the pieces of evidence introduced was the recorded altercation. admissible against the person who violated the right.
This was objected to by the defense invoking AWTA.
But the SC disagreed and said that the AWTA applies only Bar Question
if the conversation is private. Under the circumstances, the heated You distinguish this with the Human Security Act, because
altercation took place in a very public place, its a police station in the inadmissible character of the evidence obtained is absolute.
the presence of so many people. It is not a private conversation. Meaning, it is inadmissible against whose right has been violated
and the persons who violated the law. This came out of the bar.
Human Security Act, exception to AWTA
The AWTA does not apply if the recording or surveillance is Video recordings
done against judicially declared terrorist organizations or persons or Obviously, AWTA does not cover video recordings. While it
group of persons suspected to be terrorist under the provisions of can be argued that body language is conversation nonetheless, you
the Human Security Act. So, exceptions to AWTA, if the subject of make love conversation. Video recordings are covered by the Anti-
Pelaez Moot Court - Evidence Transcript Team 2015-2016

Voyeurism Act or the Dr. Hayden Kho Law. You should thank him for RSR GR: Sexual behaviour of victim or complainant inadmissible.
his antics. So video recording of sexual activity without the consent EXC. Relevant
of the parties is illegal. CER if character of the complainant is relevant and material.
There is no inconsistency.
Anti-Voyeurism Act
There are 2 acts punished. The (1) recording of any sex Child sexual abuse.
activity between persons and the (2) capturing of the private parts Rule on examination of child witness. In all prosecution of
of an individual. The private parts are specific: womans breast. Only alleged child sexual abuse, the following pieces of evidence are not
womans breast. Not men. Now, Mr. Miralles if he wants, he can admissible:
strip naked and you can feast on him and take pictures of his breast. 1. Evidence offered to prove that the victim engagnd in other sexual
That is not a violation of the AVA. Other parts are buttocks and conduct
sexual organs. 2. Evidence to prove the victims sexual predisposition

Reasonable expectation of privacy Exception

The person concerned whose sexual activity or private To prove the accused is not the source of the semen,
part has been recorded must have reasonable expectation of injury or other physical evidence.
If Ms. C, in the silence of her room, stripped naked. But Bank deposits
Mr. Miralles at the opposite window using a long range camera. There are 2 laws
(Meg: DSLR). Zoom. Captured the naked body of Ms. C. That violates
AVA because obviously Ms. C when she stripped naked in the silence 1. RA 1405
of her room has a reasonable expectation of privacy. But if you are This is an Act prohibiting disclosure or inquiry into bank deposits
at the beach strolling naked, topless and Mr. Miralles happened to These are deposits other than foreign.
be there with his long range camera, there is no violation of AVA
because there is no reasonable expectation of privacy in doing it in 2. Foreign Currency Deposit Act absolute confidentiality law.
a public place. Psb v senate impeachment tribunal disclosure not
So, the operative fact there is whether or not the photo or allowed because of the absolute confidentiality of the FCDA.
video is taken under circumstances where the person concerned has Salvacion v central bank SC made an exception. Purpose
a reasonable expectation of privacy. It is case-to-case basis. of FCDA is to encourage foreign investors to make our economy turn
around. The purpose is to protect investors. It applies to legitimate
Persons punished investors only. Not to transient persons. The accused is not entitled
The one punished is not only the one who captured or to protection because he is only a transient tourist.
took the photo. The one who reproduces and distributes is also
punished. There is only one exception under FCDA.
TN: Even if the taking of the photo or recording was done Written Consent of the depositor
with the consent of the person concerned. There is no violation. But
the reproduction and distribution of the photos is in violation of AVA Documentary stamp tax
if it is done without consent. Under the NIRC, any of the DST taxable documents
The consent must be per act basis because there are enumerated presented in court may only be admitted if DST is paid.
various acts punished there. Selling, circulation, distribution, you In other words, if you happen to offer in evidence a
look at the law. taxable document and you failed to comply with the documentary
stamp tax requirement, the court cannot altogether exclude the
Rape Shield Rule taxable document, what the court can do according to jurisprudence
It is provided under RA 8565. This is a law giving assistance and it to require the proponent to pay the DST. It is only when the
protection to rape victims. opponent despite the order of the court, refuses to comply with the
DST, then the court can exclude the taxable document from its
In any prosecution for rape, the evidence of the victims of past record.
sexual conduct or opinion or reputation of the victim of rape is Failure to comply with the DST makes taxable document
inadmissible in evidence. Except up to the extent that the court inadmissible but only if you offered it in evidence.
considers the evidence relevant and material for the case.
What are the common taxable documents?
Character Evidence Rule 1. Deed of Sale
Under the Character Evidence Rule, the accused in a 2. Mortgage
criminal case can always prove his good moral character if the 3. Insurance Policy
character is relevant or pertinent to offense involved in the case. 4. Shares of stocks
But the prosecution may not prove the accuseds bad 5. Credit
character. Exception during rebuttal. 6. Promissory Notes
7. Others (in the NIRC)
What about the good moral character of the complainant?
CER the bad mc of the complainant can always be proved Trial and Evidence
by the accused. Trial is a contest of facts and the court being the referee,
the arbiter of facts is supposed to determine whose version of the
Reconcile CER with Rape Shield Rule facts is to be believed or in some instances the court may come up
The inconsistency is more apparent than real.
Pelaez Moot Court - Evidence Transcript Team 2015-2016

with their own version of the facts and how do the courts do this? RULING
Through EVIDENCE. SC: Best Evidence Rule applies only if the subject matter is
However not all the times that facts need to be in contest which does not apply here. It was established that the
established by evidence. original was lost.
And it is not even necessary to present the photocopy or
3 INSTANCES WHERE EVIDENCE IS DISPENSED WITH: even the original because the fact that is sought to be established
1. Judicial Notice is the proper anatomical location of the left and the right kidneys
2. Judicial Admission which can be established without presenting documents because
3. Legal Presumption these are matters that the court can take judicial notice as this is in
accordance with the Laws of Nature.
Takes place when the matter in dispute is ought to be But distinguish this from the recent case of
known by the court or the judge by reason of the judges official
function like within the territory of Judicial Functions. DR. DE LA LLANA VS BIONG

Two (2) KINDS of Judicial Notice: FACTS

A doctor claimed that while she was driving her vehicle,
A. MANDATORY another vehicle bumped her from behind causing her to suffer the
Those 10 mentioned in sec 1 rule 129. In this, the court so called whiplash injury. Since the driver was a mere employee and
does not need evidence to establish the facts, the court is supposed no means to pay, so Dr De la Llana sued the employer herein Biong.
to take judicial notice. During trial, De la Llana testified about her injuries.

1. Existence and Territorial Extent of States (that the certain state RULING
exist and its territorial extent) SC: Against de la Llana. She failed to prove that the
2. Political History of States proximate cause of her injury was the negligence of the driver. She
3. Forms of Government testified as an ordinary witness, even if she is a doctor. The doctor
4. Symbols of Nationality who made the report did not testify. The court cannot take judicial
5. Admiralty and maritime courts notice that whiplash injury is caused by vehicular accidents. Courts
6. Laws of Nature have no expertise in the field of medicine.
7. Official Acts of branches of govt of Philippines
8. Measure of time WYCOCO VS CA (not sure sa spelling)
9. Philippine History and Constitution About just compensation of a property expropriated, no
10. Geographical Division judicial notice, it must be proved,

So, there is no need to present evidence that there are 24 B. DISCRETIONARY

hrs in a day, or that a law is passed by congress or that Lapulapu 1. Public Knowledge
killed Magellan. 2. Capable of unquestionable demonstration
If any of these issues is present in a given case, the parties 3. Ought to be known to judges by reason of their function
are not burdened to prove them because the court is supposed to
take judicial notice by reason of their judicial functions. HEARING IS REQUIRED.
So what happens if the judge is not personally aware of Purpose of the hearing is not intended to prove the facts within
one of those matters in rule 129? judicial notice but rather as to the
Then the court is burdened to make its own research. It
cannot burden the parties to find information. You can always PURPOSE
question on appeal by proving your own information. 1 purpose: PROPRIETY WON COURT SHOULD TAKE JUDICIAL
ATIENZA VS BOARD OF MEDICINE 2 purpose: to determine the specific tenor of the judicial notice.

FACTS While the court may take judicial notice, the specific tenor
This involves a patient who consulted a physician about still needs to be presented, Ex. Travel time, distance from USC
her non-functioning left kidney, upon examination the doctor AYALA
recommended the removal of her left kidney but what after the Tenor: you provide your own information and the court
surgical operation, it was the right functioning that was removed. can present its own information then you agree on the tenor.
(Icebreaker: story of sirs father)
So they filed a case against the doctor, malpractice was PEOPLE VS CABIGQUEZ
the cause of action. The plaintiffs presented photocopies of the xray
before the board of medicine. FACTS
Rape with Robbery. The culprits not satisfied with rape,
ISSUE they also took some items from the sari-sari store. They were
WON the photocopies are admissible? ordered to pay 10,000 civil liability but they argued that the
prosecution has no basis of the civil liability because no receipts
were presented.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

RULING Judicial because that is an admission made in another case in the

SC: Prices of common merchandise such as cigarette, salt, course of the proceeding in another case.
coffee appliances are matters that the court can take judicial notice Since it is no longer a judicial admission, it is now an
as these are matters within public knowledge and capable of extrajudicial admission. It needs to be offered in evidence. In order
unquestionable demonstration so no need to prove by official that the admission can be utilized in the second case, the
receipts their value. complainant in the second case should formally offer that
admission, the transcript of stenographic notes should be offered as
In cases involving rape, the SC would often say the court evidence in the second case because extrajudicial admission needs
finds that the testimony of the victim is credible. The court takes to be offered.
judicial notice that oftentimes in the countryside, women are not That is the distinction between admission made in the
likely to come forward with their tale of rape unless they believe course of the proceedings in the same case and made in the
that their accusation is true. Culture and Community. proceedings in another case. Two different legal scenarios.
It depends on which case the admission was made or
FOREIGN LAW, NO JUDICIAL NOTICE utilized. Utilize in the same case, no need for evidence, contrary
Take note: The court does not take judicial notice of a evidence is not supposed to be considered.
FOREIGN LAW. If the foreign law involved is not alleged or even if
alleged is not sufficiently proven, the court will have to apply the WHAT IS THE EFFECT OF A JUDICIAL ADMISSION?
The admission takes the place of evidence. If a fact is admitted by
RECORDS OF OTHER CASES IN SAME COURT AND JUDGE one party, the other party doesnt need to present evidence to
The court cannot take Judicial notice of the records of prove a fact already admitted.
another case even if that other case is filed or pending or decided by In a collection suit, the defendant admits the existence
the same court over the same judge. and genuineness of the promissory note, the plaintiff is no longer
So, if Mr. Miralles is charged with rape of Ms. Cabardo, the required to prove the genuineness and existence because it is
Judge was Ms. Yap convicted overwhelming evidence of rape, already admitted. Except admissions made in deposition
suppose the private complainant files a separate civil case, the same proceedings.
case was raffled and pending before Judge Yap. In the previous case,
a definitive finding was already made that Mr. Miralles was guilty of IN WHAT FORM THAT A JUDICIAL ADMISSION TAKES PLACE?
the rape and Ms. Yap dispense with trial and say I already decided Judicial admission may take place in the following instances
the first case, same story, guilty! Award damages, 1 million!
Judge Yap cannot do that because the rule is the Court 1. In pleadings filed by the party in the case, answered
cannot take judicial notice of another case even if that case is complaint pleadings.
pending, filed or decided by the same Judge.
2. Testimonies of the parties in course of the trial, Oral
2. JUDICIAL ADMISSION testimony, Manifestation made by lawyers in the course
Another instance where the fact is deemed established of the proceeding.
without the need of the introduction of evidence. A judicial The rule says admission made by a party but for purposes of the rule
admission is an admission written or oral made by a party in the on judicial admission, the lawyer is just an extension of a party. Any
course of the proceedings of the same case. If it is made in another admission made by the lawyer binds the agent, one and legal
case, not a judicial admission. personality. The lawyer is just an agent of the client. Coordination
So that if Mr. Miralles is prosecuted for rape in the first between the lawyer and the client is really indispensable. Never
case where he made an admission that there was really a sexual allow your lawyer to prepare pleadings without you reading the
intercourse except that it was consensual. Mr. Miralles was aquitted. facts. The law, you leave it to the lawyers but the facts, you should
Five years after, another civil case was filed and this time around, for be allowed to clear the facts before the lawyers file anything in court
recognition affiliation because the woman now claim that out of because that it judicial admission.
that incident, a baby was born so an action to compel Mr. Miralles Question: When the Judge says OFF The Record, can it be
to recognize the baby. considered extrajudicial? No. Off the record is supposed to be legally
In the course of that second case, for recognition non existent. That is the purpose of the Off the Record.
affiliation, the complainant would make use of the admission that he
made in the previous criminal case that there was really a sexual 3. Judicial admission may take place in deposition
intercourse. proceedings. The deposition where the deponent gives
Is that a judicial admission in so far as the second case is testimonies before the deposition officer. This is done
concern with the admission made in the course of a proceeding? outside of the court where the case is pending. This is still
If that admission is use in the same case where the part of the court proceedings made in the course of the
admission was made, it is Judicial. Meaning, in the first case of rape, proceedings of the same case.
if Mr. Miralles made an admission that there was a sexual If your witness is from Manila who could not come here in Cebu and
intercourse, he cannot prove otherwise any evidence that there was under our civil procedure, witnesses have the so-called viatory
no sexual intercourse should not be considered by the court because rights. If they are residing more than 100 kilometers away from the
that is a judicial admission, conclusive. trial, you cannot compel them to go to court by subpoena. If your
If that same admission is utilized not for the first case witness is based on Manila, you cannot compel him to come to Cebu
where the admission was made but for purposes of another case, under subpoena. The witness can refuse to come without incurring
this time in a civil case for Recognition, that is no longer considered liability because of the so-called viatory rights.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

Deposition there is that it cannot be controverted by the admitter and in case

What is your option? Your option is to take deposition in the admitter is able to present in evidence different from or
Manila. You choose a deposition officer who will act as a Judge. The inconsistent with his earlier admission, the court is not supposed to
testimonies will be given before the deposition officer, the parties consider the evidence even if that evidence is not objected to by the
are allowed to participate during the deposition taking. The adverse party.
proponent will ask question, the other party will also be allowed to
cross-examine. It is like a court hearing except that the one presiding ELAYDA CASE
is not the judge but a deposition officer and the place is not the
court but somewhere else, usually the office of the deposition FACTS
officer. Any admission made in the course of the deposition is a It is about a complaint on collection of sum of money
Judicial admission. where the plaintiff sought to recover 90, 000 against the defendant
but during the trial, the defendant were able to pay, that they
FORMAL OFFER REQUIRED already paid even more than 90,000. Realizing the blunder, the
Take note: While this is a judicial admission, this is the kind plaintiff during rebuttal tried to present the accountants
of Judicial admission that needs to be offered in evidence. So the certification to the effect that actually the obligation exceeded
rule that says that the fact that is already judicially admitted, no 90,000. Trying to go around the evidence of the defendant that the
need for evidence to prove it, the fact is deemed established, not in obligation has already been extinguished by payment.
the case of a deposition because for a deposition to be considered, it
has to be formally offered in evidence. The Rule specifically provides RULING
that a deposition may be objected when introduced to evidence and The Supreme Court disallowed, excluded the evidence
the objection could be based on grounds available as if the tending to show the 186,000 as the total obligation invoking judicial
deponent actually testifies in court. admission. The court said there that whether objected or not,
evidence contrary to or different from judicial admission in this case
HOW OBJECTIONS RESOLVED made in the complaint should not be considered by the court.
Take note: The deposition officer cannot rule on the However, you need to reconcile this with Rule 10 Section 5 the rule
objections interpose by the parties in the course of the deposition on amendment to conform to evidence. Under this rule, when an
taking. He just note the objections. It is the court who will rule on issue is litigated, an issue not raised in the pleadings is litigated,
the objection. If you are the proponent of the deposition, take note whether objected or not, the court shall allow amendment of the
that the party who causes the taking of the deposition does not pleading to conform to evidence and even if no amendment is done,
necessarily make the deponent his witness. Just because you take no physical amendment is effected. The non-amendment will not
the deposition, you are the one who initiated the deposition doesnt affect the result of the trial on the issues not raised.
necessarily follow that the deponent is already a witness. If the
deposition is taken and the testimony of the deponent is favorable Amendment of the pleadings
to you, you may decide to adopt it as your own and by that youre Rule 10 Section 5 governs a situation where the evidence
making the deponent your witness. It is also possible that the introduced during trial is different from the allegations contained in
testimony of the deponent is adverse to you, you may decide to the pleadings of the parties. There is a variance between what is
dispense it, the testimony taken during deposition. Or if the alleged and what is proved during the trial. According to this rule, if
testimony of the deponent may be use to impeach the testimony of there is a variance between evidence and pleadings, it should be the
the deponent, you can also make use of the deposition without evidence should prevail over the pleadings such that the pleadings
making it as your witness because the purpose is to impeach the should be amended to conform to evidence or deemed amended to
testimony of the deponent. conform to evidence. This is premise on the rule that allegations in
Anyway, the important rule here is a deposition to be the complaints or pleadings are not proof.
considered shall be formally offered and be subjected to the same SO how do you now reconcile?
objections. If the depositions is not formally offered then any Under Rule 10 Section 5, even if the evidence introduced
admission and the entire testimony of the deponent may not be to prove a fact not introduced in the pleading is objected or not
admitted in court. objected, the court may still allow amendment. If doing so, would
serve the ends of justice.
EXCEPTIONS If Elayda is to be the judge on the basis of Rule 10 Section
Take note of this exception on the rule that Judicial admission needs 5, it would appear to be that the evidence of 186,000 introduced
no proof. during the trial should prevail over the allegations in the complaint
Any admission made pursuant to an answer to a request which only alleges 90,000.
for admission under Rule 26. Any admission made in the A possible reconciliation would be that under Section 4 of
answer to a request for admission pursuant to Rule 26 is Rule 129 Judicial Admission, the exceptions to Judicial admission,
also like a deposition is a form of judicial admission. But the exemption to its conclusive nature is palpable mistake. In other
unlike deposition, this kind of admission doesnt need to words, if the admitter can prove that the admission was made to
be formally offered because the other party who is palpable mistake, the admitter can controvert the admission.
requested to make an admission is simply required to file Second is when the admitter can prove that no such
his answer to the request for admission directly with the admission was made. The second exception where no such
court where the request for admission is made. admission was made may include a situation where an admission
was made but it was taken out of context as demonstrated in the
A judicial admission is binding and more importantly
conclusive upon the party who made the admission. What is the
effect of the conclusive nature of the judicial admission? The effect
Pelaez Moot Court - Evidence Transcript Team 2015-2016

Exceptions to conlusiveness 3 Kinds of Evidence

In Judicial admission, general Rule is that it is conclusive.
Therefore, it cannot be controverted. The exceptions are: 1. Object
1. Palpable Mistake 2. Documentary
3. Testimonial
2. Proof that no such admission was made
On the other hand, Section 5 says that evidence prevails OBJECT EVIDENCE
over allegation. To reconcile the two, maybe Section 5 should be
applied in relation to Judicial admission rule should be applied if the - Generally, anything addressed to the senses of the court;
admitter can prove that there was palpable mistake. Because full range of human senses: see, touch, taste, smell, hear
palpable mistake is an exception to the conclusive nature of a - Anything that is exhibited to the court or viewed or
judicial admission. Maybe thats the way to harmonize Rule 10 examined by the court
Section 5. The pleadings shall only be allowed to be amended if the - Example: rape case establish extent of injury suffered by
admitter can prove that there was palpable mistake in the making of victim, exhibit injury itself; tort case extent of injury
the admission in the pleading which was contradicted by evidence. suffered by victim, present scar on body or injury, stab
Otherwise, conclusive nature of an admission should be respected. wound, gunshot wound; murder case weapon: baseball
bat, fan knife, butchers knife, firearm
Azolla Doctrine
FACTS 1. Real thing which is the very subject of the case
This was the case where the plaintiffs in the complaint Example: tort case (action for damages
alleges that certain transactions took place and on the basis of the arising from tort) presentation of injury of
pleadings, the plaintiffs appear to have recognize the validity of the victim; murder weapon in murder case
transaction but claim that the defendant violated the terms of the 2. Demonstrative not the real thing, just a substitute, a
agreement. The terms of the agreement on the basis of their replica, a representation of the real thing
pleading on the complaint, the agreement itself was valid but they Ex: a substitute for the real Makoy?
allege that the defendant, the bank failed to comply with the terms Knife used in murder is real object but a
of the agreement. It is about loan. Azolla Farms was supposed to photograph of the same is the substitute
undertake a project and to finance the project, they obtain a loan
but the bank instead of releasing the agreed entire amount, the REAL OBJECT EVIDENCE
bank release the loan by tranche in violation of the agreement. The REQUISITES FOR ADMISSIBILITY
bank tries to justify delay in the release of the other tranche of the
loan on the basis of the report that the plaintiff misuse the proceeds 1. Relevance you dont present object evidence
of the loan. There were reports that the plaintiff made use of the irrelevant to the case; something that tends to prove,
deposit of the loan to other projects different from what the loans to establish the probability of the issue or the crime
were applied for. So the bank delay the subsequent tranche. charged, as applicable
Ex: rape case relevant: condom left at
ISSUE crime scene, torn underwear, blood, injury;
Now, according to the plaintiff, because of the delay of the irrelevant: check, book
whole amount, their project collapsed and did not succeed and so 2. Authenticated properly
they are filing a case against the bank. If you look at the pleadings, 3. Authenticated by a competent witness
4. Formally offered to court
obviously the plaintiff recognize the validity of the agreement
precisely because they are saying that the defendant violated the AUTHENTICATION
terms and that they are seeking damages but during the trial, one of
the witness testified and under the basis of the testimony of the Authentication process of establishing in court that the thing
witness, it was realized that the agreement itself was null and void presented or offered in evidence is the very same thing that the
for certain reason and so the taking cue from the evidence proponent claims it to be; process of establishing connection
presented during the trial that the agreement was null and void, the between the object presented in court and the object being
plaintiff sought to amend right away to conform to the testimony of claimed by proponent
the witness.
- Ex: if proponent claims that knife offered in evidence
is the very knife used in the killing, authentication
simply means that the proponent must be able to
The SC upheld the rule on amendment to conform to prove that the knife being offered in court now is the
evidence. The SC allowed the amendment pursuant to Rule 10 same knife recovered in the crime scene and used in
Section 5 Amendment to conform to evidence. the commission of the crime
On the other hand, Elayda, I am not aware of another case - Ex: Knife A which is claimed to be knife used in killing
that supersedes Elayda and so Elayda is still a good law. There are but during trial you offered Knife B or gun with serial
any two conflicting principles, Elayda on one hand and Rule 10 no. 12345 but gun with serial no. 6789 is the one
Section 5 the other hand. So lets see how the SC will reconcile this. offered in court, no authentication because the
The best you can do there is argue on the provision that suits you. thing/object evidence offered in court fails to be
established or shown to be the very same knife or
object the proponent claims it to be, that involved in
the crime
- Ex: drugs case authentication refers to establishing
that sachet of shabu presented in court is the very

Pelaez Moot Court - Evidence Transcript Team 2015-2016

same sachet recovered from suspect, could not be o Not only enough that these custodians testify
anything else; hence stringent requirement of that at one time or another they happened to
authentication insofar as these types of object have possession of the item, the most
evidence are concerned important testimony of the link/custodian is to
establish the fact that while the item was in
3 CLASSIFICATIONS OF OBJECTS FOR PURPOSES OF their possession, there was no possibility
AUTHENTICATION that someone else had access to the item
and there was no possibility of tampering,
1. Easily identifiable objects which have distinguishing substitution or alteration of the object
markings o To this effect, for this purpose, the
Ex: firearm with serial no., engine with serial custodian/link must testify as to the condition
no., cellphone with serial no. of the item when it was delivered to him,
2. No identifiable marks but can be made identifiable by steps/mechanisms applied/adopted to
placing distinguishing marks not inherently prevent tampering, substitution, alteration,
distinguishable from each other but can be made so and the condition of the item at the time he
by making marks turned this over to the next custodian
Ex: butchers knife normally of same brand,
size, type looks like others, one cannot PURPOSE:
easily be distinguished from the other To establish to the satisfaction of the court that the integrity of
Ex: knife found in crime scene police the item, while in the possession of the custodian, was
inscribe his initials, or that of the suspect, to preserved
make it identifiable
3. Non-distinguishable by nature so difficult, if not o Common mistake of prosecutors lies in just
impossible, to make a distinction establishing that 1 or 2 or 3 custodians took
Ex: drugs shabu, 1 kilo owned by Miralles temporary possession of the seized items
looks perfectly the same as 1 kilo owned by without specifying as to the specific
Servacio circumstances surrounding their temporary
Ex: blood of Miralles as red as that of possession/custody over item as mentioned
Servacio (unless his blood is green ) above
Ex: urine, poison o Then next possessor will have to account for
his possession of item in same manner, all of
For purposes of offering these objects as evidence in court, them, so as not to break the chain
they need to be authenticated. The most difficult to o Very important procedure to authenticate
authenticate are those belonging to the third class. The most seized drugs for prosecution of drug cases,
important rule in authenticating these types is the so-called RA 9165
chain of custody requirement. While these 3 require the same
process of chain of custody, the requirement is strictly Around 80% of cases filed in court are drug-related. Master
indispensable or necessary insofar as 3rd type is concerned. this if you want to venture in this field. Very reliable defense in
drug cases:
SEC 21, RA 9165
- Evidence may pass from 1 custodian to another; from time
of recovery up to the time object evidence is presented in STEPS:
court, this could pass through several temporary
holders/handlers/custodians 1. MARKING of seized illegal drugs by seizing officer
- Movements of evidence must be duly accounted for by immediately upon seizure
custodians, who happen to have taken possession or To make it identifiable or distinguishable from the
custody of the items, from recovery up to presentation in rest of the illegal drugs of the same kind
court Ex: If Mr. Miralles is arrested for illegal sale of
- Requires links, referring to temporary custodians, must not shabu and when he was arrested after the sale
be broken and subjected to body search, several other
- Obviously because you, as proponent, need to establish sachets of shabu were recovered from his
connection that one recovered is the very thing presented possession so we have 1 sachet for illegal sale
- If link is broken, there may be a doubt that the one (non-bailable) and 50 others for illegal
presented may not be the one recovered possession (bailable). These are separate
offenses, normally charges to be filed include
RULES: illegal sale, illegal possession or if the police is
- Not necessary that each and every holder presented naughty about it, Sec 12 (drug paraphernalia:
st nd
in court if evidence belongs to 1 or 2 types lighter, aluminum foil), if police too malicious,
But if under 3 type, like drugs, it is indispensable that illegal possession of firearms (.45 caliber pistol
every movement of whatever nature must be duly recovered during search). So normally, accused
accounted for, necessitating presentation of each and or people who are charged with violations of the
every link, each and every custodian Dangerous Drugs Law would face at the very
o If from the time of seizure up to the time of least 2 violations, sometimes 3, 4 or 5 lumped
presentation in court there were 5 together (sections 5, 11, 12, sometimes visiting
custodians, all of them must be presented in drug den then illegal possession of firearms,
court explosives). So the first link or the 1 step is the
marking of the seized item. So to distinguish the

Pelaez Moot Court - Evidence Transcript Team 2015-2016

sachet recovered from the suspect Mr. Miralles

which was the subject of the sale, it has to be 4. WITNESSES to inventory and photograph-taking
distinguished from the 50 other sachets which Accused himself or person from whom items
are subject of a separate case for illegal were recovered; in his absence, any member of
possession. They cant be mixed together his family or any person acting as his
otherwise there would be doubt as to the identity representative
of the subject sachets of shabu. So for a Elected government official not appointed like
successful prosecution, 1 sachet subject of the brgy tanod; at the very least, you have brgy
sale must be distinguished from the other councilor or kagawad
sachets of shabu. To do this, you need marking. Either representative of DOJ or of media
*Previous rule was elected official, DOJ
Where must it be made? representative and media representative but
The marking must be made at the place of it was recently amended, the no. of
seizure immediately upon seizure unless not witnesses required has been reduced from 4
practicable as when the suspect resisted, is to 3. All 3 must be present, take note.
armed, a firefight ensued. You cannot expect the
police officer to mark despite such. So marking At what stage of entire police operation is their presence
can be done at the nearest police station/office. required?
But if practicable, it should be done at the place Sec 21 only provides during inventory and photo
of seizure. It is incumbent upon or the burden of taking
the police to establish that marking at the place of Inventory only comes after seizure, so is
seizure is not practicable. presence required during seizure? Or just during
inventory after the seizure?
2. PHYSICAL INVENTORY Jurisprudence has it that its enough that they are
Account for all items recovered present during inventory. They are civilian
Must be evidenced by a document, an inventory personnel; you dont expect them to go along
form listing all items recovered with the raiding team in their police operation.
Thats risky because suspects would be armed
Where conducted? and in many instances would resist. SC
It depends: understands wisdom of law requiring presence
- If result of implementation of search only during inventory where everythings under
warrant, at the place of seizure control, theres no more risk to life and limb.
- If without warrant as in buy-bust (in But SC also realized that if these witnesses are
flagrante delicto), at the place of seizure not required during actual seizure then what
if practicable or nearest police fruitful purpose will they serve when they are only
station/office present after seizure, during the inventory? The
The sooner made, the better, because rule says purpose of the requirement of the presence of the
immediately upon seizure; the logical witnesses is obviously to prevent planting,
interpretation is that to be immediate, it should be tampering, substitution and alteration of
done where the items are seized evidence. The possible planting, tampering,
substitution and alteration takes place during the
3. PHOTOGRAPH of seized item/s supposed seizure so if no one would witness the
Proof that items were seized and inventoried actual seizure, theres no guarantee at all that the
Must be taken at place of seizure where evidence, the seized illegal items now subject of
inventory was conducted, if practicable; if not, at the physical inventory, really came from the
the nearest police station suspect or were really recovered from the
possession of the suspect. At the end of the day,
What do you photograph? its going to be he said, she said between the
Police has their way of circumventing rule of polices words and the accuseds words.
taking photo at place of seizure and in presence Case: PP v. Larry Mendoza (2014) SC went on
of witnesses by calling in witnesses after further to require presence of witnesses during
supposed inventory and photo taking, several actual seizure of illegal drugs because seizure is
hours after, they are merely asked to sign the critical aspect of the police operation. Its
afterwards even if not present during actual there that possible planting can be done by
inventory and photo taking raiding team. In order to prevent possible planting
Advocates demand photo of witnesses while of evidence and to isolate the police officers from
inventory conducted allegations of planting evidence, take note of dual
If photo only shows seized items placed on table purpose, the presence of witnesses is required
but no photo of witnesses present, it would create during seizure and not only during inventory.
doubt on whether these witnesses were really
present during inventory 5. Every movement of the seized illegal drugs MUST BE
Smarter policemen now, to avoid challenge on PROPERLY DOCUMENTED.
this matter, would not only take photo of seized Document contemplated by law is the so-called
items but include witnesses so now a group chain of custody form
picture (accused, witnesses and seized items) Each possessor must accomplish a chain of
to overcome any challenge that witnesses were custody form: if there are 3, 4 or 5
not present during the inventory custodians/possessors of the drugs from the time

Pelaez Moot Court - Evidence Transcript Team 2015-2016

these drugs were seized to safekeeping to - Remedy: Go to trial. During trial, you establish non-
submission to laboratory for examination until compliance with sec 21 and if the non-compliance with sec
submission in court, all who had opportunity to 21 is so gross that the court cannot possibly ignore it, you
take temporary custody must accomplish form; just have to file your demurrer to evidence. As I said,
otherwise the chain/link is deemed broken failure to comply renders doubt as to the identity of the
Also a common mistake/error/failure of police, corpus delicti. So you cannot do away with trial. At least
failure to accomplish required number of chain of you have the demurrer or you can opt for a full-blown trial
custody forms by presenting also your own evidence, you can present
witnesses that there was actually no buy-bust, that your
EFFECT OF NON-COMPLIANCE WITH CHAIN OF client was just picked up by the road, that the police just
CUSTODY REQUIREMENT barged into the house of your client and they arrested your
client because most of the time the police would just knock
- This does not render seized illegal drugs inadmissible. at your door, barge into your house and just pick you up,
Neither does it render seizure and arrest illegal. thats according to my client. Thats common. You know
- Effect: Failure to establish corpus delicti of crime charged, its so difficult to arrest peddlers of drugs; theyre smarter
meaning there is deemed failure to establish that drugs than the police. Buy-bust doesnt work now; the peddlers
submitted/presented in court are the very same drugs of illegal drugs know that buy-bust is the common practice
seized from accused, if there is failure to establish corpus of the police in going after them. Its unbelievable that the
delicti of the crime, there is doubt, and if there is doubt, drug peddlers would transact with someone they do not
accused must be acquitted know. That renders buy-bust operation an incredible police
story. That will not happen. Its not like a ballot vendor who
- Take note: its a ground for acquittal, governed by rule on would peddle his wares outside; thats illegal contraband.
weight, sufficiency and credibility; has nothing to do with So because of the difficulty of catching peddlers in the
admissibility very act of possession of shabu, they have no choice but
to produce results and just pick up someone notorious,
- This ruling is corrosive to the rule on authentication. As we known to be engaged in the illegal activity of peddling of
have discussed earlier, one of the requisites for drugs, and come up with the story of buy-bust operation.
admissibility of object evidence is authentication. Meaning Thats their common story. So you will realize the affidavit
if there is failure to authenticate, evidence is not used by the police in one case is the same one used in
admissible. And sec 21: chain of custody requirement is another case. They just change the specifics of the name,
an authentication requirement. Yet, SC said failure to the place and the time but the modus operandi is the
comply with sec 21 doesnt render evidence inadmissible. same. There is no buy-bust. The peddlers would not buy
- Effect: Since the evidence is not inadmissible, you cannot it; they would only deal with people they know. Thats why
object to the admission of the seized illegal drugs when when you cross-examine the police when they testify, its
formally offered by prosecution on the ground of failure to really a mess. You cross-examine 2 or 3 of the police who
comply with sec 21. But you can always argue that claim to have conducted the buy-bust, its just like 6 blind
because of failure to comply with sec 21, the prosecution men made to touch the parts of an elephant and made to
failed to establish the corpus delicti and therefore this describe what the world looks like. When something does
creates doubt as to identity of evidence presented in court, not happen, its very difficult to come up with a uniform
doubt whether these sachets of shabu, for example, are story. When asked who marked this item, one would say it
the very same sachets of shabu claimed to have been was police officer so and so. And so when it was the turn
recovered from the possession of the suspect. So of this police officer to testify and he was asked who
acquittal. marked this item, he would also say police officer so and
- You cannot also move for the suppression of these illegal so. Who conducted the inventory? I was the one. When
drugs. If it were an ordinary seizure of evidence like the other police testified and is asked the same question,
evidence obtained in a search without a valid search he would say I was the one. Thats the reality of the
warrant, your remedy there is to file a motion to suppress problem of illegal drugs in this country. So most of the
the evidence illegally seized without a search warrant for crimes or drug cases are dismissed.
being fruits of a poisonous tree. So that this evidence will
not be presented against your client, you move that it be Who Can Authenticate Real Object Evidence?
suppressed. Chances are when the prosecution and the
police have no more goods on your client, the police will - Someone who has personal knowledge of object
not pursue the case as when the courts declare them to itself; not just anyone
have been illegally obtained and suppress them, theres - Ex: police officer who recovered murder weapon at
no more basis for the court or police to pursue that. At that crime scene must be the one to authenticate I am
level, you can nip the case in the bud. very sure that this is the weapon/firearm/butcher knife
recovered from the crime scene because when I
So when you happen to handle a case for the violation of recovered it I placed some distinguishing marks.
the Dangerous Drugs Law and you go over the affidavits
of the police and its obvious that the police failed to DEMONSTRATIVE OBJECT EVIDENCE
comply with sec 21, you cannot avail of this remedy, you
cannot short circuit the proceedings by filing a motion to - Refers to just the substitute or replica of the real thing
suppress because this is premised on the theory that the
evidence to be suppressed are not admissible. But as I How do you authenticate Demonstrative Evidence?
said, failure to comply with sec 21 does not render the - Unlike Real Object Evidence where Personal Knowledge
seized illegal drugs inadmissible. is required, here, it is not required that the one who
took the photograph or the recording authenticate the

Pelaez Moot Court - Evidence Transcript Team 2015-2016

demonstrative evidence (while it may be ideal to really TAKE NOTE: for purposes of filiation, DNA testing is not a
present the photographer to authenticate the photograph) matter or right. The proponent has to establish a prima
- Thus, anyone familiar with the person, place or event facie case of paternity before DNA test can be ordered by
depicted in that demonstrative evidence can authenticate the court. The Supreme Court held in the case of Lucas
vs Lucas that this is to protect anyone from any
Examples: indiscriminate claim of filiation. It is the burden of the
a photo of Mr. Miralles shown in courtit is proponent to establish a prima facie case of paternity
not required that the one who took the photo before the court can order or resort to any court ordered
will be the same person who would DNA testing (akin to probable cause in the application for
authenticate the said picture, it could be a search warrant, this is not a matter of right)
anyone so long as that person is familiar with
him and is shown Mr. Miralles picture, he Tijing vs Court of Appeals
could attest to the court that the one in the - A habeas corpus proceeding filed by the parent of the
picture is indeed Mr. Miralles will be child who was stolen by the employer of the parents which
sufficient they claimed to be their own. The parent was a
A picture of the house where the rape was laundrywoman who was sent to do an errand and left the
committed- anyone who is familiar of that child with the care of the employer, but when she returned,
said place, even if he is not the one who took the employer together with the child were nowhere to be
the picture could authenticate found. For several years, they never recovered nor seen
the child. Fortunately, when someone died, an obituary
US vs Tatum was placed in a newspapers which led the parents to
- Prosecution for illegal encashment of a welfare check know the whereabouts of the employer who stole the child.
belonging to the private offended party. This check was Thus they attended the wake and true enough, they found
stolen and enchased by someone else. However, the employer and the child. But, the employer insisted that
investigation revealed that the suspect enchased the the child was hers so they went to the court to file for
check and he transacted with a convenience store. habeas corpus.
Unknown to the suspect, when he was transacting with the - A critical issue there was on the parentage or filiation of
personnel of the convenience store, he was captured by a the childthe petitioners claim that the child was stolen
Regis cope machine (a machine installed to capture the by the defendant.
image of people they transact with and in the machine, the - Held: One of the critical evidence that the Supreme court
suspect was captured in still photograph from his waist up. considered in deciding/holding that the child belongs to the
Thus, the print out was presented and the one petitioner was the traditional way of establishing filiation
authenticating the picture was not the one who developed and that is by taking into consideration the physical
the photograph. features of a child vis--vis the features of the parents.
- Held: It is not required that the one who took the picture Here, the child possessed the feature of the parents. BUT
should be the only one to authenticate, thus anyone it was in this case the SC acknowledged DNA as a
familiar could do so. means of ascertaining disputes involving paternity/
filiation. The SC encouraged courts to not hesitate in
People vs Sison admitting DNA evidence in resolving issues relating to
- Murder of a supporter of Cory Aquino during those filiation
tumultuous political times. There was a rally by the Marcos - Thus, taking cue from this case the SC eventually
supporters, however, a supported or Cory Aquino was promulgated our Rules on DNA Evidence not only as to
mauled to death. One of the pieces of evidence that they disputes involving paternity/filiation, but also as to any
presented were photographs of the mauling incident other kinds of disputes.
showing the image of the suspects. The witness who
authenticated wasnt the photographer, but attested in
court that he was familiar with the incident as it took place When can you apply for DNA tests?
and that he was there. a. Even before filing a case
- Held: this is to be considered sufficient authentication so - Without need for court order, anyone can resort
long as he was familiar with the person, the places and the to DNA testing including Government
incident that took place. Enforcement Officers
- Since theres no case yet, then there is no need
Scientific Evidence (another form of Demonstrative Evidence) for court intervention.
- These are evidences which are the hander work of some
persons equipped with expertise, skills and experience. b. When there is already a pending case
- In this jurisdiction the common forms of Scientific - There is an issue that needs to be resolved by
Evidence include: DNA evidence
1. DNA - Any interested party who has an interest in the
- Relatively new in our jurisdiction but our courts opened the subject matter of the litigation can always move
door to the use of DNA Evidence in Tijing vs Court of for the conduct of a DNA test. However, this time
Appeals around, leave of court is necessary
- Now applies to all kinds of proceedings (civil, criminal, - The court on its own, may also move to conduct
special proceedings) a DNA test
- Premised on the Universal Truth that there are no 2
persons that are of the same DNA, except identical twins. c. Post-Conviction DNA test
Thus, DNA is unique for every individual - This is one of the breakthroughs in cases of DNA
evidence in our jurisdiction

Pelaez Moot Court - Evidence Transcript Team 2015-2016

- Here, even if the person is already convicted, the truth but it may have practical value in law
acquittal can still be achieved by the result of a enforcement (the police can conduct investigations in the
post-conviction DNA test use of lie detector or polygraph tests prompting them to
- Thus, this presupposes that there was already wither proceed, pursue a lead or back off depending on
conviction by a final judgment (in the sense that the result)
there is no more appeal but executory (not
executed or judgment not fully served) 3. Paraffin test
- Test that determines the presence of absence of nitrates
Who can avail of the post-conviction DNA test? - Commonly used in cases involving the firing of firearms
(i.e. homicide, murder in establishing that the accused is
- It is the accused or the convicted the one who killed the victim)
- Even the prosecution who obtained a conviction but
subsequently, they have reason to believe that the What is the evidentiary value of paraffin tests in this
convict is not responsible for the crime jurisdiction?
- And in here, if the post-conviction DNA test
results warrant the acquittal of the accused, - The result could either be positive or negative
then the judgment of conviction must be - Positive (it simply proves that nitrates are found
reversed and the convict must be released in the body of the person subjected to the test
from confinement no more, no less. It however does not
- But if the convict has already served his conclusively show that he was the one who fired
sentence, by express language of the rule, this the firearm as the presence of nitrates in the
cannot anymore be availed of because the body does not mean that he was the one who
sentence has already been served. Theres not fired the firearm as nitrates could come from
point reversing the judgment when the sentence other sources other than firing the gun like from
has already been served fertilizers, eating leguminous plants, etc.)
- Negative (when no niutrates are found but the
What then is the value of a DNA test result in so far as the absence of nitrates is not also a conclusively
issue on paternity is concerned? evidence that the one subjected to the test did
not fire the firearm as it is possible that he did fire
a. If the DNA test yields a NEGATIVE result the firearm but because of some factors, nitrates
(there is no probability that the child is indeed the couldnt be found like when the suspect washed
child of the purported parent) his hands after firing, he was perspiring, or
- This is CONCLUSIVE AS TO NON-PATERNITY because of wind direction)
- Thus, no amount of contrary evidence can - Thus the results could be CORROBORATIVE
controvert this result EVIDENCE (not sufficient when standing alone, but taken
with other evidences could be sufficient)
b. If the result is POSITIVE (meaning there is a
probability that the child is the child of the Question: what if there are identical twins and there is a
purported parent) dispute as to the paternity of the child?
- Follow these rules:
- if the probability of paternity is less Sir: DNA test could not be reliable here as they have the
than 99.9% (the DNA test result is same DNA profile. If the purported fathers DNA (the
CORROBORATIVE EVIDENCE OF identical twins) would match the DNA of the child would
PATERNITYmeaning, it is not not, as it is alone cant determine the paternity. This will
sufficient, standing alone, to establish only be corroborative and there is thus a need for another
paternity but taken in tandem with evidence say a testimony of the mother as to whom she
another piece of evidence can establish had a relationship with. So the court cannot just rely on
now paternity) the result of the DNA evidence
- if the probability of paternity is 99.9%
or more (this DNA test result is a
- This is the second classification of evidence on
matters of form
PATERNITYthis is a presumption of
What is a document?
paternity but it can be overcome by
- Under the rules: it is any writing or
contrary evidence)
material containing words, figures,
numbers, symbols or other forms of
2. Lie Detector Test
written expressions offered as proof
- Could yield to a positive or negative result
of its contents
- Premised on the scientific theory that one who is lying is
- Take note: what makes a writing or
likely to exhibit physiological changes in his body which
material containing words, figures, etc.
could be monitored through sensors that touch the body
documentary evidence is the fact that it
(ex. Your heartbeat goes fast, you perspire, etc.)
is offered as proof of its content. The
operative fact then here is the purpose,
What is the evidentiary value of Lie Detector tests in this
such as when its offered other than as
proof of its contents, then that writing or
- They are not admissible because according to the material containing words, figures, etc.
Supreme Court, this has not been accepted by the is not to be considered as documentary
scientific community as a reliable means of ascertaining evidence but can be object evidence.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

- Example: A criminal law book is offered contains libelous remarks. Thus, you
in evidence as a murder weapon used in present the original message which is a very
the killing of victimit is a material friendly message and also the second
containing words or figures. But if the message, the one different from what was
purpose of offering it is not to prove its sent. Both are considered as original
contents, then that book is not be documents.
considered as documentary evidence b. When the Document is in two or more copies
but simple object evidence (like when its executed at or about the same time, with identical
presented so the court can examine the contents, all such copies are regarded as originals
physical condition of the book) - This contemplates of a situation when the document is
Common Exclusionary Rules as to made of 2 or more copies.
Documentary Evidence: - Made possible by using carbon paper where you prepare
- Parole Evidence Rule one document, and by using it, you have several copies
- Best Evidence Rule - Thus, all those copies produced are also considered
original and for purposes of the Best Evidence Rules,
either of them could be presented in court without
BEST EVIDENCE RULE accounting for the others because they are equally
regarded as originals.
- When the subject of inquiry is the contents of
- People vs. Hon. Tan- prosecution for anti
a document, no evidence is allowed to prove
graft and corrupt practices act
its contents other than the original writing
- Here is a government official accused of
purchasing supplies purportedly to be
- If the subject of inquiry is the material containing
delivered to some recipients but he
words, symbols, figures, etc. then the original
malversed these. During trial, the
writing itself, not a copy nor a testimony of a
prosecution presented the triplicate copy
witness must be produced
of the receipts showing that some
- Example: issue on the contents of a deed of sale
medical supplies were purchased.
as the plaintiffs say that the deed of sale involves
Lot A, but the defendant insists that its lot B so
However, this was disallowed by
obviously, there is a dispute as to the contents of
the lower court under the Best
the deed of sale. Thus the test/issue here is that
Evidence Rule as what was
what does the document say?
presented was only the triplicate
What is an original document? (Sec. 4,
- Held: For purposes of the best evidence
Rule 130, Rules of Court)
rule, when a document is made up of
a. An original document is the document the contents of
two or more copies, with identical
which is the subject of inquiry
contents, executed at or about the same
- Here, it does not matter that the document is the first
time, all the copies are considered
document produced or created or whether it a photocopy.
original. Thus it was proper for the
- So long as the contents of the document are the subject of prosecution in presenting the triplicate
inquiry even if its just a photocopy so long as the contents copy of the receipt as it is just as original
of such document is the subject of inquiry then, that is to as with the first or the second copy.
be considered as original c. When the entry is repeated in the regular course of
- Examples: business, one being copied from another at or about
A case for falsification and what was the same time of the transaction; all the entries are
falsified was a photocopy. Here, say, likewise equally regarded as originals
theres a deed of sale saying Lot A but Mr. -
Difference with the 2 kind of original Document (In the
Miralles produced a photocopy, but nd
2 , the originals are all the copies, but here, what are
superimposed the photocopy making it considered as original are all the entries)
appear that the subject lot is Lot B. thus, if
- Example: Mr. Miralles is running a high end Sari-sari store
you look at the first Deed of Sale, it would
and as a meticulous owner, he keeps three journals (1 for
say Lot A, but the photocopy containing the nd
him, 1 for his wife and 1 for his 2 wife). Thus, to keep the
superimposed figure Lot B is the falsified
balance of power, he needs to accomplish the entries of
the journals to reflect the transactions of the day. So he
records in the 1 journal say, the number of amounts
The subject of inquiry here is the contents of
purchased, the prices, etc. for a given period; now using
the falsified photocopy. But you also need to
this first journal, he copies the entries here and records
establish the genuine document for nd rd
them in the 2 and then in the 3 journals. So there are 3
purposes of falsification. Thus you also have
journals prepared at or about the same time of the
to present the first copy as you have to
transaction containing the same entries
compare. So, you present the original to
establish the genuineness of the document
Say, a dispute arises where the subject of inquiry is
and also present the falsified photocopy for
the dispute of the journal, for purposes of the best
purposes of falsification which is also an
evidence rule, the presentation of any of the 3
original document like the first document. st
journals is okay. The entries in the 1 journal are just
In cases of telegram when the message nd rd
the same as the entries as that of the 2 and the 3
delivered is different from the message
journals. So the entries in either of the three journals,
received and the message receives
for purposes of the best evidence rule could be
Pelaez Moot Court - Evidence Transcript Team 2015-2016

presented in court without having to account for the should have been presented under the
other two. best evidence rule, it being the original.
- Held: The Supreme Court said that the
Take note: the Best Evidence Rule reference to the notebook was only
establishes a rule of preference. collateral to the fact in issue. The fact in
- Meaning, as a General rule, if the original is available, issue being the bumping off of Mr.
then you present the original and no other evidence is Carrascoso/ the altercation he had when
admissible. The so called reproduced copies of original was asked to leave his accommodation.
will not be admissible. The reference to the notebook was only
incidental or collateral to the fact in
However, there are situations which do not call for issue. Thus it was perfectly okay to
the application of the Best Evidence Rule (thus, present such evidence.
not all disputes relating to documents call the 3. When the writing or the material containing
operation of the best evidence rulejust because the words, symbols or expression are offered to
dispute involves writings, it would not follow that the establish a fact which has an existence
best evidence rule is applicable): independent from the document although that
fact may have been produced or evidenced
1. as it is, the best evidence rule applies when the into writing.
subject of inquiry is the contents of a document; - There are facts, the existence of which may be
conversely, when the writing or material proved by other evidence even if this can also be
containing words, figures, numbers, etc. are proved by some documents
offered not to prove its contents but its - Example: the fact of deathso in prosecuting a
existence or some extraneous condition, then case for murder, you need to establish death but
the best evidence rule would not apply and thus, the death certificate is not the only evidence of
any evidence offered will do like the testimony of death. You can also present the testimony of the
a witness without accounting for the original embalmer attesting to the fact of death. This
- People vs Tandoy testimony of the embalmer cannot be objected to
- This is for prosecution for violation under the best evidence rule and you cannot
of the Dangerous Drugs Law. During insist that the death certificate should be
the trial, the prosecution presented a presented.
policeman who claimed to have
conducted the buy-bust operation where US V. Meyers
he used a marked money which was
paid by the poseur-buyer to the suspect. This involves a prosecution for perjury. There was someone
They did not present the actual money, who testified before a committee conducting a Senate Hearing
but only the photocopies of the money. about certain activities of a businessman. His testimony was
Thus the defense object on the alleged to be perjured testimony given before the senate
photocopied marked money on the committee. During the trial and in order to prove the accused
ground of best evidence rule. committed injury, the prosecution presented the hearing officer
- Held: this is not a case calling for the who testified that during the hearing the accused testified on
operation of the best evidence rule. The this and that which claimed to be perjurious.
purpose of presenting the marked
It was objected by the defense contending that the testimony
money is to prove that a buy bust
should have been proven by the Transcript of Stenographic
money was used in the operation. It
Notes taken during the hearing which was in writing.
never intended to prove the contents of
the marked money as theres no dispute The SC said the issue here was whether the accused perjured
on the letters, numbers, figures found on himself under oath when he testified during the hearing. The
the marked money. existence of these statements can be established 1) by
2. When the document is only collateral to the persons who heard the accused testifying or by the
fact in issue 2)Transcript of Stenographic Notes. It may happen that the
- Meaning there is a dispute involving the testimony given before the investigating committee was
document but this is only collateral. reduced into writing but it is not the only evidence to prove that
- Collateral Fact Rule indeed the accused committed perjury. Any person who heard
him, that testimony is admissible. So the fact to be established
- Air France vs Carrascoso has independent existence apart from the document although it
- Carrascoso was a business class happens that it is evidenced in writing.
passenger and he was bumped off while
on board an aircraft in favor of a white 3. BER does not apply if the defendant or the party
man, a Filipino victim of racial admitted the genuineness and due execution of an
discrimination. Thus he filed a case for actionable document.
damages against the airline. In support
of this, he testified by narrating the What is the effect if the party admits expressly or impliedly
incident and part of his narration, he the genuiness and due execution of a document?
testified that an employee recorded the
This was the ruling in Consolidated bank v. Del monte
incident in his notebook. So theres a
reference to a document (a notebook).
The airline argued however that such
was inadmissible as the notebook itself
Pelaez Moot Court - Evidence Transcript Team 2015-2016

The bank filed a collection of sum of money against a Whats the difference between a situation where it does
defendant on the basis of a promissory note executed in favor not call the application of the BER from an EXCEPTION to
of the bank. Upon the receipt of the summons the defendant the BER?
filed its answer and in their answer they alleged the defense
that they never received anything from the bank, meaning If the problem or dispute does not call for the application of the
there was no consideration. BER, then the result is you dont need to present the original or
the first, you can present anyone even the witness, you can do
During the trial the bank failed to present the original PN so this without accounting for the original.
they presented the photocopy signed by the defendant so they
objected on the ground that it violates BER. If the problem calls for the exception, you have to account for
the original before you can present the SECONDARY copy,
The SC said, under the rules when a complaint is based on an recital, testimony.
actionable document like a PN, the defendant is required to st nd
deny under oath the genuineness and due execution of it If it falls under the 1 and 2 exception, you can only present
otherwise it will result in the implied admission the its the secondary if you are able to account for the original, this
genuineness and due execution and therefore he cannot accounting for the original is not required when the situation is
anymore assail the genuineness or claim the PN is a forgery. one which does not call for the application of the BER, this is
the ruling in the case of HEIRS OF MARGARITA PRODON v.
What is the effect of this implied admission? According to ALVAREZ
the sc, when the defendant impliedly admits the genuineness
and due execution, it does not include only the admission of its 1. WHEN THE ORIGINAL HAS BEEN LOST, OR
- cannot be produced includes when the original is still
existing but physically cannot be brought to court like the
PARTIES. And when the party does not dispute the contents
subject of inquiry is the writings of a tombstone or subject of
then there is no occasion to apply the BER because as I said
inquiry is the writings over a female breast or the male organ.
When does the writings of a document become the subject Before presenting the secondary, you must account for
of inquiry? the original but how do you account for it?
In the same case, the SC said the contents of a document or 1. Proponent must establish the existence and
material becomes a subject of inquiry if there is a dispute as to genuineness and due execution of the original.
the precise terms or precise tenor, figures, words found in the How do you do this?
document or material. Absent a dispute as to the terms, words,
tenor, symbols, there is no occasion to think of BER. This is You need to present testimonial witnesses.
exactly what happens in this case when they failed to deny
under oath therefore they cannot object to the admission of the a) Parties to the original document
photocopy because BER does not apply. b) If not available (ex. Dead), witnesses to the execution
of the document
Do not confuse these with the EXCEPTIONS TO THE BER. c) If not available, notary public before whom the
document was acknowledged.
EXCEPTIONS d) If not available, any person, witness not a party, not a
Exceptions: (in these instances the original is not witness to the execution, not the notary public before
presented but the secondary evidence) whom the document was acknowledged, but
someone who is familiar with the signatures or the
RULE 130, Sec. 3. Original document must be produced; handwritings found on the document and can attest
exceptions. When the subject of the inquiry is the contents of that these signatures or handwritings are those of
the document, no evidence shall be admissible other than the persons who purportedly signed these.
original document itself, except in the following cases: e) If not available, someone to whom the parties to
whom the parties to the contract confided the
(a) When the original has been lost, or destroyed, execution of the document. He is not a party, not a
or cannot be produced in court, without bad witness to the execution, not the notary public before
faith on the part of the offeror; whom the document was acknowledged but qualifies
(b) When the original is in the custody or under the because after the execution of the document the
control of the party against whom the parties confided to him that they executed the
evidence is offered, and the latter fails to document. Now under in DE VERA V. AGUILAR but
produce it after reasonable notice; I have my reservations for this because the testimony
(c) When the original consists of numerous of these witnesses are hearsay but thats the ruling in
accounts or other documents which cannot be De Vera, I dont think it can pass the test of hearsay
examined in court without great loss of time and evidence rule.
the fact sought to be established from them is
only the general result of the whole; and
(d) When the original is a public record in the
custody of a public officer or is recorded in a
public office.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

2. The fact of loss, destruction or unavailability. possession of the other party, and requested the
other to produce it in court, the lawyer said that
How do you establish the fact of loss? they would relay the request to their client and
inform the court about it which he did not so
a) You can present a witness who has personal when the unavailability of the original, the propent
knowledge of the fact of loss (example the original produced the photocopy, objected, SC said there
was destroyed, the person who had personal was sufficient compliance of the rule, so it
knowledge of that fact) justified in supplying for the secondary evidence.
b) You can present a witness who has no personal
knowledge but he is qualified as a witness to testify as 2. When the other party fails to produce the original, and
to the fact of loss because he conducted an you believe that it is in possession with the other party,
investigation or effort to locate the original in place you consider the original as lost, destroyed or cannot be
where such kind of document if original is likely to be produced. By considering as lost, you may now comply
kept by its custodian with the requirement of presenting secondary evidence in
c) Witness who exerted effort to locate the original but the case of loss, destroyed or unavailability. So you go
the originals could not be found, these are witnesses back to the requisites of loss.
who made investigation in places other than those
places that that documents of that nature are normally 1. Proponent must establish the existence and
kept. genuineness and due execution of the original.
2. The fact of loss, destruction or unavailability
3. Establish the contents of the missing original (possession with the other party but cannot produce
document it)
3. Establish the contents of the missing original
How do you establish this? (MUST BE IN ORDER according to document
the Rule, BUT according to literature on the matter, this is not
an absolute rule -sir) (WITH THE SAME SUBREQUIREMENTS)


2. Recital of the contents in some authentic records ACCOUNTS OR OTHER DOCUMENTS WHICH CANNOT BE
(example is your birth certificate/ marriage certificate) EXAMINED IN COURT WITHOUT GREAT LOSS OF TIME
TN: Part of the accounting of the original is if its in two or more AND
copies, you need to establish how many original copies are
there, it is not enough you prove the existence of the original, - the secondary evidence here is the summary lifted from all
you also have to establish the number of the copies of the the original numerous accounts or records. TN for this purpose
original as espoused in De vera(only 2 out of 3 were the fact to be established is the general result of the whole and
accounted for, SC said not enough) AND Country Bankers TN as enunciated in the case of COMPANIA MARITIMA, for
v. Lagman, if there are two or more originals, the proponent this exception to apply the proponent mas be able to prove that
can only present the secondary if the proponent is able to the adverse party was given the access to all the original but
account for all the original copies. numerous accounts or records to enable them to intelligently
conduct their cross-examination of the witness who is testifying
2. WHEN THE ORIGINAL IS IN THE CUSTODY OR UNDER on these accounts using the summary. Establish the
THE CONTROL OF THE PARTY AGAINST WHOM THE voluminous nature, and present the summary. This practice is
EVIDENCE IS OFFERED, AND THE LATTER FAILS TO commonly adopted in cases involving ESTAFA where estafa is
PRODUCE IT AFTER REASONABLE NOTICE; perpetrated by an employee of a corporation and the crime
was committed over a long period, documented this would
REQUIREMENTS: usually involve voluminous records, covering transactions over
a period of time, so instead of presenting all the receipts, just
1. Proponent must serve notice to the other party and present the summary of these records.
request to the other party to produce the original
1. Proponent must prove that the original is in
possession of the other party and despite notice the -the certified true copy of the original is the secondary
other party fails to serve despite notice. evidence. Generally official records of some public office are
How do you serve notice? not supposed to be removed from their custody. Only by
subpoena or court order that these official records may be
a) Motion for the production of documents (modes taken out and brought outside.
of discovery)
b) Resquest for issuance of Subpeona Duces So its not possible legally to get the original in the possession
Tecum of the custodian. Now what happens when the subject of
c) Manifest in open court through oral motion asking inquiry is the contents of that original record but you cannot
the other party to produce it in court. bring it to court? You may now present the secondary evidence
which is the certified true copy issued by the legal custodian.
(EX. SHANGRILLA vs. BF corporation)
-in that case, the counsel for the other party AGAIN THE NEED TO ACCOUNT FOR THE ORIGINAL
manifested that the original was in the APPLIES ONLY TO THE FIRST TWO.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

BER like any rules of exclusion is not a self-executing -sourced out from digital cameras, digital images captured
mechanism it has to be invoked timely and seasonably. by the camera and stored in your cellphone or digital images
Objection to admissibility of documentary evidence should be sourced from digital video presentation (ppt presentation) or
done at the time the document is formally offered. scanned documents

So that, during the trial where the documentary evidence was Email messages (the most common)
only identified by the witness and marked for identification Text messages
purposes, its premature for the adverse party to object if what Voice messages (Most telephones are now equipped
is being identified and marked is a photocopy. You can only with voice mail)
object to the admission of a photocopy on the ground that it Facsimile messages
violates BER when it is formally offered.
How does the Rule on Electronic Evidence impact on the
Many lawyers commit the mistake of interposing this objection Rules of Court?
prematurely. If you are the proponent and the other party
objects, you can say I have not yet formally offered the One of the salient features of the rules on electronic evidence
document your honor! Its premature to object , but thats deals with documents and therefore it impacts on exclusionary
common in practice. It would be to your advantage if youre the rules relating to documentary evidence like the best evidence
adverse party to keep silent and object when it is formally rule.
offered. So that its too late for the other party to present the
original. Whats our Rules on Electronic Evidence as applied to the
Best Evidence Rule as ordinarily applied to paper based
It is been said that law while it is permanent, cannot stand still. Take note that as it is now, electronic evidence is admissible
Law also keeps on changing as society evolves over time. So as ordinary paper based document.
does rules, jurisprudence. The Rules on Electronic Evidence is
relatively new in our jurisdiction. In the absence of modern
technology, we are now in the cybereverything is cyber. So Electronic Document
rules have to adopt to the changing time. Before the
promulgation and enforcement of the Rules on Electronic This is interchangeably used with the term Electronic Data.
Evidence, there are already some electronic evidence that For purposes of the Best Evidence Rule, electronic data
found their way in our courts but the way to present them was message or electronic document, the same!
the traditional way. This figured in the case of People vs.
If you look at the definition, it is more or less the same as how
the rules of court define an ordinary paper based document for
People vs. Burgos purposes of the best evidence rule. And under both rules
(electronic and rules of court) on ordinary paper based, the
This involves a criminal prosecution to the crime of sedition application of the best evidence rule is limited only to situation
filed by the state against Burgos. The apartment of Burgos was where the contents of an electronic document or an ordinary
searched by the police operatives and found some allegedly paper based document is the subject of inquiry. The same!
subversive materials including some diskettes which allegedly
contain subversive materials. So when the case went to court What may differ from the other is in the form of the original
to trial, the prosecutor presented or moved that he be allowed documents and the treatment on the reproduced
to present the contents of the diskette which were claimed to acts(acts?facts?dili kaayo klaro.)
be subversive in character and for this purpose the prosecutor
moved that he be allowed to bring the diskette as well as the
computer and demonstrate the contents by displaying or RULE 2, SECTION 1(h)
printing it out in the presence of the court. That was the
traditional way of presenting electronic evidence at that time. Electronic document refers to information or the
This was objected to by the defense contending that all the representation of information, data, figures, symbols or
while after the seizure of the diskette and other materials, the other modes of written expression, described or however
police have been in full control and custody of the materials so
represented, by which a right is established or an
the possibility that this material has been tampered with or
contaminated is grey. But the SC overruled the objection obligation extinguished, or by which a fact may be proved
contending that the allegation, that just because the state has and affirmed, which is received, recorded, transmitted,
full control and custody of these materials is no argument to stored processed, retrieved or produced electronically. It
prohibit the presentation of the electronic evidence. Meaning, includes digitally signed documents and any print-out or
the contents of the diskette that are alleged to be subversive in output, readable by sight or other means, which
character. So you see, even before we formally adopted, accurately reflects the electronic data message or
enacted the Rules on Electronic Evidence, the court already electronic document. For purposes of these Rules, the
recognized the probative value of electronic evidence. In this term electronic document may be used interchangeably
case, documents stored in the computer diskette. with electronic data message.
Now, we have the USB but it serves the same purpose.
It refers to information or representation of information. Data,
COMMON TYPES OR FORMS OF ELECTRONIC EVIDENCE figures, symbols or other modes of representation however
described or represented by which a right is established,
Electronic images obligation is distinguished or by which a fact may be proved or
affirmed which is (critical part of the definition) received,
recorded, transmitted, stored, processed, retrieved, or
Pelaez Moot Court - Evidence Transcript Team 2015-2016

produced electronically. It includes digitally signed document Original Electronic Document

or outputs readable by sight shown to reflect the data
accurately. Its basically the literal definition of electronic RULE 4, SECTION 1. Original of an electronic document.
document as found on the rules on electronic evidence. An electronic document shall be regarded as the
equivalent of an original document under the Best
What makes it electronic? Evidence Rule if it is a printout or output readable by sight
It is in the process by which it is produced, retrieved, received, or other means, shown to reflect the data accurately.
recorded, transmitted, so on and so forth. The common
denominator of these processes is electronic process. If an output originated from an ordinary paper based
So the transmission, the recording, the storage, the production, document, you have an output originated from an ordinary
the receipt, and so on and so forth must undergo an electronic paper based document, like for ex.: Mr. M has a photograph of
process. If any of these processes is supervened by non- his beloved wife. Using a scanner, the paper based
electronic procedure like manual process, the document is photograph of his wife is now transformed into digital image as
taken out from the context of electronic document. It cannot be stored in the computer and then he displays it proudly. The
considered electronic document. All these processes output there is the image of Mr.Ms wife as displayed in the
mentioned in the rules must be done electronically. Thats what computer screen used as a screensaver. Look at the entire
makes it electronic, the process itself. process. It started with a paper based document (the
photograph). Using the scanning process, its now converted
NPC vs Codilla into digital image as stored in the computer and then the
output, when the image is displayed in the computer screen.
Action for damages filed by NPC against the shipowner which So what is the original electronic document here?
damaged the power barges of NPC at sea. During the trial and
in order to support the claim for damages, NPC presented So if the output is generated from a paper based document,
certain documents, letters and correspondents, computations there three possible original documents there.
for damage caused. These documents were only in their
photocopies when presented and offered formally to the court. 1. Photograph(paper based)
So the other party(the defendant) objected to their admission 2. Digital image as stored in the hard drive of the
on the ground that documents being photocopies are violative computer(original electronic document)
of the best evidence rule. Their exclusion was sought by the 3. Retrieved and displayed in the computer screen
defendant. For its part NPC argued that with the effectivity of (original electronic document)
the rules on electronic evidence, there is no more distinction
between an original and just photocopy because all copies are The first original is the paper based (photograph).Its an
considered or regarded as functional equivalent of the original. original document but ordinary, not original electronic. Its an
The SC was confronted for the first time with the issue as to ordinary paper based. When it is scanned, the digital image
whether the photocopies of these documents are admissible in resulting from the scanning process as it is stored in the hard
evidence under the best evidence rule. drive of the computer, thats another original. Its an electronic
documentoriginal electronic document. And then if it is
SC: Before we would even determine if photocopies are retrieved and displayed in the computer screen, thats an
admissible under the best evidence rule, because it was output readable by sight which reflects the data accurately.
alleged that these are electronic documents alleged to be the Thats another original. Actually, its regarded as original under
functional equivalent of the original, there is a need first to definition of an original document pursuant to Section 1, Rule 4
determine if the documents are electronic in the first place. of the Rules on Electronic Evidence. Its regarded as the
original electronic document. Print out or output readable by
So the SC has to determine whether the documents presented sight shown to reflect the data accurately. So you have three
are electronic documents as defined by the rules. The SC original documents there. One paper based, two electronic.
noted that these documents contain some manual
signatures of the purported senders or responsible authors of What if the output originated from electronic document
these documents. I assume all the documents there are all like Email?
computerized but what makes it NOT electronic is the
presence of manual signature. SC said we cannot see how a Mr. M emailed to his wife, sent it to the wife, wife stored it in
manual signature can be considered as electronic. Its the the hard drive of the computer, either display it or print it out.
manual intervention that negates the electronic character of the Thats also the process of email. The output there is the print
document. SC emphasized that as defined by the rules on out or the data as displayed in the computer screen. Thats the
electronic evidence, a document to be electronic must undergo output but it came from the original electronic document (the
all these processes or any of these processes electronically. It email as produced by Mr. M). So whats the original electronic
is the presence of manual signature which is not an document there?
electronic process that negates the electronic character of The original electronic documents are: the email as produced
the document.
and sent by Mr. M and stored in the hard drive of his wifes
So if you want your official communications or contracts to be computer as stored inside. Its digital data. And then the
considered electronic, to do away with objections under the output is when it is retrieved, displayed, its output
best evidence rules, make sure that the signatures are readable by sight or the print out of the email. Thats the
electronically accomplished. There is so called digital original. All these are regarded as original electronic
signature! Using digital signature will make the document fully documents. So for purposes of the best evidence rule, you
electronic, NOT manual. So even if your document is a dont need to bring your laptop, diskette and have it printed in
computer generated document (you prepared it through the front of the court for demonstration purposes. Thats not
computer and print it out)if you sign the document manually, necessary because under the rules, the print out is regarded
that will NOT make the document electronic. as original. So instead of bringing your computer device, just

Pelaez Moot Court - Evidence Transcript Team 2015-2016

bring the print-out of the electronic document. Thats regarded reproduction or produced by any equivalent
as original for purposes of the best evidence rule. technique that accurately reproduces the original.

Sec. 2, Rule 4 of the Rules on Electronic Evidence So the copies or counterparts falling under the second
type are all reproductions. The reproductions that
RULE 4, SEC. 2. Copies as equivalent of the originals. undergo the process mentioned in the rules
When a document is in two or more copies executed at or electronic, mechanical, chemical or other equivalent
about the same time with identical contents, or is a technique that reproduces the original accurately. So
counterpart produced by the same impression as the under this second category, all reproduced copies of
original, or from the same matrix, or by mechanical or the original electronic document are regarded as
electronic re-recording, or by chemical reproduction, or by original electronic. True enough under the rules on
other equivalent techniques which is accurately electronic evidence, there can hardly be any copy
reproduces the original, such copies or duplicates shall be because copies are regarded as originals. So taking
regarded as the equivalent of the original. cue from this concept and definition of originals as
defined under the rules on electronic evidence, it
Notwithstanding the foregoing, copies or duplicates shall would appear that your books, newspapers,
not be admissible to the same extent as the original if: magazines, these are reproductions of one original
electronic document as produced by the author.
(a) a genuine question is raised as to the authenticity of These are just counterparts, copies reproduced
the original; or through either mechanical, electronic or other
equivalent technique of reproduction.
(b) in the circumstances it would be unjust or inequitable
to admit a copy in lieu of the original. So you prepare a pleading for example, you only have
one electronic document as stored in your computer.
There are certain copies or counterparts which are equally Thats original, the digital copy of your pleading as
regarded as originals. Take note: COPIES, stored in the hard drive of your computer. Thats
COUNTERPARTS, regarded as ORIGINALS. This is where original. But pursuant to Sec. 1 of rule 4 of the rules
the rules on electronic evidence differ from paper-based. So on electronic evidence, the print out of that pleading
we have now a reproduced copy of the original electronic or the output readable by sight is regarded as original.
document but under Sec. 2, rule 4 regarded as functional So you have a print out now. Thats regarded as the
equivalent of the original and therefore, can be presented in equivalent of the original electronic document. Now
court without having to account for the original. So what these what happens if out of this one print out, you have it
copies or counterparts regarded as original? reproduced a hundred or thousand times by
mechanical, chemical or other equivalent technique of
1. When the electronic document is in two or more reproduction. Under Sec. 2 of Rule 4, all these
copies executed at or about the same time with reproduced copies undergoing the processes
identical contents, all the copies are regarded as mentioned are also regarded as equivalent of the
original. The same concept of original document as original.
provided for under the rules of court relating to
ordinary paper based document. MCC Industrial Sales vs. Ssanyong Corporation

Ex.: Mr. M prepared an email for his beloved wife, One of the leading cases in electronic evidence particularly
sent it to the email account of his wife. Mr. M wanted electronic document. This involves a transaction between MCC
to let the whole world know. And so, other than sales and Ssanyong. One is based in Korea. MCC is based in
sending the love letter email to the email account of the Phils. MCC sales entered into contract with Ssanyong.
the wife, he also sent Cc to all his friends in his Ssanyong would supply steel materials to MCC Sales.
directory. So there was only one original electronic
In the past and as always been their practice, their transactions
document, the email prepared by Mr. M but there were done through facsimile communication. The practice was
were so many copies as there are accounts to which for MCC Sales to send a fax copy or fax transmission of the
he sent the copies. order and then in turn, Ssanyong would send facsimile
transmission indicating acceptance. So everything was done
If theres dispute involving the contents of the love through exchange of facsimile messages.
letter, because this calls for the application of the best
evidence rule, the proponent can present any of Alleging breach of contract, one party filed a suit against the
those hundred copies without having to account other. In order to prove the existence of their transaction,
for the one sent by Mr. M to his wife supposed to plaintiff presented a photocopy of the facsimile copy of
be the original. It was the copy intended for the the purchase orders issued in relation to the transaction in
addressee. The rest are only Ccs. But under this question. The admission of the photocopies of the facsimile
definition, all these other copies executed at or copy.
about the same time with identical contents are
regarded as original. Take note: there was a facsimile copy as received. This
facsimile copy is photocopied. The photocopies are presented
2. A copy is considered or regarded as original if it is a as evidence in court. Objected to under the best evidence rule,
counterpart produced by the same impression as the proponent argued that its under the rules on electronic
the original, or produced by the same matrix or evidence these photocopies are regarded as functional
produced by mechanical or electronic rerecording equivalent of the original electronic document.
or produced by mechanical or chemical

Pelaez Moot Court - Evidence Transcript Team 2015-2016

Again, consistent with NPC vs. Codilla, the SC had to first machine or facsimile process is not included
determine if the documents in question were in the first place in the definition of electronic data message or
electronic in character. In this case, SC said that the facsimile electronic document.
copy of the purchase order involved is NOT an electronic
document. Its a copy resulting from the process called 2. The whole purpose of the E-commerce Act or
facsimile transmission. Facsimile transmission is a process the Rules on Electronic Evidence is to
that involves an ordinary paper based document or data or promote paperless writings as functional
information which is scanned and then transmitted using a equivalent of ordinary paper based document.
telephone line to the receiving party and printed at the So its the promotion of paperless environment.
receiving end, and then resulting in a facsimile copy. Now this purpose can hardly be achieved if
facsimile copy is to be considered as electronic
In other words, SC said the process of facsimile transmission because the facsimile transmission involves a
involves two paper based documentsthe paper based process where there is an original paper based
document or data as sent from the sending party and another document as sent and another paper based
paper based facsimile copy as received. So thats the scenario facsimile copy as received.
painted by the SC describing the process of a facsimile
transmission. So how did the SC address the question of So the presence of these two paper based
whether the facsimile copy of the purchase order can be documents, the sent and the received copies,
considered as electronic? negates the purpose of the electronic
evidence rules. It is NOT paperless. It is
SC said it is NOT electronic because of the following two
paperFULL(hehehe). So the SC justified its ruling
that the facsimile copy cannot be considered as
1. Document in question is not electronic by electronic. But take note, in that very same case,
invoking the definition of electronic document the SC made a distinction between a computer
or electronic data message. And in doing so, generated fax machine from the ordinary
the SC went on so far as to trace the history of traditional fax machine. The one involved in this
our law or rules on electronic evidence. case is the traditional (the obsolete, the earlier
generation of fax machine) where it involves two
The SC said that our concept of electronic paper based documents, the first paper based
evidence, which is interchangeably used in the document as sent and another paper based
same manner as electronic data message, traced facsimile copy as received.
its origin in the UN CITRAL (United Nations
Commission on International Trade Law) Model The way the SC described a computer generated
law. According to the UN CITRAL Model law, fax machine is that this is a kind of a facsimile or
electronic data message or electronic documents fax machine which would not originate from a
has been defined in such a manner that it paper based document but electronic. So its a
includes the process known as telecopy. Their process that starts with electronic. The SC made
own definition of electronic data message or mention of this specific type of fax machine.
electronic document includes process known as
telecopy. Telecopy means the transmission of So obviously there, it refers to a computer
messages from one place to another using generated data or document sent from one end
facsimile machine. So fax machine. When we talk to the other. So if copy of the fax machine
about telecopy, the machine involved there is originated from a computer generated fax
FAX MACHINE. machine, SC said that is electronic. So the
scenario painted by the SC is so long as the
The SC noted that, while our own rules on source document is not paper-based, the
electronic evidence basically patterned from the resulting facsimile copy is electronic.
model law adopted, our own definition is NOT
Question: Received an email, printed it out and the print out is
really perfectly or totally the same as it is being sent through fax
defined under the UN CITRAL Model law. In our
own definition of electronic data message or Sir: So it involves scenario similar in Ssanyong. There are two
electronic document, the framers of the law paper based documents there.
omitted that portion which includes the
process of telecopy. It is no longer found in our Q: Not necessary that it originates in handwriting?
own definition of electronic data or electronic
document. Sir: If you look at Ssanyong, the SC merely said that the
source document there is paper based (the purchase order).
So how does the omission impact on the SCs
interpretation of the rule? SC said the omission The SC mentions the facsimile transmission process there.
of telecopy as part of the definition of And the circumstance that prompted the SC to conclude that
electronic data or electronic document its not electronic is the fact that the document started with
paper based and ended with another paper based.
indicates the intent of the framers to exclude
facsimile copies or to exclude documents In Ssanyong, it is not indicated there whether the purchase
produced by facsimile transmissions from the order was manually prepared or also computer print out. Its
concept or context of electronic document or possible that its computer print out. You dont do manual P.O.
electronic data. So its a simplistic interpretation. now. If that P.O. was manually signed then its obvious that its
SC in resolving that the facsimile copy is not paper based. But what if it was a computer print out and then
an electronic document because facsimile
Pelaez Moot Court - Evidence Transcript Team 2015-2016

sent to the other end using ordinary fax machine? Because the Just to be safe(this is far from being settled), for our purposes,
SC did not dwell on the nature of the original, the first our approach is to answer questions on a case to case
document sent. It only said that its paper based. It did not depending on the facts involved. If the process involves
indicate why it concluded or it considered it paper based. Is it facsimile, then Ssanyong ruling. If scanning, you invoke
paper based because it was physically a paper without regard Chatu, Maliksi and other cases because the process there
to the technical definition of print out as electronic document? is specifically scanning, NOT facsimile. But if you look at
Sec. 4(Sec. 4 iya ingon but I think RULE 4 iya pasabot), it is an
We can understand that the source document is electronic all-encompassing provision. It includes any and all copies or
because the data, information is prepared through computer. counterparts reproduced from the original using these
But what Im asking is whether this is transmitted now to the techniques.
other receiving end, will this result in facsimile copy which is a
physical paper. If you look at Sec.2 of Rule 4,newspapers and books are
regarded as original.
(Another question dili madungog kay saba.Something to do
with photocopied ID.) Question about photocopying(hinay tingog)

Sir: This is what the Ssanyong doctrine is trying to establish Sir: You argue under Sec. 2. It says there copy or counterpart
that if document starts with a paper-based(something physical, of the original electronic document. That is an original
paper) and ends with another physical paper, thats NOT electronic document It is broad enough to include any form
electronic because this negates the concept of paperless of reproduction so long as the reproduction is accurate.
writing. But if you look at Sec. 2, Rule 4 where copies or
counterparts are regarded as original, this speaks of copies or
counterparts which are results of reproduction process.
Mechanical or electronic rerecording, chemical reproduction Authentication of Electronic evidence.
and other equivalent technique that reproduces the original
If you fail to authenticate, the court may likely exclude or
accurately. So if the electronic document is reproduced
disallow your evidence.
through this processes, the resulting copy is regarded as
original. The rule on authentication of electronic evidence depends on
So what happens now if you prepare a letter for example or a what kind of evidence the proponent presents in court. If
document through your computer and then you print it out,you offered as electronic document, follow the rule on electronic
have a print out. Under Sec. 1 Rule 4, this is regarded as document. If it is an object, exhibit it to the court to be viewed,
original. Now what happens if you fax this? What happens to examined by the court and if offered as object electronic
the resulting facsimile copy printed at the other end( receving evidence, should accordingly follow the rule in authenticating
end)? If you look at Sec. 2 of Rule 4, its regarded as original electronic object evidence.
because its a reproduction. But again, if you use facsimile, the How do you authenticate evidence offered as electronic
old one, the traditional one, then we will have a problem with document?
the first justification of the SC which is the exclusion of
facsimile transmission in the definition of electronic document. 3 Modes of Authentication
Because the process there is singled out. The facsimile
transmission process is being singled out. So maybe, if it is 1. That the electronic evidence is digitally signed by the
scanned (scanning is different from facsimile), you have a print person purporting to have signed it.
out of the document, you scan it, you store it in the computer
and then you print it. This is scanning. And based on Sec. 2 of -relevance of the digital signature
Rule 4, this is a counterpart, a copy, a reproduction of the print
out. Thats regarded as the original. All the print out 2. By evidence that some other security procedure or devices
reproduced into a hundred times using photocopying machine. as may be allowed by the SC or by law for authentication of
Its still a reproducing technique. Chemical reproduction. Under electronic document have been applied to the document.
Sec. 4, the reproduced copies of the print out are considered
or regarded as the original. -prove that a particular security procedure was duly
You read the cases of Maliksi, Chato, all those cases
involving election protest. The SC made a definitive ruling 3. By any other means so long as it is established to the
there that print outs(the ballots) captured by the PCOS satisfaction of the court that the electronic document, the
machine(PCOS involves scanning process). PCOS captured reliability and integrity are preserved.
the digital image of the ballots. Take note: The ballots are
paper based, fed to the PCOS machine, converted into digital -The third mode is a general mode of authenticating. Just
image stored in the PCOS. In case of dispute that requires make sure you are able to convince the court that the reliability
recount, print out. You have another paper based. Meaning, and integrity of the document are intact.
paper based in the sense that it is physically paper. According Authentication of Object Electronic Evidence
to the SC, the print outs of the ballots coming from the PCOS
are electronic documents. Yet, this started with a paper based (ex. Audio recording, video recording)
ballot that went through the process of scanning. So this is now
in contrast to Ssanyong. Only that in Ssanyong, the process If these are offered to the court the purpose of the court to
involved there was facsimile. This time, scanning. I dont know view or hear it. These pieces of evidence are considered
how scanning process differ from facsimile transmission object. Electronic evidence can either be electronic or object.
process. And I dont know if there be difference at all. I dont
know if that difference is relevant at all in the determination of Ephemeral Electronic Communication
whether the document is electronic or not.
Pelaez Moot Court - Evidence Transcript Team 2015-2016

So how do you authenticate digital images or audio recording. considered electronic, all processes must be electronic.
This can be authenticated by a competent witness being the However, what differentiates an electronic document from a
one who took the recordings or by any person familiar with the paper-based document is the manner by which the information
event or transaction captured in the recording. More or less is processed; clearly, the information contained in an electronic
similar to demonstrative evidence. Not only by the one who is document is received, recorded, transmitted, stored,
responsible for taking the photograph or recording but also by processed, retrieved or produced electronically.
any witness who can attest to the fact or veracity of the image
depicted or the recording. Attune yourself with the changing times, learn how to sign
digitally to avoid difficulty in authentication of electronic
Ephemeral electronic communication- refer to telephone evidence.
conversations, now under this rule considered of a special kind
which is ephemeral electronic communication. Because by For our purposes, to be safe, take cases as they are, the basis
their very nature because evidence of these kind are not stored the existing jurisprudence. If the facts are more or less in one
or retained. decided case, you just have to tailor your answer in
accordance with the SC decisions.
Ex. Text messages, chat session, streaming video/audio
So the rules on the decided cases, you cant be wrong with
How do you authenticate? decided cases daw!

By a witness who is a party to the communication and anyone If involves scanning: Malik and Chato case
who is competent who has personal knowledge of the
communications. If fax: Sangyong case

CASE: People v Noel Enojas If neither: Rely on the provisions, Rule 4, Section 1 and 2

TN: Expected to come out in the bar! PAROL EVIDENCE

Involves authentication of text messages. Applies to documentary evidence. This rule is irrelevant to
object and testimonial. Before applying PER, you need to
First doctrine: SC made a ruling that rules on electronic determine first if the document or writing offered is offered as
evidence apply to criminal cases. documentary evidence.

Second doctrine: Procedure in authenticating ephemeral Spelled as P-A-R-O-L, without an E.

communication like a text message.
Under the rules, when the terms of an agreement have been
This involve a robbery where one of the participants was a taxi reduced into writing, it is considered to be containing all the
driver. After the robbery the taxi driver got caught along with terms agreed upon and there can be the parties and the
his cellphone. The police took possession go the cellphone successors-in-interest no evidence of the such terms other
and the police who has custody of the cellphone noticed that a than the terms in the written agreement.
text message came in. It turned out that the text message
came from the other co-conspirators. PER comes into operation when there is dispute as to the
terms and conditions of a written agreement.
So the police who was in possession of the cellphone,
pretended to be the owner of the cellphone and proceeded to BER v. PER
exchange messages with the other party. This led to the police
More or less the same with BER. BER applies when the
setting up an entrapment operation which eventually led to the
subject of inquiry is the content of the document. Do not
capture of the other party.
confuse one with the other. Do not invoke PER when the
During the trial, one of the pieces of evidence presented was proper ground for objection is BER. Although in most cases, if
the text messages saved/stored in one of the cellphones of the not all cases, when the question calls for PER, chances are it
suspects. But this was authenticated by the policeman who also calls for the application of the BER because PER
took possession of the cellphone and who exchange presupposes the BER. Before you apply the PER you have to
messages with the other suspects. His testimony, in so far as pass the test of BER.
to authenticate the text messages found in the cellphone on
PER prohibits the admission of evidence other than the writing
the ground of lack of authentication because according to the
on the agreement itself. BER prohibits any other evidence
accused, he(policeman) was not the owner of the cellphone
other than the original. So the line is so thin between the two.
where the text messages are found.
In the actual real time, these two interplay in a given situation.
SC ruled that for ephemeral electronic communication like a
text message, authentication can be done by a party to the
conversation or by anyone who has personal knowledge of the There is a contract of sale involving Lot A, the Plaintiff say the
communication. The policeman very well, falls either. He was a property sold is LOT A, but defendant says the subject of the
party to the communication and in fact pretended to be the contract is Lot B. There is a dispute as to the terms of the
owner of the cellphone. SC said, there was proper contract of sale. The contents of the contract are the subject of
authentication and therefore, admissible. inquiry as there is a dispute as to the precise contents of a
writing. So this calls for the application of both.
Question: If there was a print out then signed, is it still
considered electronic document? Under BER, the original contract of sale, not photocopy or
testimony. Under the PER, no other evidence is admissible
(Codilla case) If there was manual intervention in a printed
other than the contract itself, not other document or testimony.
document, no longer electronic. According to Codilla, to be
You need to submit the original that will answer the question
Pelaez Moot Court - Evidence Transcript Team 2015-2016

on what really is the content of the document and what is the (TN: PER applies only if the document contains or constitutes
agreement. Almost all cases they interplay but applied in a a contract or agreement as distinguished from mere statement
different sense. of facts. The BER applies to all forms of writing containing
words, symbols, figures or other forms of written expression
Not only oral evidence is prohibited offered as proof of their contents whether this writing or
material constitute a contract or mere document that contains
TN: Parol, literally means oral. For purposes of parol evidence
writing, not necessarily contract. But PER specifically applies
rule, what is prohibited is not only oral but any form of evidence
only if that document constitutes a contract. There are parties,
outside the four corners of the written agreement, be it oral or
subject matter and obligations.
1. If it merely contains statement of facts, PER cannot be
Reason behind the rule: When there is conflict between a invoked to disallow evidence to explain, clarify or modify
writing and a testimony of a witness.The law presumes the the contents of the document.
document is more reliable than the testimony of a witness who
is testifying only on the basis of his memory. Its a universal CASE: Cruz v CA
fact that human memory fails/treacherous, unlike a written
contract which do not lie. Mr Cruz was sued by Salonga for sums of money arising from
alleged loan obligation. The loan transaction according to
Presupposes written contracts Salonga was purpotedly evidenced by a receipt signed by Mr.
Cruz stating that received the amount of P35,000 from Mr.
PER presupposes the existence of a written contract or
Salonga. I promise to pay within this period. Signed Mr. Cruz.
agreement. What is excluded under PER, whether an oral or
otherwise, which would vary, contradict or modify the terms of During the trial, Mr. Cruz tried to introduce evidence that while
the written agreement. Anything that would change the terms he may have signed the acknowledgment receipt appended to
are not admissible. the appendix of the complaint of Mr. Salonga, it was not
actually a loan. The amount that he received, as evidenced by
Not even a testimony of a witness who claims he was present
the acknowledgment receipt was not a loan obtained by him
in the execution of the contract.
from Mr. Salonga but on the contrary, it was a payment from
The basis here is the nature of agreements. Agreement Mr. Salonga arising from their other contract.
presuppose certain stages called as the negotiating stage
Two contracts,the first was for the purchase of fish products
where parties propose, offer and the other counter-offer,
which were produced by the fishpond leased by Mr. Cruz and
counter-propose. There may be some terms and conditions
the second, was their sublease agreement where Mr. Salonga
agreed upon, others rejected until they come up with the final
sublease from Mr. Cruz the fishpond from Mr. Cruz the Mr.
agreement. This final agreement is embodied in that written
Cruz leased from a certain Mr. Yabut. The testimony of Mr.
contract or agreement. So that any other terms and conditions
Cruz to establish this elleged transaction was objected to
which could have been discussed in the negotiation but is not
under PER because accordingly this would tend to vary the
included in the final contract, those were all considered
terms of the acknowledgment receipt.
rejected and abandoned by the parties. So the agreement
should be tested on what is found in the four corners of the But SC rejected the argument contending that PER applies
contract. only if the extraneous evidence tends to vary, contradict or
modify the terms of a written agreement, meaning a contract.
The acknowledgment receipt simply contained a statement of
CASE: Yu Tek and Co. v Gonzales fact that certain amount was received by someone from
another. So the testimony tending to explain was allowed there
This involves a contract between Yu Tek and Co. and Mr. being no application of the PER.
Gonzales where Mr. Gonzales undertook to deliver to Yu Tek
and Co. piculs of sugar for stipulation and within a stated 2. PER is premised on the rule that contracts are only
period but Mr. Gonzales failed to comply. binding upon the parties thereto. Consequently, PER
applies only to the parties. It cannot be invoked against a
So Yu Tek and Co. Demanded for the return of the money it non-party to the contract.
paid to Mr. Gonzales, for breach of contract. In his defense,
Mr. Gonzales tried to prove in court that the sugar that Mr. CASE: Victory Lechugas v CA
Gonzales undertook to deliver should be sourced from his own
Vicky Lechugas filed a case for ejectment which was
sugar plantation.
dismissed. Lechugas appealed it to the RTC and during the
Unfortunately, the contract does not specify the source of the pendency of the appeal, Vicky Lechugas filed a suit for the
sugar that he is to deliver. It merely states that Mr. Gonzales recovery of the same piece of land against the same
for a certainn consideration promises to deliver to Yu Tek and defendants. Eventually these two cases were consolidated.
Co. Certain piculs of sugar within a stipulated period. Nothing
During the trial, presented Leoncia Lasangue who testified in
is mentioned about the source of the sugar.
court that she was the one who sold properties to the
SC said, the testimony of Mr. Gonzales, to the effect that the predecessors-in-interest of the defendants as well as to the
sugar should be sourced from his own sugar plantation tends plaintiff Vicky Lechugas. But Leoncia clarified that while the
to vary, contradict and modify the terms of their written deed of sale executed in favor of Vicky Lechugas mentions lot
contract. And this is precisely what is prohibited by the PER. A, what she actually sold to Vicky Lechugas was Lot B. So
that, Vicky Lechugas is claiming a different lot. The one
occupied by the defendants is not the lot that Vicky Lechugas
bought from Leoncia Lasangue. Obviously, the testimony of
INSTANCES THE RULE DOES NOT APPLY: Lasangue tends to vary the terms of the deed of sale. The
Pelaez Moot Court - Evidence Transcript Team 2015-2016

deed says Lot A, she says Lot B which was objected to parol evidence. These would vary, contradict or modify the
pursuant to the BER. terms of the deed of sale. According to the heirs of Mario
Pacres, they are not parties to the deed of sale. The deed of
But SC overruled the objection holding that PER is applicable sale was only executed by the 4 children who sold their
only to the parties, can be invoked only against the parties to a respective shares and Ygona as the buyer. Mario, their
written agreement. So that when atleast one of the parties to predecessors-in-interest did not sell his interest.
the suit is is not a party to the written agreement, PER cannot
be invoked to prohibit introduction of evidence that would tend But SC said, by filing the action for specific performance to
to vary, contradict or modify the terms of the written compel the heirs of Ygona to comply with the alleged
agreement. In this case, the defendants were not parties to the conditions, they are in effect claiming to be the parties of the
sale between Lechugas and Lasangue. Therefore, PER cannot Stipulation Pour Autrui. Third party who stands to benefit from
be invoked by Lechugas against the defendants to introduce a stipulation agreed upon by other parties and therefore,
evidence. according to SC, being beneficiary of Stipulation Pour Autrui,
then they are deemed parties to the written deed of sale and
What makes a party a party to the written agreement? therefore, they cannot resist the application of the PER simply
Does his name need to be stated in the contract? Does her because their names are not found in the written agreement.
signature be found to the contract?
Gaje vs. Vda. De Dalisay
No, does not only refer to those who signed and participated in
the execution of the written agreement but parties in This involves a piece of land owned by the father, Desiderio
contemplation of PER includes those who are not directly Dalisay Sr. (Senior). During his lifetime, he bought a parcel of
participants in the execution of the written agreement. But land from a third party but the name of the buyer in the deed of
either, they based their claim on the document or agreement or sale was indicated to be Desiderio Dalisay, Jr.(Junior) , not the
assert a right originating in the document or the stand to Senior, who was the real buyer.
benefit from the stipulation or conditions of a contract -
stipulation pour autrui. Stipulation pour autrui is a stipulation in After execution of deed of sale, Senior took possession of the
favor of a third party. According to SC, a beneficiary of a property and cultivated it until he died. Junior sold the property
stipulation pour autrui is deemed party to the contract and to another. The buyers now are the defendants of the case.
therefore bound by PER. The widow, Patricia Vda. De Dalisay, as administratix of her
late husband Senior, filed an action to recover the property that
CASE: Heirs of Pacres v Cecilia Ygona Junior sold.

TN: Expected to come out in the bar! During the trial, testimony of Patricia (that the real buyer is
Senior, and that the name of Junior as buyer was only resorted
to for convenience) was objected to pursuant to the Parol
Evidence Rule because it tends to vary, modify and contradict
This illustrates the principle that a party who claims benefit
the terms in the written deed of sale showing Junior as the
under a stipulation pour autrui is deemed to be a party and
therefore cannot resist the application of PER.
SC overruled the objection. Parol Evidence Rule applies only
This case involves a piece of land originally owned by the
between parties to the contract. In this case, the deed of sale is
parents. When the parents died, the property was inhered by 6
between the sellers and Junior. Patricia, is not a party to the
children. Subsequently, 4 of the children sold their shares to
written deed of sale. Therefore, Junior cannot invoke Parol
Cecilia Ygona, the 2, Mario Pacres included, did not sell their
Evidence Rule to prevent Patricia from introducing evidence to
shares. Some time later, Mario and his sister died, as well as
modify, explain, and vary the terms of the written agreement.
Cecilia Ygona died. The heirs of Cecilia Ygona succeeded her.
3. If the parol evidence is offered to establish the
Claiming that Cecilia Ygona during her lifetime, failed to existence of a prior or contemporaneous agreement which
comply with the conditions agreed upon during the time when is independent or separate from the written agreement,
she purchased the shares of the 4 children of the original Parol Evidence Rule does not apply to prevent the
owner. The heirs of Mario Pacres and his sisters heirs filed a introduction of evidence to establish such prior or
suit for specific performance to compel heirs of Ygona to contemporaneous agreement. (Collateral Agreement Rule)
comply with the alleged oral conditions.
Parol Evidence Rule prohibits extraneous evidence that would
The oral conditions were supposedly agreed upon by Cecilia
tend to vary, contradict, or modify the terms of the written
Ygona and the heirs who sold their shares to her. These
agreement. So that if evidence does not vary, modify, or
alleged conditions or undertakings include to cause the survey
contradict the terms, the rule does not apply.
of the entire lot, pay the present and the past taxes due, obtain
separate titles over the respective shares of the heirs and Robles vs. Lizzaraga-Hermanos
deliver the title to the respective heirs. These conditions
according to the heirs of Pacres, the plaintiff, were not Supreme Court enunciated the Collateral Agreement Rule
complied with by Ygona so they now ask the court to heirs of
Ygona to comply. This involves a contract involving Hacienda Nahalinan
originally owned by the father, Zacarias Robles Sr. (Senior).
The problem was these conditions were not included in the When Senior died, his estate was succeeded by the heirs and
deed of sale between the 4 children who sold theirs shares to administered by the widow, Anastacia de la Rama.
Ygona. The deed of sale simply conveys their shares to the
buyer Cecilia Ygona. The conditions allegedly agreed upon During her administration, the widow leased the property to her
were not included. Evidence were introduced to establish to son, Zacarias Robles Jr, (Junior) for a period of six years. The
these alleged oral conditions were objected to on the ground of hacienda was already in its dilapidated state. They agreed that

Pelaez Moot Court - Evidence Transcript Team 2015-2016

Junior would introduce improvements on the property and 4. Existence of another term agreed upon by the party after the
install farm equipments on the property at his expense. execution of the written agreement

During this time, Lizzaraga-Hermanos offered to buy Hacienda Rule on Materiality

Nahalinan and all the estate left by Senior and Anastacia
(Robles couple) who also died, leaving the estate to their The exceptions can only be invoked if the parties seeking to
children. A contract was entered into by three of the six introduce the parol evidence by way of exception properly
children including Junior, selling the all the properties forming plead these exceptions as issues in the pleading so that
part of the estate of the Robles couple to Lizzaraga-Hermanos. court acquires jurisdiction and evidence will be allowed to
prove or disprove the issue raised in the pleadings.
But it was alleged that at the time of the transaction, the lease
contract between Anastacia and Junior had still a remaining Remember the rule of materiality. If evidence is offered to
period of three years, so to sweeten the offer of Lizzaraga- prove a fact not in issue, it is immaterial. If you are the plaintiff
Hermanos, it was agreed that he would compensate Junior for and want to vary the terms of the written agreement, for
the value of the improvements and the farm equipments and example, you have a deed of sale and you believe that it does
implements that he installed. This alleged oral agreement was not reflect the true intention of the parties because the true
not embodied in the written deed of sale between the heirs of intention was only a simple loan agreement. In order to invoke
the Robles couple and Lizzaraga-Hermanos. the exception and introduce parol evidence to establish the
real agreement, you need to allege it in your complaint. You
Contending that Lizzarag-Hermanos failed in his undertaking to are now making it as an issue since the other party will deny it.
compensate Junior for the value of the improvements, he filed During the trial, you can now present testimony or other
a suit. Junior tried to prove during the trial that Lizzaraga- extraneous evidence that will establish that the deed of sale
Hermanos agreed to reimburse him the value of does not reflect the true intention of the parties. So even if the
improvements. This oral extraneous evidence was objected to testimony of the witness will vary, contradict or modify the
based on the Parol Evidence Rule since such agreement was terms of the deed of sale, which is allowed.
not embodied in the written contract of sale.

If you are the defendant, and plaintiff files an action on the

SC overruled the objection. Parol Evidence Rule applies if it basis of and deed of sale and you believe that it does not
tends to vary, modify, or contradict the terms of a written reflect the true intention of the parties. In you answer, alleged
agreement. If the parol evidence tends to establish an that the deed of sale is not reflective of the true intention of the
independent and separate oral agreement which was agreed parties. Parol evidence may be introduced during the trial.
upon prior to or contemporaneous to the execution of the
written agreement, the Rule does not apply because if that 1. Intrinsic ambiguity, mistake or imperfection in the
prior or contemporaneous oral agreement is independent from written agreement
the written agreement then it cannot be expected to produce
the effect of varying, modifying, and contradicting the terms of Intrinsic ambiguity- an ambiguity that cannot be determined on
the written agreement. the face of the written document

In this case, the written deed of sale only involves the Palanca vs, Wilson & Co.
properties that the children inherited from their parents
meaning it was by reason of succession but the oral Palanca was the manager of Song Fo & Co, a business
agreement which was entered into contemporaneously with the enterprise engaged in manufacturing of liquor. In pursuit of its
written agreement involves the property that Junior own in his business, Song Fo & Co, through Palanca entered into a
own capacity, not inherited from his parents because such contract with Wilson & Co. for the supply and installation of a
improvements were introduced at his own expense when he distilling apparatus. In the contract, it was agreed that Wilson &
leased the property. Co. had to deliver distilling apparatus with a capacity of 6K
litres per day. True enough, Wilson & Co. delivered and
The doctrine here is: If the parol evidence is offered to installed a distilling apparatus.
establish the existence of a prior or contemporaneous
agreement which is independent or separate from the written But when it was tested, Song Fo & Co realized that the
agreement, Parol Evidence Rule does not apply to prevent the apparatus did not produce 6K litres of alcohol per day. For its
introduction of evidence to establish the other prior or part, Wilson & Co. argued that it would not produce 6K litres of
contemporaneous agreement. alcohol per day because the agreement was for a distilling
apparatus with a capacity of 6K litres per day, meaning a
EXCEPTIONS TO THE PAROL EVIDENCE RULE apparatus which has a TREATING capacity of 6K litres per day
of raw materials. The plaintiff says 6K litres of finished product,
Apart from instances when Parol Evidence Rule does not alcohol. The supplier says 6K litres of raw materials. But the
apply, the rule itself provides for exceptions to the application contract only plainly says a distilling apparatus with a capacity
of Parol Evidence Rule. of 6K litres per day, without reference whether it pertains to
treating capacity or producing capacity.
1. Intrinsic ambiguity, mistake or imperfection in the written
agreement Obviously, this involves intrinsic ambiguity in the written
agreement. Because looking at the face of the contract, you
2. Written agreement does not express the true intention of the cannot ascertain the true intention of the parties.
SC had to rely on extrinsic evidence, evidence other than the
3. Validity of the written agreement terms of the contract:

Pelaez Moot Court - Evidence Transcript Team 2015-2016

1) SC resorted to the dictionary. Capacity normally refers to objected, arguing that foreclosure is premature. It is premature
capacity to contain or treat. On this score, the 6K litres because the payment of balance is conditioned upon the
stipulated in the contract must refer to capacity of the construction of feeder roads which was not complied by
apparatus to treat 6K litres per day of raw material. Enriquez. This was pleaded in the answer of Ramos as his
2) SC took note of the evidence introduced in the trial that the
prevailing rate for distilling apparatus with a producing capacity During trial, Ramos presented parol evidence to establish the
of 6K litres per day of finished product range from 35K to 40K. existence of such pre-condition. This was objected to since
The contract between Song Fo & Co. and Wilson & Co. only such condition was not incorporated in the written contract of
involved 10K. SC said that the parties could not have agreed to sale with mortgage although Ramos insisted that it was due to
a producing capacity of 6K litres per day. It is beyond the the insistence of the lawyer for Enriquez that the condition was
prevailing market price. be omitted from the contract.

2. Written agreement does not express the true The issue was whether or not the testimony of Ramos tending
intention of the parties to establish the existence of a condition precedent before
obligation to pay would arise is admissible in the light of the
Land Settlement and Development Corporation Parol Evidence Rule.
(LASEDECO) vs. Garcia Plantation
SC said the Parol Evidence Rule has exceptions such as when
Lasedeco filed an action for the collection of the unpaid the party pleads it as an issue in the pleading that the written
balance of the purchase price of two tractors purchased by agreement does not reflect the true intention of the parties. In
Garcia Plantation. Garcia Plantation interposed the defense the answer, the party pleaded it as an issue that there was a
that the filing of the action was premature because they were condition precedent and therefore the Parol Evidence Rule
granted a grace period within which to pay the balance. In cannot be invoked to exclude extraneous evidence.
support of its defense, the defendant submitted to the court a 3. Validity of the written agreement
copy of the letter signed by the manager of the board of
liquidators (since Lasedeco was under liquidation). In that The Parol Evidence Rule presupposes the existence of a valid
letter, the manager stated that the defendant is given a grace written agreement so that if it is alleged by the parties that the
period to pay the balance of the purchase price, pursuant to a written agreement is not valid, then Parol Evidence Rule
meeting between Lasedeco and the Garcia husband. cannot be invoke to exclude extraneous evidence that would
In their reply Lasedeco pleaded it as an issue that the letter show precisely the fact the written agreement is invalid.
does not reflect the true intention of the parties in so far as the Heirs of Ureta vs. Heirs of Ureta
grace period in concerned. During the trial, Lasedeco
presented the manager and legal counsel of the board of A prolific father, Alfonso Ureta, sired 14 children. One can only
liquidators to prove that while it is true that the board granted a admire the industry of this man. Anyway, he had a meeting
grace period, this period was premised on a condition that the with 4 of his children. One was an MTC judge. They discussed
defendant should pay a substantial downpayment, which the how one could avoid from paying sizeable estate taxes. Maybe
defendant failed to comply. Therefore, the grace period was Alfonso was already anticipating imminent death. Upon the
not granted. That was the true agreement but such agreement suggestion of his son who was a judge, they resorted to
was not embodied in the letter. The testimonies of the two simulated deeds of sale purporting to show that some of the
witnesses were objected to under the Parol Evidence Rule properties were sold o some of the children. Six of these
since it would vary, contradict and modify the terms of letters. properties were made to appear as having been sold to
Policronio for purposes of avoiding payment of taxes.
SC said the Parol Evidence Rule provide for exceptions such
as when it is pleaded as an issue that the written agreement Alfonso and Policronio died. Heirs of Alfonso executed an
does not reflect true intention of the parties. By filing the reply extrajudicial partition of the estate including the six parcels of
and pleading it in the reply that the letter does not reflect the land subject of the simulated deeds of sale in favor of
true intention of the parties, Lasedeco was invoking the Policronio. The children of Policronio found that in the records
exception. They cannot now be prevented from introducing in the city assessor, the tax declarations covering the six
parol evidence to modify or vary the terms of the written parcels of land were in the name of their father, Policronio.
agreement. Insisting that they are the owners, they asserted their right over
the property.
Enriquez vs. Ramos
They contend that the properties should not be included in the
Socorro Ramos, the owner of National Bookstore, purchased extrajudicial settlement of the heirs of Alfonso. A suit was filed.
hundred pieces of land from Enriquez. The twenty parcels of It was alleged in the pleadings of the heirs of Alfonso that the
land were intended to be converted into subdivision lots. Since deed of sales were made only to avoid payment of taxes, this
Ramos did not pay the entire purchase price, they entered into was never meant to transfer ownership to Policronio.
an agreement that the remaining balance be paid when
Enriquez would be able to construct feeder roads that would During the trial, one of the children of Alfonso, testified that the
provide access to the subdivision lots. deeds of sale executed by Alfonso to Policronio was simulated.
This was objected to on the ground of Parol Evidence Rule
As security for the payment of the balance, the parties entered because this alleged agreement to avoid payment of estate
into a written agreement denominated as a contract of sale taxes was not incorporated in the deeds of sale.
with mortgage where Ramos, the buyer would mortgage the
same parcels of land to guarantee payment of the purchase SC said that the Parol Evidence Rule provides for exceptions
price. Alleging that Ramos failed to pay the balance, Enriquez among which is when the parties pleads it as an issue in the
instituted an action to foreclose the mortgage. Ramos pleading the validity of the written agreement which the
Pelaez Moot Court - Evidence Transcript Team 2015-2016
children of Alfonso did in the case. Being an exception, the The 3 classification of evidence on the matter of form is
testimony tending to prove the existence of the agreement to testimonial evidence.
avoid payment of estate taxes may be allowed without violating
the Parol Evidence Rule. Testimonial evidence is loosely defined as evidence lifted from
the mouth of the witness. But this is not the accurate definition.
4. Existence of other terms agreed to by the parties
after the execution of the written agreement Section 1 of Rule 132, generally mentioned that the witnesses
should testify orally, but also provides for the exceptions to
Mariano vs. Canoto (Not sure of the name) the oral form of giving testimony:

A contract of sale with right to repurchase was entered into by 1. If the witness is incapacitated to speak
two parties. Two days before expiration of the period given to o You cannot expect him to give his testimony
exercise the right to repurchase, the seller claimed that she in a parol form.
was granted a grace period by the buyer. And before expiration o Being a witness is not a privilege of those
of the grace period, she exerted effort to exercise such right who can speak, even a deaf mute can testify
but the buyer did not allow seller to buy back the property. in court.
o Under the rules, they are not excluded from
This prompted the seller to go to court to compel the buyer testifying. They can very well testify thru sign
allow repurchase and execute the deed of repurchase. That languages. The rule allows itself as an
was alleged in the complaint of the seller. During the trial, exception.
seller testified that she was given grace period. This was
objected to under the Parol Evidence Rule because the 2. The rule itself allows for a different kind of action like
agreement was not found in the deed itself. when the witness is asked to demonstrate something.
This will require overt acts which will constitute as a
SC overruled the objection noting the exception to the Parol mode of communication or giving testimony.
Evidence Rule that the existence of such terms agreed to by
the parties or their successors-in-interest after the execution of Example: Private offended party is asked
the written agreement. Obviously, the agreement granting the how the rape was actually perpetrated. How
seller the grace period was a term subsequent to the execution else to demonstrate that? No words are
of the contract of sale with right to repurchase. enough to describe. The best way to let the
judge know how it was done. As such,
demonstrate how the rape was done through
Article 1403 of the Civil Code or the so called Statute of Frauds body language. Thus, by way of exception,
is also a kind of evidentiary rule. Under Art. 1403, there are that testimonial evidence is allowed even if
certain kinds of contract which cannot be proved by oral not done orally
testimony for purposes of enforceability. This means that these
3. It is allowed by the Rules to have the testimony
contracts cannot be proved because of its oral existence. The
through affidavits which is contained in some writings
only way to prove its existence is by written memorandum. For
o But do not commit a mistakes that classifying
enforceability, this contracts mention in 1403 must be
affidavits as documentary evidence. They
evidenced by writing. So that if their existence is established by
are considered as testimonial evidence.
a witness, any testimony to that effect cannot be admitted
except when the contract is partially executed. This is a form of THUS:
evidentiary rule.
nd Closest definition of testimonial evidence is simply a
Relate this to 2 exception of the Parol Evidence Rule under reconstruction of past events s as perceived by witness,
the Rules of Court- when the written agreement does not which is recollected in court and made known to the court.
reflect the true intention of the parties.
It is actually a narration of facts made by the witness
What happens when a party pleads it as an issue in the in relation to past events that he claimed to have
pleading that the written agreement does not reflect the true witnessed. It is the reconstruction of past events.
intention of the parties and that the real agreement is one
covered by the Statute of Frauds. Under the Rules of Court, 3 elements of testimonial evidence:
since it falls under the exceptions and is pleaded as an issue, a
party may introduce parol evidence to show the the true 1. Process of Perception
intention of the parties. But if the real agreement is one of 2. Process of Recollection
those covered by the Statute of Frauds which cannot be 3. Process of Communication
proved by parol evidence, is oral testimony offered to prove the
real intention of the parties admissible? As such, if a witness recollect past events and is
communicated to the court, that is considered as testimony
In the book of Paras, he said that one of the exceptions to the evidence. It doesnt matter in what way he communicated it to
Parol Evidence Rule is when it is pleaded that the written the court. It could be done orally, in body language or in
agreement does not reflect the true intentions of the partes, writing, such as in affidavits.
parol evidence may be allowed to prove the real agreement as
long as the agreement is not covered by the Statute of Frauds. The reference to oral testimony is only as to the form
IOW, parol evidence tending to prove the real agreement, even how the communication is being conveyed.
if allowed under the Rules of Court as exception, the evidence But essentially, testimonial evidence relates to the
nonetheless may not be allowed under the Statute of Frauds. fact that a witness recollects past event

Pelaez Moot Court - Evidence Transcript Team 2015-2016

What qualifies one to be a witness? Disqualification due to mental insanity

Disqualification by mental immaturity
1. Witness must have the capacity to perceive. Disqualification by reason of marriage or spousal
o Perception presupposes the witnesses immunity
human senses. The knowledge acquired
Disqualification by reason of death or survivorship
through his own senses (sense of smell,
Disqualification by reason of privilege communication
sight, taste, etc.)

2. The capacity to remember or recollect the perception

of past events. Specific exclusive disqualification. Any other form will not
o It is useless if he has the capacity to constitute as a disqualification.
perceive but cannot remember.
3. The capacity to make known his percept or
recollection to others or the ability to communicate. Political affiliation is not a disqualification as provided
o It is useless if has the ability to perceive and under the law
recollect, but cannot communicate. Religious belief is also not a disqualification.
o If Mr. P happened to be a chairman of a cult
NOTE: qualifications from number 1 to 3 which consider lying as a virtue, that will not
refers to the substantive aspect. make Mr. P disqualified from testifying since
religious belief is not a disqualification
4. The witness must take an oath of affirmation. imposed by law.
o This is a procedural requirement. As well as the interest in the outcome in case is not
o What is the relevance? To make sure that considered as a disqualification.
the witness is conscious of his duty to tell the o If Mar Roxas will testify in the disqualification
truth and nothing but the truth under pain of case of Grace Poe, his interest will not
some punishment either form someone high disqualify him but his testimony may not be
above or under the law. credible. (If Grace Poe is disqualified from
o Distinction between oath and affirmation: the presidential race, Roxas will stand to be
The purpose is the same. benefited, he has all the interest in the
But different as to the context from world). Not a ground for disqualification (rule
which it is derived. on admissibility)
Oath relates to the recognition of
something high almighty or a
Supreme Being or ultimate judge or
ultimate punisher. If someone Generally, conviction of a crime is not a disqualification to
makes an oath, it is always testify.
associated with consciousness of
an almighty god. As such, the Example: If Mr. P was convicted with rape or murder,
witnesses promises that he will it will not make him disqualified from testifying as a
witness. That is the rule.
testify truthfully under pain of
punishment from his god if he Except when a conviction of a crime is made a disqualification.
testify falsely.
Other religion cannot Specific crimes where conviction makes a witness
excuse themselves from disqualified from being a witness.
witnesses, instead of o Conviction of the crime of perjury or false
taking an oath, result to testimony makes a witness disqualified from
just a mere affirmation. being a witness in probate proceeding.
Affirmation is an undertaking o People convicted here are disqualified from
where the witness is conscious of being an instrumental witness in a will.
his duty to testify truthfully with a
knowledge that if he is caught lying
or if he falsely testify, he can incur
some punishment and liability under Prohibition on being a state witness:
the law such as perjury.
o Either oath or affirmation, which is a If a witness offers himself to be a state witness, conviction of a
requirement. If the witness is caught to have crime involving moral turpitude closes the possibility of him
being a state witness.
testified falsely, some adverse punishment
may be incurred, divine punishment or These cases involving moral turpitude mala in se.
human justice.
Exclusive and specific disqualifications as provided under
5. The witness must have the all the qualifications the rules:
mentioned and he must not possess any
disqualifications imposed by law. 1. INSANITY
o An insane person may be disqualified from
being a witness but only if insanity exist at
the time of production as a witness
By the way, the disqualifications imposed by law are
Pelaez Moot Court - Evidence Transcript Team 2015-2016

o Specific reckoning point: disqualified from is in favor of competency. If no competency hearing,

being a witness if insanity exist at the time the court will proceed with the hearing.
he is called to test in court.
o It is possible that he is insane at the time of 3. DEAD MANS STATUTE (VERY INTERESTING
incident but is still qualified to be a witness: DISQUALIFICATION)
Example: Mr. P is an insane man o Also known as the survivorship
who happened to have witnessed disqualification rule
the rape by Mr. S. He was insane at o BUT make no mistake, this rule does not
the time he witnessed the rape. 2 only apply where a party is dead but it
years after, he was called to be a equally applies if one of the party is insane.
witness and was already not insane Thus, calling this rule as dead man statute
(therapeutic effect? Hahaha.) may not be accurate. Maybe we can also call
Mr. P is now sane or maybe in a this as the insane man statute.
lucid interval. He may not be o What is contemplated by this rule?
disqualified from taking the witness One man dies and another survive.
stand since he is already not When someone dies, the truth dies
insane, thus, not suffering any with him.
disqualification at the time of In order to prevent the temptation of
production of his testimony. the surviving party taking
advantage of the death of the other,
o Effect of being insane at the time of the surviving party is disqualified
incident. It will affect the credibility of the from testifying as to the matter of
witness since being an insane diminishes the facts occurring before the death of
mental faculty. The perception is inherently the other party. Since dead man
unreliable. It may be disregarded for being tells no tales.
unreliable. Still, he cannot be disqualified This is on the basis of the strong
from taking the witness stand. temptation on the part of the living
o For purpose of qualifications of a witness, to come forward with a false claim
what is only needed is the ability to recollect against the estate of deceased. The
and communicate and not the ability to law seeks to level the playing field
perceive. and to put the parties on equal
position on the matter of opportunity
Note: Every witness is presumed sane. It is up to the to present evidence.
party claiming insanity to prove it, a party who claimed The deceased party on his own
otherwise, has the burden of proof that indeed, the cannot rebut the testimony of the
witness is insane. As such, to prove insanity, move for surviving since death seals his lip.
a competency hearing to prevent the witness from Thus, the law finds it prudent to
taking the stand. also seal the lips of the living party
in order to level the playing field
2. MENTAL IMMATURITY and to avoid the temptation of false
o This is a disqualification short of insanity claims or perjury.
where the witness is not insane but just
immature. o Requisites for dead mans statute to
o This consist in the inability to perceive the apply:
facts and to relay the perception truthfully.
o Refers to witnesses who could not give a. This rule is applied in a situation where
significance to the event they perceived. As the defending party is the executor,
such, an immature person has no capacity to administrator or the representative of
distinguished truth from falsity. the estate of the deceased or of the
o It is noted that this disqualification is person with an unsound mind.
addressed to child witnesses. This applies to a civil case
Age could be to be taken into 2 or special case where the
contexts: chronological age or defending party is either
mental age. executor, administrator or
A child of 3 years old may be the representative of the
disqualified of immaturity since he estate of the deceased or
could not to distinguished truth from of the person with an
falsity. This pertains to the unsound mind.
chronological age. The estate should be the
But a 20 year old may also fall defendant. It is the party
under this disqualification if he has against whom the claim is
a mind of a 3 year old. Mental age. directed. Against whom
the suit is filed.
Note: Every child witness is presumed qualified. The defendant is executor,
Under the rules of examination of a child a witness, it administrator or the
is the burden of the party who claims otherwise, prove representative of the
through a competency hearing. But the presumption estate of the deceased or
of the person with an
Pelaez Moot Court - Evidence Transcript Team 2015-2016

unsound mind, meaning Obviously these party were sued as party defendants in
the defending party must their individual and personal capacity and not in a
be sued in his representative capacity of the estate of Manuel.
representative capacity
and not on his personal As a matter of fact, the property was no longer part of the
capacity. estate of Manuel when the suit was filed
One may act on his own
So the ruling in this case, if the defendants are sued
capacity or may act as a
on their personal capacity and not as representative
representative of another.
of the estate of the deceased, dead mans statute does
What is contemplated
not apply.
under this rule is that the
defendant is only acting as 2. Dead Mans Statute applies in a case or a suit involving
a representative and not an estate of the deceased.
on his own.
It must be a claim against the estate or directed
against the estate and not the other way around. It is
always against the estate because this rule is
intended to protect the interest of the estate. If the suit
involves a claim initiated by the estate against
Case: Guerrero vs St. Claire Realty
another. It is the reverse. DMS does not apply.
- A piece of land owned by Andres Guerrero which he
acquired from parents. When the parents of Andres TIONGCO V. VIANZON
died, he took possession, cultivated the land and
FACTS: There was a husband and a wife and during
enjoyed it. Years after, he allowed his sister,
the lifetime of the husband, he filed a claim in a
Christina, to enjoy and took possession of the land, as
cadastral proceeding for ownership over a parcel of
such, she also enjoyed the harvests of the land.
land. He declares in his claim that the properties are
- When Andres died, his heirs where were surprised
owned by him and his wife, their conjugal properties.
and devastated to learn that some people approached
During the pendency of the Cadastral proceeding, the
them and negotiated for the purchase of the property.
husband died and shortly after the death, the claim
And the property was title under the name of Manuel
was granted and accordingly the title was issued in
Guerrero (another sibling). As such, they conducted
favor of both spouses.
investigation. They discovered that Manuel acquired
the land from Christina. It was said that Christina sold The wife filed a motion in the same cadastral
it to Manuel, and on the basis of the deed of sale, proceeding to modify the order to reflect her name as
Manuel obtained title over the property. the sole exclusive owner of properties covered by the
- Thereafter, Manuel sold the land to his other relatives, title. The niece of the husband who is the
also named Guerreros, and they in turn sold the land administrator knew about this and filed an action to
to a partnership, St. Claire Realty. And in turn, it recover the property against the widow. During the
entered into a joint venture agreement with United trial, the widow testified that the properties were really
Housing. acquired by her and therefore these properties is her
- The heirs of Andres sought the recovery of the exclusive properties to the exclusion of the husband.
property from the Guerreros, St. Claire, and United
Housing. This testimony was objected by the estate
- During trial the children of Andres presented witness represented by the administrator on the ground that
(Laura and Jose Cervantes, a child of Christina) to the husband is already not around, cannot be
testify that during lifetime of Christina, she obtained a expected to controvert, disclaim or clarify the
loan from Manuel and offer as a security the land to testimony of the widow.
Manuel. As such they confirmed in court, she never
sold it to Manuel. Further, they knew that Christina HELD: Under the DMS, the widow is disqualified from
was not the owner of the land since it was owned by testifying on any matter that occurred prior to the
Andres, her brother. death. This rule applies only to a situation where a
- The testimonies were objected to on the ground of claim or a suit is directed against the estate of the
dead mans statute saying that since Manuel has deceased. In this case, its the estate represented by
already died, he could no longer controvert and the administrator that instituted the action against the
contradict or clarify the testimony of Laura and Jose. widow for the recovery of the estate. It is the reverse.
The SC said it is not covered so the testimony of the
Issue: Whether or not the witnesses presented are widow purporting to establish an event that occurred
disqualified to testify as to facts that occurred prior to the prior to the death of the husband could not exclude
death of Manuel Guerrero. under this rule.

SC Ruling:

That dead mans statute applies only to a situation RAZON V. IAC

where the defending party is the executor,
administrator or the representative of the estate of a FACTS: This involves 1,500 shares of stocks in
deceased person. SC noted that the Guerreros are not E.Razon Inc. This shares of stocke covered by a
the executor, administrator of the representative of certificate in the name of Chudian. When he died,
Manuel. So as with St. Claire and United Housing. settlement of estate was instituted and represented by

Pelaez Moot Court - Evidence Transcript Team 2015-2016

one of his children, Vicente. Knowing that the late dead. The testimonies relate to facts that occurred
father Chudian owned 1,500 stocks, they demanded prior to the death of Fitzsimmons.
for the delivery of the certificate of stocks.
HELD: The SC said, not all witnesses are disqualified
It was learned that the certificate was kept by Razon from testifying under the DMS. In this case, the
who refuse to deliver it to the administrator. E.Razon plaintiff was Atlantic Gulf, the corporation. The
claimed that although the certificate was in the name witnesses were just the employees of the corporation.
of Chudian, the truth of the matter was he was the The Corporation has distinct personality different from
one who paid for the value of the stocks and therefore the stockholders, the officers and the employees.
he was the real owner of the stocks. He refuse to turn
over the stocks. In legal contemplation, although these witnesses were
employees of the corporation, are not the plaintiff,
The estate was forced to file an action for E.Razon to
neither the assignor or the person on whose behalf
deliver the certificate and for the Corporation to effect
the action was prosecuted. An ordinary witness is not
the change. During the trial, E.Razon testify as to his
agreement with Chudian during Chudians lifetime
that the shares of stock was actually belonged in legal
ownership to E.Razon but only made to appear in the PRINCIPLES AND DOCTRINES IN CONNECTION TO DMS:
name of Chudian who was given an option to take it
from E.Razon if he decides to reimburse E.Razon of When the estate while originally the
the value of the stocks which Chudian never did. defending party interposes a
counterclaim against the initiating party.
The testimony of E.Razon was sought to be excluded
under the DMS since Chudian was already dead, he The rule here is that the initiating
is not around and cannot be expected to controvert, party, the plaintiff is no longer
disclaim or clarify the testimony of E.Razon. disqualified from testifying because
when the plaintiff takes the stand
HELD: DMS applies to a situation where a suit
and testify, he is not only testifying
against the estate of a deceased person and not the
as an ordinary plaintiff witness but
estate which initiates the action or assert a claim
at the same time, he was testifying
against the other. It is not a situation covered under
as a defendant witness. He was a
the DMS.
defendant in so far as the
3. Not all witnesses are disqualified from testifying under counterclaim concerned.
DMS. The Rule specifically enumerates the kind of witness
or witnesses who are typically disqualified under the rule It is as if the action was initiated by
the estate and DMS does not apply
Who are the witness disqualified? to a situation where estate is the
complaining, initiating party.
The plaintiffs, the parties asserting a claim against the
estate or
The assignor of the plaintiff, the predecessor of the CASE: GONI V. CA
plaintiff or
The person on whose behalf the action is prosecuted, FACTS: There was these three haciendas owned by
the principal party who is represented by a Tabacalera. A certain Villanuevaca came forward to offer to
representative in such case. buy the three haciendas from Tabacalera. The problem was
that Villanueva has no sufficient cash to pay the purchase price
If the witness is not any of the three, being an ordinary witness, in full. Villanueva convinced Tabacalera the he be only allowed
that witness is not disqualified under the DMS. to pay partial payment and the balance be paid out of the
proceeds of the sale of one or some of the fields forming part
CASE: LICHAUCO V. ATLANTIC GULF of the entire haciendas.

FACTS: Atlantic Gulf is a corporation doing business One of the fields of a hacienda which Villanueva intended to
in the PH. Its president is Mr. Fitzsimmons who made sell to Mr. Villegas. Tabacalera agreed on the condition that
some cash advances from the corporation. the obligation of Villegas be guaranteed by a third party. Mr.
Fitzsimmons died and so there was a settlement of Vicente came into the picture, he acted as a guarantor of Mr.
the estate represented by the administrator, Mr. Villegas in favor of Tabacalera.
Lichauco. In the settlement proceeding, the
The whole transaction is for the benefit of Villanueva who
Corporation which has a pending claim against Mr.
stood to be owner of the entire three haciendas. Vicente,
Fitzsimmons involving cash advances made by him
coming now to act as a guarantor, a contract was entered
filed a claim against the estate of Fitzsimmons. In
between him and Villanueva denominated as contract of
support of its claim, the corporation presented as
Promise to sell or Contract to sell involving the three fields
witnesses its corporate officers and employees. All
forming part of the haciendas in favor of Vicente. The contract
these witnesses purported to establish that during the
to sell was entered into by Villanueva thru his agent Mr.
lifetime of Fitzsimmons, he obtains cash advances
from the corporation.
Villanueva died and so the settlement of his estate was
Their admissions of their testimonies was challenged instituted. In the inventories of the property of the estate, the
under the DMS because Fitzsimmons is already three fields which were the object of the contract to sell were

Pelaez Moot Court - Evidence Transcript Team 2015-2016

included as part of the estate. This prejudice Vicente and that something did not occur, in a
invoking the contract, filed an action to recover the properties. negative sense, that is not covered
During the trial, Vicente testified that during the lifetime of by the disqualification.
Villanueva, the latter entered into a contract in favor involving
the three fields and so taking cue from that transaction, Vicente
now claims ownership over the three fields. MENDEZONA V. VDA. DE GUITIA

The testimony of Vicente tending to establish this fact that FACTS: This involves a claim of two partners in a partnership.
occurred prior to the death of Villanueva was objected to under During the existence of the partnership, these two ladies
the DMS because Villanueva here is already dead and already appointed a manager in the partnership, Benigno de Guitia.
not around to dispute, refute or contradict, controvert the The authority given to him was for him to collect their shares in
testimony of Vicente. the profit of the partnership and return to the principal their
shares which obligation Benigno de Guitia faithfully complied
HELD: The SC overruled the objection on the ground that the until he stop doing his function and then he died. An estate
purpose of the DMS is to put the parties, both the surviving and proceeding was instituted on the estate of Benigno
the deceased in the position of equality on the matter of represented by his wife VDA. De Guitia. The two partners who
presenting evidence. This reason behind the rule does not were base in Spain filed their claim against the estate of
exist in the situation because while Villanueva was already Benigno claiming that Benigno owed them their shares in the
deceased and unable to contradict the testimony of Vicente, it profit of the partnership which Benigno collected.
was established that the contract was entered into by
Villanueva thru his agent Gunye. Since the agent, a The testimony was taken in Spain thru deposition and in
representative is still alive, he can very well defend the estate accordance with the rule, the deposition was submitted to the
and as a matter of fact Gunye testified in the case that while court and offered as evidence. This was objected to by the
the contract was initially entered into by the parties was that of DMS because Benigno is already dead and the ladies were
a contract to sell, the contract was later on novated into a testifying on matters that relates to the transaction before the
contract of lease. death of Benigno.

First Justification. The SC said that the presence and the HELD: At the first glance, the objection appears to be with
testimony of Gunye negates the evil sought to be avoided by merit but the SC saw it the other way. The SC said that what is
the DMS. There was no disadvantage on the part of the estate prohibited in the DMS is the testimony relating to a matter of
of Villanueva because a witness as competent as Gunye was fact that occurred prior to the death of the decedent. The
able to testify in behalf of the estate. testimony of these ladies taken in a deposition only seeks to
establish that during a certain period, Benigno did not remit to
Second Justification. It was noted by the SC that in their them theirs shares in the business of the partnership, so it is in
answer to the complaint of Vicente, the estate interposes a a negative sense. In other words, their testimony seeks to
counterclaim. The estate demanded that Vicente be ordered to establish that something did not occur so the reverse on what
make an accounting for fields that he cultivated. The SC said, is covered under the disqualification rule.
by interposing a counterclaim for accounting, the estate
became a complainant itself, the complaining or initiating party. Sir: Very amusing ruling. A very old case but still a good law. I
The defending party, so far as the counterclaim is concern, have not yet known a subsequent jurisprudence abandoning
Vicente cannot be prevented to testify to controvert or to this doctrine.
protect himself against the counterclaim. Mr. Vicente while he
testifies, he was testifying as both the plaintiff and as a
defendant as the counterclaim is concerned. 1. DISQUALIFICATION BY REASON OF MARRIAGE
These are the two important doctrines that the SC enunciated This is a kind of disqualification imposed on married
in the case of Gunye vs. CA. couple by simply because of the relationship.
Not all witnesses are disqualified, not all The purpose or the reason behind the disqualification:
matters covered by the testimonies of the
witnesses are covered. To preserve marital relation and domestic peace.
Neither the husband or the wife can testify
In other words, even if the witness against the other so as to avoid
is one of those expressly prohibited breaching/straining marital relation.
to testify but just because he was To prevent perjury.
disqualified it does not mean that That is why neither the husband or the wife
everything that he is to testify is can testify for or in favor of the other. This is
covered. There are only specific a recognition of human experience that
matters of fact or matters that relationship like that of a husband and a wife
cannot be testified on by the may cause one to commit perjury for the
witness. Under the rules, the benefit of the other.
witness is only disqualified from
testifying as to any matter of fact
that occurred prior to the death of REQUISITES:
the deceased or prior to the person
becoming of unsound mind. The There must be a valid marriage
word is in affirmative sense,
occurred prior so that the testimony This does not apply to anomalous,
of the witness seeks to establish scandalous marriages. The existence of a

Pelaez Moot Court - Evidence Transcript Team 2015-2016

valid marriage is not enough for this This disqualification rule is coterminous with the
disqualification to apply. It is equally existence of the marriage.
important to establish that at the time the
testimonies were offered, the relationship of In other words, the disqualification subsists
the husband and wife is not strained so that so long as the parties are still legally
if the relationship between the spouses is married. If the marriage is already dissolved
already strained as when they are already by death or by court order where the marital
separated de facto, the reason for the rule as bonds are dissolved, then the disqualification
to preserve marital relations or domestic rule ceases.
peace is not present and therefore the rule
does not apply.


FACTS: A prosecution for arson filed There are certain individuals who are disqualified from
against Alvarez, the complainant was his testifying as to any matter learned in confidence in any of the
sister-in-law, Susan Ramirez. During the following instances:
trial, the first witness for the prosecution
was the wife of Alvarez who testified that he 1. The husband or the wife during or after marriage
saw Alvarez pouring gasoline to the house cannot without the consent of the other be
of her sister and set it on fire. The defense examined on any matter learned by one in
sought the disqualification of the wife or confidence with the other except in a civil case by
otherwise they sought to exclude the one against the other or in a criminal case
testimony of the wife on the ground of involving a crime committed by one against the
spousal immunity or marital disqualification. other or against the latters direct ascendants or
Neither the husband or the wife can testify descendants.
against the other without the consent of the
affected spouse. There was no consent of Privilege communication rule between the
Alvarez. spouses unlike marital disqualification which
is a disqualification attached to the
HELD: The SC disagreed. The SC look into relationship itself. This privilege
the rationale behind the marital communication rule between spouses is a
disqualification rule and declared that the disqualification and this is not attached to the
parties relationship was already strained. relationship itself but attached to the
As a matter of fact, they were already communication which is confidential.
separated for six months prior to the While the purpose the marital disqualification
incident. The purpose of Alvarez in setting is to preserve marital disqualification or to
the house on fire was really to harm the preserve domestic peace and to avoid
wife, not the sister-in-law. The wife was perjury, the purpose of the privilege
also living in her sisters house. The SC communication rule between spouses is to
said that there was no marital peace to protect confidential information to encourage
preserve and even the marriage is still the free flow of communication between the
legally intact, the absence of marital peace spouses so they can perform their respective
relation to preserve, the rule does not rights and obligations towards the other
apply. otherwise, neither of them can be expected
to be totally honest and forthright with each
other. In the absence of full transparency,
neither of them can be expected to fully and
In marital disqualification, the witness spouse completely discharge their obligation towards
may or may not be a party to the case but the the other.
other spouse for whom or against whom the
testimony of a witness spouse is offered must be This disqualification survives the death of either. It
a party to the case. survives the existence of the marriage. The law says
the husband or the wife during or after the marriage,
none of them can disclose confidential information
even after the death or the dissolution of the
Neither spouse, neither the husband or the
marriage, the confidential nature of the
wife can testify for or against the other
communication remains protected.
without the consent of the affected spouse.
The affected spouse refers to the spouse
Its another distinction between marital
who is a party in a case. So, the husband or
disqualification and privilege communication
the wife testifies against the other but that
because marital disqualification subsists only
other is not a party to the case, this
during the existence of the marriage.
disqualification does not apply. If he is not a
party to the case, then he cannot be affected The communication must be given in confidence. It
by the testimony. must be intended only for the benefit of the two of
them and not meant to be shared with someone else.


Pelaez Moot Court - Evidence Transcript Team 2015-2016

FACTS: This is a story of a couple, the wife underwent a other). This privilege is obviously for his own benefit and
surgery and as expected in a major surgery, the wife was protection.
required by the surgeon to go back to the clinic for post
operation check-up. The husband, always made it sure to
accompany the wife during her visits to the clinic and the
doctor would send him for errands. The doctor sends a
statement of account to the couple who refused to pay the bill. RULE 130; Section 24. Disqualification by reason of privileged
The husband went to see the doctor and killed him. It was communication. The following persons cannot testify as to
learned by the husband that during the visits to the clinic and matters learned in confidence in the following cases:
when he was asked to make an errand, the doctor allegedly
ravaged the wife. The husband was prosecuted for murder and XXX
was convicted.
(b) An attorney cannot, without the consent of his
During the appeal before the Supreme Court, the defense
client, be examined as to any communication made
argued that if ever the accused was to be convicted, it be for
by the client to him, or his advice given thereon in the
just homicide and not murder because there was no evident
course of, or with a view to, professional employment,
intimidation. The issue was whether the accuse can be
nor can an attorney's secretary, stenographer, or clerk
convicted of a murder or a homicide. The SC had to examine
be examined, without the consent of the client and his
the very crucial evidence presented during the trial consisting
employer, concerning any fact the knowledge of
of the letter sent by the wife to the husband prior to the incident
which has been acquired in such capacity;
which letter was ceased by the police while the husband was
arrested. In that letter, the wife expresses her fear that the PURPOSE:
husband may resort to violence in dealing with the doctor.
To encourage free flow of information between the lawyer and
The defense objected to the admission of the letter presented
the client, the objective being, to enable the lawyer to
by the prosecution, the police in the ground of privilege effectively perform his official function as counsel.
communication, the letter was sent by the wife to the husband
in confidence. And what better way to achieve this purpose than assuring that
whatever information, however incriminating, given by the
HELD: The SC said, when a privilege communication legally or
client to the lawyer is protected by the rule on confidentiality.
illegally comes into the possession of a third party, the
confidential nature of the communication ceases to be
confidential therefore anyone who comes into possession of
that communication maybe examined as to the contents of the WHO OWNS THE PRIVILEGE?
The interest sought to be protected is the interest of the client.
Take note: Legally or Illegally so if the letter was stolen, it Therefore, the privilege belongs to the CLIENT.
does not matter. If the recipient spouse voluntarily shares
with someone else, that it is legally given, does the The lawyer may not be examined without the consent of the
confidential nature of the communication ceases to be client on any information that the lawyer obtain or may have
confidential? The SC said in the case of People vs. Carlos obtained from the client as well as any advice that the lawyer
that whether legally or illegally so long as there is no may give to the client in the course of or with the view to
collusion, it was not voluntarily release by the spouses to professional employment.
the third party otherwise the privilege can be easily
Take Note: The one disqualified from being examined is the
circumvented. The spouse is prohibited from disclosing
any confidential information received from the other which
the act of disclosing violates the rule. It would be absurd to It is the CONSENT OF THE CLIENT that Is needed to be able
excuse the application of the rule if precisely the act of to disclose (not the other way around)
sharing it is the very act prohibited by the rule. Legally or
Illegally with no collusion because the spouse voluntarily So if the client consents, the lawyer may not refuse, can be
shares the information with another, that another person is compelled.
deemed to be the extension of the sharing spouse so he is
equally covered. But if the client does not consent, the lawyer cannot be
The one disqualified from disclosing is the RECEPIENT
SPOUSE (the one who received the confidential information HOLDER of the privilege = CLIENT.
from the other spouse).
So if the COMMUNICATING SPOUSE gives the confidential
information to a 3 party, it is not anymore confidential and he Take Note: The privilege survives the death of either
obviously did not give it in confidence so it is not covered. Lawyer/Client.

But if its the RECEPIENT SPOUSE who shares the So even if client dies, the lawyer cannot divulge.
confidential information to a 3 party then the privilege REQUISITES:
communication rule will apply.
1. There must be a Client-Lawyer Relationship
Take Note: the one who can invoke the privileged 2. The information relayed by the client to the lawyer
communication rule is the COMMUNICATING SPOUSE (the or the advice of the lawyer given to the client in
spouse who gave the confidential information to the

Pelaez Moot Court - Evidence Transcript Team 2015-2016

the course of or in the view of professional This involves a criminal prosecution for conspiracy to
employment respecting a PAST CRIME/ACT commit fraud against the government of US and
3. Advice or information given must be given in obstruction of justice. Filed against some government
confidence officials, one of those is congressman Mcpartlin by
certain private individuals. This involves a government
THERE MUST BE A CLIENT-LAWYER RELATIONSHIP contract for sludge hauling project with a private
corporation, Ingram Corporation.
This includes the scenario where the client relayed information The star witness for the prosecution was the former
to the lawyer or the lawyer gives an advice to the client with the VP of the contractor of a private corporation, Mr.
view for professional employment; meaning, preliminary to the Benton. Mr. Benton was part of the series of
actual perfection of the contract. What is important is that it is a negotiation where the conspiracy took place.
communication between a client and a lawyer.
In the course of these negotiations and series of
TN: not only the information given during the lawyer-client meetings, Benton claim that he keep a diary of all the
relationship but any information that the client may relay to the meetings specifying the details which includes
lawyer or any advice that the lawyer may give to the client incriminating information-- the conspiracy between
even before the relationship is formalized is covered, by virtue mcpartlin and ingram corporation.
of the phrasewith the view for professional employment. To the best interest of mcpartlin and ingram, they
came up with a common defense against Benton--to
Information must be made by the client to the lawyer and the their mutual interest to destroy the testimony of
advice must be given by the lawyer to the client Benton. In pursuit of their common defense, the
lawyer of ingram engaged services of investigator
OPERATIVE FACT = Lawyer-client relationship who interviewed mcpartlin, hoping that mcpartlin
could provide significant information that can be used
If the advice is given by someone who is not the client, it can to destroy testimony of Benton--divulged information
be disclosed. beneficial to ingram, where lawyer of ingram tried to
(US vs GORDON-NIIKKAR) introduce this information.
Mcpartlin objected to this, under lawyer/client
This is a prosecution for illegal possession of cocaine. One privileged communication.
accused testified against the accused. During the trial, the
witness testified that he had meetings with the lawyer and in Held: Privilege covers instances where the common/joint
those meetings she was present along with other persons in defense exists. This is a situation where the clients and
the lawyers office. During the meeting, the lawyer advised his lawyers come together to work for a common defense. These
client to lie and commit perjury and deny having possession of accused are considered as one and the lawyer representing
the cocaine. Lawyer suggested that the accused go to them are considered as one. Under the law they are
Venezuela. considered as one so that any information given in confidence
by one accused to the lawyer of the other accused is covered
This was objected to by the lawyer under the lawyer-client by the privilege. When a client communicates with the lawyer
privilege rule. of the other party pursuant to a common defense, the lawyer of
the other party is deemed the lawyer of the other.
HELD: There is no client-lawyer relationship. And other parties
were present during the meeting so, lawyer-client privilege As in this case, but when there is no client-lawyer relationship
cannot be invoked. The absence of L-C Relationship prevents between the accused and the lawyer of the other accused who
the privileged communication rule from applying. hired the services of the investigator who interviewed the
accused it is obvious that the interview was contracted
Moral Lesson: before you could even give advise you make pursuant to a matter of common defense--to discredit the
sure that everybody in the office are your clients. I dont know testimony of Mr. Benton and his diary; where it not for this
how the lawyer could have missed this. common purpose, the interview would not have been
conducted. SC called this as the Common Defense or Joint
EXCEPTION: even if the communication is made not between
Interest Privilege. SC said that any communication that one
a client to a lawyer or made between a lawyer to a non-client,
the privilege/rule still applies party disclose to another party on matters of common interests
covered/protected by the client-lawyer privilege communication
Ex. Lawyer of Client A interviews Client B rule. This US case has persuasive effect in our jurisdiction.

There is really no L-C Relationship BUT under the It was also argued that the one who interviewed was the
Principle of Common Defense or Joint Interest, investigator and not the lawyer so how come there is L-C
any information that one party may relay to the lawyer Relationship?
of another party with respect to matters of common
HELD: The investigator was only hired by the lawyer for Mr.
interest or joint defense is still covered by the privilege
even absent the client-lawyer relationship between Ingram. The investigator was deemed to be an agent, who is
considered as an extension of the principal.
them. Two or more clients are represented by their
lawyer individually but one lawyer interviews the client
of the other.
This is the doctrine enunciated in the case of US v. McPartlin: THE CLIENT IN THE COURSE OF OR IN THE VIEW OF

Pelaez Moot Court - Evidence Transcript Team 2015-2016

Meaning, it must be for: Held: SC said that there is no privileged communication rule to
talk about; the privilege applies only if the information was
A legitimate purpose; and relayed by the client to the lawyer respecting a past crime.
Related to a past crime-NOT an ongoing or future Here, the information was given in contemplation of a future
crime. crime.

The information regarding an ongoing or future crime are not Paredes argued that it is past crime because when Sansait
covered by the privilege on two grounds: testified, the crime has long been committed.

No longer in the course/ with the view of professional SC said reckoning point is when communication was given, not
employment because the employment there must be when the lawyer was made to testify. SC also said that the
in the course of/ with the view of a lawful employment. communication referred in the rule does not only cover oral or
The legal profession is intended for a lawful or written communication but even PHYSICAL ACTS.
legitimate purpose.
Here: Sansait testified to a crime where at that time has yet to
Reckoning point to be considered as communication be committed or at the very least in the process of committing.
in relation to a PAST CRIME: Doctrine: L-C Privileged Communication Rule only applies
- At the time when the information was learned in when it relates to a past crime.
confidence by the lawyer. Will NOT APPLY if relates to a FUTURE/PRESENT crime.
People v. Sandiganbayan And must be made in the course of or in the view of
professional employment (meaning it should be for a
The case that involves a prominent politician lawful purpose)
in Mindanao, Paredes, who was formerly the
provincial attorney, then governor, and But here it involves commission of the crime.
During his stint, Paredes was able to acquire The obvious purpose of this privilege is to promote justice and
a free patent over a vast tract of land in it would be a perversion of this privilege to allow this to cover
Mindanao. an information which is intended to frustrate justice.
Fast-forward, someone came forward and
Example in class:
accused Paredes of committing fraud in his
application for titling. The Bureau of lands Mr Servacio told his lawyer I kidnapped Ms Yap and she
even move for cancellation of the title on the is in my house now
ground of misrepresentation. Because of
this, someone filed a case of perjury against -this is a past crime. Kidnapping is a continuing crime.
Paredes which was then dismissed. After,
another case was filed in court against
Peredes for violation of the provisions of the
anti-graph and corrupt practices act, a ADVICE OR INFORMATION GIVEN MUST BE GIVEN IN
special law. CONFIDENCE
By way of defense, Paredes contended that Any information/communication that the client give must be
the second complaint filed in court arose intended for the lawyer alone.
from the same incident subject, same act or
omission, of the earlier perjury case which It is meant not to be shared to other parties other than the two
was already dismissed. They alleged that of them.
double jeopardy has already attached. For
double jeopardy to attach: there must be Under the privileged communication between L-C, when an
arraignment and the case was dismissed information otherwise privileged, comes into possession of 3
without the consent of the accused. party or even to the adverse party, that communication
To support such defense the accused otherwise confidential, ceases to be privileged and tHat 3
presented court records and transcripts as party who is in possession of the communication may be
proof that he was arraigned in the perjury examined, may testify and may disclose the information. This
case. was the ruling in the case of Leyte Asphalt.
Unfortunately, such documents were
If communication is given in the presence of any other person,
discovered to be falsified. It was done in
the communication is not intended to be confidential, and
conspiracy with the lawyer of Paredes and
therefore, not covered by the privilege.
clerk of court where the perjury case was
filed. Because of this, another case was filed The same also if the advice of the lawyer is given in the
against the three for falsification of judicial presence of a third party (not the client), it cannot be deemed
records. given in confidence. This was the ruling in the case of US v.
The lawyer then offered to testify against his Gordon-Nikkar (US jurisprudence):
client. He was suggested by the prosecution
to be a state witness against Paredes but the Facts:
Sandiganbayan denied the motion on the
ground of client-lawyer privilege since lawyer Conspiracy to possess and traffic cocaine, where
could not testify against his own client. several accused were present, who were charged as

Pelaez Moot Court - Evidence Transcript Team 2015-2016

One of the accused pleaded guilty to the charge and the third party but using the lawyer as a intermediary. The
testified for the prosecution. element that the information must be given in confidence is
The snitch testified that she attended two meetings lacking. So, if a communication is given not in confidence but
with the lawyer and Nikkar, where the lawyer advised intended to be given to a third party, then it is not covered by
the snitch to go to Venezuela and suggested to the Privilleged Communication Rule.
perjure themselves and deny possession of cocaine,
and that they were only there to attend a party. In TN: once an otherwise privilege communication comes into the
short, the lawyer conspired with client to commit hands of a third party, it ceases to be confidential. And so, it
perjury. can be divulged without violating the rule as illustrated in the
Testimony of snitch was objected to under lawyer- case of Barton V. Leyte Asphalt--letter between lawyer and
client privilege. However, the snitch was not a client who fell into hands of a 3 party. SC: whether the
client of the lawyer. communication is obtained by a 3 party, legally/illegally, it is
taken out of the privilege and party who has this information
Held: lawyer-client privilege does not apply since the advice may testify and disclose the information.
was not given in confidencegiven in the presence of a
third party, the snitch, who is not the lawyer of the client.
Another is when the communication is intended for a 3 part, COMMUNICATION? WHAT HAPPENS IF DISCLOSING AN
was conveyed to the lawyer--it is not under the privilege. The INFORMATION IS THE ONLY DEFENSE OF THE LAWYER?
lawyer only becomes the messenger of the
communication/agent of the client. This cannot be a It is not uncommon that the lawyer gets sued along with the
communication in confidence. client when the lawyer get involve with the clients
case/dealings, and the lawyers only defense is the disclosure
CASE: Uichico V. Union Assurance Life of communications between the client and the lawyer to the
This is a case of recovery of proceeds of fire detriment of the client [Bailey v Department of Land and Water
Conservation (2009) NSWCA 100] or there is a case between
insurance policies over the inventory of a certain
the client and his lawyer.
business which was managed by the father. when the
father died, the business who was taken over by the This is a grey area our jurisdiction. In America and other
two sons. jurisdiction, there is this school of thought that recognizes an
During effectivity of the insurance policies, their exception to this privilege communication rule between the
inventory was lost by fire, entitling them to claim client and the lawyera case between the client and his/her
proceeds. The administrator, who instituted lawyer.
settlement of estate of the father, included insurance
proceeds of burned inventory.
The son disagreed, claimed he was the owner of the
business, and was therefore entitled to the proceeds 3. PHYSICIAN-PATIENT PRIVILEGED COMMUNICATION
of insurance. It was established that the son who
RULE 130; Section 24. Disqualification by reason of privileged
instituted action to recover insurance proceeds
communication. The following persons cannot testify as to
instructed his lawyer to negotiate with insurance
matters learned in confidence in the following cases:
company to obtain its proceeds.
Insurance policy was given to lawyer, who gave it to
the administrator of the estate of the father, who in
turn entered into a compromise with the insurance (c) A person authorized to practice medicine, surgery
company at half the value. The son, displeased, now or obstetrics cannot in a civil case, without the
disowned the compromise, saying that he is not consent of the patient, be examined as to any advice
bound. He said that the lawyer compromised without or treatment given by him or any information which he
his authority. may have acquired in attending such patient in a
The insurance company tried to prove that the professional capacity, which information was
compromise was authorized by the son, who even necessary to enable him to act in capacity, and which
presented the lawyer as witness claiming he was would blacken the reputation of the patient;
instructed by the son to effect the compromise, giving
the policy to him, to deliver them to the administrator Purpose:
of estate. This was objected to under lawyer/client
privilege. 1. To encourage patient to divulge all information
Lawyer testified as to the instruction given to him regarding his illness
which was objected to by the client.
2. For the physician to be able to perform his duty
Issue: WON the compromise entered into by the lawyer is effectively
binding upon the client who now disclaims authority of the
lawyer to enter into compromise in his behalf.

Held: Privilege does not apply because the communication is If not, the client might not disclose everything under the fear
not given in confidence by the client to the lawyer. In this case, that it will blacken his reputation.
it was intended for a third party as the client instructed the
lawyer to convey to the insurance company his intention to Ex. Mr Servacio has gonorrhea and syphilis, his physician
compromise. In effect, the lawyer mere acted as the agent of cannot be expected to administer proper treatment if the
the client because ultimately the information was intended for patient will not be candid to the physician.
Pelaez Moot Court - Evidence Transcript Team 2015-2016

REQUISITES A wife filed a case for nullity of marriage under art.

36the husband is mentally deficient due to his
1. Applies only in a CIVIL CASE incessant alcoholism and excessive drug use. To
prove such, the wife moved for the issuance of
2. Any information/treatment/advice given should
subpoena duces tecum for the submission of the
be made in the course of a professional
medical records of the husband, who was once
confined in the hospital for drug rehabilitation. It was
3. Information must be given in confidence objected under physician-patient privilege rule. The
wife argued that the privilege will not apply it only
4. May only be invoked against a person applies when then the physician is examined or the
authorized to practice medicine, surgery, or testimony of the physician, not the records.
SC disagrees. When a physician attends to a patient,
5. Treatment must be given in the doctors the former would obviously put into writing his/her
professional capacity findings/diagnosis/treatment into the latters medical
record. These medical reports serve as repository of
APPLIES ONLY TO CIVIL CASES (as distinguished from all the findings/diagnosis/treatment administered by
other privileged communication) the physician to the patient. So, producing this
medical record in court is not different from the
Reason: criminal prosecution is more paramount than physician testifying therefore, covered by the
the interest of the patient. Interest of the State first. privilege. It applies to all forms of communication.

Qualification: covers only information: INFORMATION MUST BE GIVEN IN CONFIDENCE

In the course of the duty of the physician If the advice is given in the presence of a third party, not
exclusively in the presence of the patient, it is not covered.
if disclosed, will BLACKEN THE
The wife objected to the production of her medical
record based on the interview conducted by her
(therefore, if beneficial to the clientit is not
covered) SC SAID:

ANY INFORMATION/TREATMENT/ADVICE GIVEN SHOULD 1. What is prohibited by the rule is the disclosure of
BE MADE IN THE COURSE OF A PROFESSIONAL specific information, not the fact of consultation.
EMPLOYMENT 2. Even if the disclosure is of specific information
regarding the treatment of the advice, it will not
Take Note: Not all communication between PH-PT are be covered by the privilege if it is established that
covered. Only those communications made in the course during the interview the patient was always
of professional employment. accompanied by third party.
professional employment Relate this ruling to Rule 28
Interpreted as PREVENTIVE OR CURATIVE Mode of discovery called mental and physical examination
The court, upon motion of adverse party, may order the
For example: Autopsy is neither preventive nor submission to physical examination of a party. Sec. 4 in
curative, it is only a fact finding procedure--not relation to Sec. 3 the effect is when a party examined
covered. request for the copy of the result of the report of the
examination caused to be conducted by the adverse party/at
Report by the medico-legal officer is not covered
the instance of the adverse party, the party subjected to the
because it is not curative nor preventive.
physical examination is deemed to have waived any
CASE: Lim V. Ca confidential information relating to any other examination
conducted relating to the same mental condition. So, if there is
SC: what is prohibited by the rule is the disclosure of the other examination conducted, he cannot anymore object to the
specific informationthe treatment given or procedure disclosure of the results of the other examinations because he
administered, the diagnosis, the information relayed by the has deemed to have waived his right to the confidential nature
patient to the physician but NOT THE FACT OF of his other reports related to the same mental condition
CONSULTATION. So the physician may disclose that subject of the examination contemplated in rule 28.
indeed a certain patient is under my care or under my
Physician may not be EXAMINED OBSTETRICS

covers not only the testimony of the physicianwhen the This cannot be invoked against a person who is neither of
physician is called to be examined. those practicing: MEDICINE

CASE: Chan V. Chan (if mockbar examiner is updated, this is SURGERY

a good case)
Pelaez Moot Court - Evidence Transcript Team 2015-2016


TN: the communication must be between the physician and the (d) A minister or priest cannot, without the consent of
patient and if such communication was made with the the person making the confession, be examined as to
presence of a third party, it ceases to be confidential or any confession made to or any advice given by him in
privileged. his professional character in the course of discipline
rd enjoined by the church to which the minister or priest
Any 3 party in possession of that communication, may belongs;
disclose without violating the rule.

But what about the physician? XXX

(Lim vs CA)

Facts: Action for Nullity of Marriage. Wife is suffering from This SEAL OF CONFESSIONis absolute (bomb in the
Schizophrenia. Husband presented the psychiatrist to testify building scenario).It is intended to promote justice.
but the wife objected to this claiming Patient-Physician
Privilege Rule. REQUISITE

SC: It was established during the trial that during the 1. Information must be given or received during
consultations and interviews with the psychiatrist, she was confession.
always accompanied by her father who heard all of the
interviews. Minister must be duly ordained by the church
This is not confidential anymore because it was heard by Past crimes only
another person. Thus, the physician may testify due to the
presence of 3 person. Same as the lawyer, the rule on confession does not apply to
rd rd future crimes.
So, once in possession or known to 3 party, the 3 party or
physician may testify. 5. NEWSMAN PRIVILEGE
CASE: Krohn v. CA Publishers, editors and reporters may not be examined to
disclose the identity of their sources.
An action for nullity of marriage was filed by the husband
against the wife. This involves psychological assessment Liability
report prepared by the physician of the wife. The husband
testified on the obtained report (not known how he got it). Under the latest amendment, while they may not be compelled
The wife objected to under patient-physician privilege. to disclose the identity of their sources, they are always liable
SC: the privilege only covers person authorized to practice for libel or any applicable crime if it is established that the
medicine, surgery or obstetrics. The husband is not a disclosure of the information constitutes the crime. They ran
physician, therefore, not covered by the privilege. the risk of criminal or civil liability if it turns out that their
sources are not accurate. They may not reveal but they can be
The proper objection should have been hearsay, not liable. That is the responsibility that they assume.
privileged communication rule because the husband will
be testifying on the matters contained in the psychological 6. PUBLIC OFFICIALS OR OFFICERS
evaluation report. Findings were not made by him but by
the physician so, he has no personal knowledge of the During or after their term cannot be examined as to any
report. information given to them in confidence if the court finds that
public interest will suffer from that disclosure.



Consistent with principle of agency, anyone who worked in the

doctors office are considered as agents and should therefore
be covered by the privilege.





RULE 130; Section 24. Disqualification by reason of privileged

communication. The following persons cannot testify as to
matters learned in confidence in the following cases:
Pelaez Moot Court - Evidence Transcript Team 2015-2016

Court finding, necessary bribery and when he was asked if the president instructed him
to prioritize the project after he was told about the attempted
TAKE NOTE. This rule is worded in the opposite compared to bribery, or when he was asked if whether the president
the other privileged communication rules. They may not be instructed him to approve the project, Neri refused and the
examined if the court makes a finding. There must be a court Executive department refused invoking executive privilege.
finding that the disclosure will cause prejudice to the public
interest. Without the courts finding, public officers can be Learning the lesson too well from the Nixon case, the
examined. Executive invoked executive privilege on the diplomatic
relations. They said that the disclosure of the information
Executive privilege sought to be obtained will strain the diplomatic relations
between Republic of the Philippines and Peoples Republic of
Common doctrine or principles involving public officials is the
China. They were sustained there.
executive privilege or the presidential communication privilege.
Applied in the famous or infamous case involving Richard
Nixon. The Watergate scandal.

During the incumbency of President Nixon, some of his aid or ADMISSION AGAINST INTEREST
supporters planted bugging device inside the headquarters of
the other party, the Democrats. The HQ of the Democrats was Section 26. Admission of a party. The act, declaration or
located in Watergate building. When the intruders got caught, a omission of a party as to a relevant fact may be given in
massive investigation was initiated. Some of the closest evidence against him.
advisors and supporters of Nixon were implicated. A special
prosecutor was appointed to pursue the investigation. This is called as admission against interest. This admission is
extra-judicial and against the interest of the declarant not in
There was allegation that President Nixon tried to cover up to favour of the declarant.
save his advisors. To determine if Nixon was guilty of cover up,
the special prosecutor applied for issuance of subpoena duces Admitter not in court testifying
tecum for the production of the tape recordings of the
Extrajudicial contemplates of a situation where the party made
Presidents conversation with his aides and advisers. Every
an admission to another and the one who heard the admission
conversation in the White House is tape recorded. Nixon
is in court testifying.
vigorously opposed the production of the tapes knowing that
this could implicate him cause he really tried to cover up. He So if Mr. Pol admitted to Mr. Servaction that they really raped
invoked executive privilege. someone. Outside of court the admission was made. Mr.
Servacio is in court testifying that in one time in such place Mr.
But the SC of the US overruled Nixon. The SC said that while
Pol made such admission. The testimony of Mr. Servacio is
there is that such animal presidential communication or
admissible under Section 26 because it involves an
executive privilege, this privilege cannot be invoked on the
extrajudicial admission by a party who is Mr. Pol the accused
basis of a mere generalized interest in confidentiality without
in the case. Take note that it is not Mr. Pol who is in court,
justifying it with a need for protecting military, diplomatic and
otherwise, his admission is judicial. Not covered by Section 26
national secrets. Any invocation of the presidential privileged
but covered by Section 4 of Rule 129.
communication should be justified which Nixon failed to do.
Witness has no personal knowledge
His invocation of the doctrine was rather general. SC said it
cannot be invoked on the basis of merely invoking it. Take note that the one testifying has no personal knowledge
as to the truth or falsity of the admission.
The smarter president
So if Mr. Servacio has no personal knowledge whether it is
Our own president GMA was smarter than Nixon.
really true that Mr. Pol raped the victim. But by express
ZTE-NBN controversy. Dubbed as the Mother or Grandmother provision of Section 26 even if it is obviously hearsay because
of All Scams. he has no personal knowledge as to the truth or falsity of the
admission, it is admissible hearsay. It is hearsay yet
When the Republic of the Philippines entered into a contract admissible.
for this National Broadband Network to computerize the whole
government facilities, because it was so huge, it was proposed Why is it admissible even if it is hearsay?
to be financed by Peoples Republic of China. Allegations of
This was explained in the case of Extrada v. Disierto.
bribery and corruption surfaced. The Senate initiated
investigation hearings and invited officers involved in the SC said that admission against interest is by its very nature
project. One of whom was the NEDA Director Romulo Neri. hearsay but it is admissible hearsay. Hearsay evidence is
inadmissible because of absence of cross-examination. The
Neri disclosed that the then chairman of the COMELEC
right to cross-examine is a fundamental against whom an
Benjamin Abalos offered him 200M just to approve the
evidence is offered. If an evidence is offered against a party,
contract. When he was pursued by the Senators if he disclosed
that party has the right to confront the evidence. So if a witness
to the president the attempt of bribery, he answered in the
comes forward with a testimony adverse against a person
affirmative but when he was asked if the president followed up
against whom the testimony has been offered, that person has
the project after he told the president about the attempted
Pelaez Moot Court - Evidence Transcript Team 2015-2016

the right to cross-examine the source of that information. 1. Admission made by a partner or agent
Without the cross-examination, evidence is hearsay. In this 2. Admission by co-conspirator
case of Section 26, there is really no cross-examination there 3. Privies
because the source of the information is the declarant himself. 4. Admission by silence
The normal situation is if someone accuses another say for
Two persons involved in Section 26
example Mr Servacio accuses Mr Miralles of a crime, Miralles
has a right to cross examine Mr Servacio. So if Mr Servacio The res inter alios acta of the first branch is premised on the
confides to Mr pol that he saw Mr Miralles raping Ms Yap and fact that the admission made someone should not prejudice
Mr Pol now is in the stand in a prosecution for rape against Mr the rights of another. In other words, this involves two persons.
Miralles, the witness is Mr Pol, not the one who was the source And the admission is being offered in evidence through the
of the information. While he is in the stand, Mr Miralles cannot testimony of someone who heard the admission made by
cross examine Mr Pol as to the falsity or truthfulness of the another. So in Section 28 as opposed to Section 26, in section
statement of Mr Servacio implicating Mr Miralles. That is why 26 there are only two persons involved there.
the testimony of Mr Pol as to the statement of Mr Servacio is
hearsay, not admissible, for lack of cross examination. The declarant and witness who heard the declaration who is
now in the witness stand.
But in Section 26, the scenario is different. The one who made
the admission is Mr Miralles himself and the admission made In the example, Mr Miralles admitted to Mr Pol that he indeed
by Mr Miralles outside of court was heard by Mr Sercvacio. Mr raped the victim. Mr Miralles is the declarant Mr Pol is the
Servacio here takes the witness stand. But the testimony of Mr witness who now testify as to the admission made by Mr
Servacio is not based on his personal knowledge but Servacio Miralles. There are two persons involved. The declarant and
will only reiterate to the court what he heard from Mr Miralles. the witness. The witness is not the declarant.

So Mr Miralles who has the right to confront the source of the Three persons in Section 28
information in the first situation is not expected to cross-
In Section 28, there are three persons involved. The declarant,
examine himself in the situation presented by Section 26
the witness who heard the declaration, and the person to
because he is the very source of the information.
whom the declaration is imputed.
This is why if the lack of cross-examination is the reason for
So in the example, Servacio, Pol and Miralles, Mr Servacio
the inadmissibility of hearsay, in admission against interest,
admitted to Mr Pol that together with Mr Miralles they raped Ms
cross-examination is not available or possible and therefore
Yap like beast. The declarant is Mr Servacio. The witness who
the reason for the rule is not applicable. Therefore, even if it is
heard the declaration is Mr Pol is now in the stand. Mr Pol will
hearsay, it is admissible.
now testify that in one time in a certain place, Mr Servacio
The need to cross examine is not possible. You cannot cross- admitted to him that Mr Servacio and Mr Miralles raped Ms
examine yourself. You can present evidence to controvert the Yap. Mr Miralles is the person against whom the admission is
statement of the witness who imputed the admission to you. imputed because his liability is now being established by the
But cross-examining yourself is not physically possible. That is admission made by Mr Servacio.
the justification.
Three persons are involved under Section 28, Res Inter Alios
You distinguish this from section 28. Acta of the first branch. This testimony of Mr Servacio which is
now being testified on by Mr Pol is not admissible against Mr
Section 28. Admission by third party. The rights of a party In the exceptions mentioned, the admission made by a partner
cannot be prejudiced by an act, declaration, or omission of is admissible against the other partners. The admission made
another, except as hereinafter provided. by one conspirator is admissible against the other conspirators.
The admission of the predecessor is admissible against the
Res Inter Alios Acta, First branch
successor. Literally there are different persons involved. The
An act declaration or omission by party is not admissible declarant and the person bound by the declaration.
against another.
But why are these considered exceptions?
So in the example, the testimony of Mr Servacio implicating the
Take note that the main characteristics, the common
crime to Mr Miralles, this statement of Mr Servacio is being
denominator of these exceptions is the fact that they have
testified by Mr Pol in the witness stand. That testimony cannot
common interest.
be admitted because an act or omission made by someone
should not prejudice the right of another. It is res inter alios Partners have identical interests in so far as the partnership.
acta of the first branch. Conspirators have identical interests in so far as the
conspiracy. Predecessor and the successor have identity of
Again like Section 26, Section 28 is extra-judicial admission.
interests in so far as the property.
The rule in admission here all refer to extra-judicial. Take note
of that. In other words, even if they are physically different individuals
or parties, because of their identity in their interest, the law
There are exceptions of course to res inter alios acta of the first
considers them as one and the same so that the admission
Pelaez Moot Court - Evidence Transcript Team 2015-2016

made by a partner is deemed as an admission of all the a) The declaration by the predecessor must be made
partners. Admission made by one conspirator is deemed to be while the predecessor was holding title to the
an admission of all conspirators. property.

So that it is as if the admission was made by oneself. Like

So that if the admission or declaration was made before he
Section 26, and therefore admissible against the declarant.
became the owner or after he relinquished the ownership of
EXCEPTIONS the property, the exception does not apply.

Lets go to the first exception City of Manila v. Jacinto Del Rosario

1. Partners, agents City of Manila initiated an action for the recovery of property
against Jacinto Del Rosario. In support of its claim that the City
Applies only when the admission is made by a partner or an is the owner of the property, the City presented two
agent. By the way, an agent is considered as an extension of documents: a petition and a letter both signed by Lorenzo del
the personality of the principal, considered as one. Rosario. In this two documents, Lorenzo offered to buy the
property from the City of Manila. So it was obvious that in the
a) Not all admissions are covered. Only admissions two documents, Lorenzo acknowledged that the ownership
made within the scope of the authority of the belongs to the City of Manila.
partner or the agent.
b) It must relate to the partnership or the agency, and It turned out that this property was acquired by Lorenzo from a
while the agency or the partnership exists. certain Roco. And after Lorenzo del Rosario acquired the
c) The partnership or the agency is shown by evidence property, he in turn sold it to Jacinto. Jacinto is the present
other by the declaration or admission. owner. Lorenzo is the predecessor.

Issue: Whether the admission made by Lorenzo in the two

documents is evidence against Jacinto.
There is a partnership between Mr Servacio and Mr Pol in a
SC said that for this exception to apply, it is necessary that the
massage clinic. The admission of Mr Servacio that they
admission must be made by the predecessor while the
allowed prostitution in their massage clinic is admissible
predecessor was still holding title to the property. In this case,
against Mr Pol because it relates to the partnership but if Mr
the first document was prepared, signed, and executed by
Servacio makes an admission as the personal life of Mr Pol
Lorenzo before he became the owner. Precisely because it
that is not covered even if they are partners. The need for was an offer to buy the property.
independent evidence is also required not just the declaration
or the admission. On the other hand, the letter which was also presented to the
City Council of Manila, it was prepared and sent to the City
2. Co-conspirators
Council of Manila after Lorenzo sold the property to Jacinto.
The same requirements. The admission by a co-conspirator First letter was made before Lorenzo became the owner.
should relate to the conspiracy and during the conspiracys Second letter was made after Lorenzo sold the property to
existence and the conspiracy must be established by evidence Jacinto. No longer the owner.
other than by the declaration or admission by co-conspirators. Gevero v. IAC
The admission must relate and made during the existence of
the conspiracy. This also involves a property which Del Monte Coporation
purchased from Lancero in 1964 who in turn bought the same
Most admissions made by conspirators are done after arrest or
property from a certain Gevero in 1952. 12 years apart. This
commission of the crime. This is not the one contemplated
property was originally owned by Teodorica Babangha the
under the exception. What is contemplated by the exception is mother of Gevero from whom Lancer bought the property.
an admission made while the conspiracy is still in existence.
Such as during the planning stage or at the very least, while When Teodorica Babangha died, her children including Gevero
the crime is being perpetrated but never after the executed an extrajudicial partition including the portion which
consummation of the crime. Del Monte Corp purchased from Lancero which was purchased
from Gevero. When Del Monte Corporation learned about the
Again, independent evidence of conspiracy is required.
extrajudicial partition of the property, Del Monte Corporation
3. Privies instituted an action to quiet title to declare the extrajudicial
partition a nullity in so far as the subject property is concerned.
This contemplates of a situation wherein the ownership of the
property passes from one person to another. Predecessor to But during, the trial the children of Teodorica, in their effort to
successor. The admission made by the predecessor is defeat the claim of Del Monte, presented a document entitled
evidence against the successor because in a situation Settlement to Prevent or Avoid Litigation purportedly signed by
involving transfer of ownership, the successor is deemed to be Lancero, the predecessor of Del Monte, wherein Lancero
stepping into the shoes of the predecessor. So one in the made an admission that the transaction that he had with his
same. own predecessor Gevero was defective. He acknowledged that
his title was defective. The children of Teodorica argued that
But take note of the important requisites. the admission made by Lancero in that document is evidence
against Del Monte his successor.
Pelaez Moot Court - Evidence Transcript Team 2015-2016

This admission was sought to be admitted against Del Monte the country. This was his reaction to the suggestion proposed
under this exception. Admission by Privies. by Angara.

But the SC saw it the other way. For admission by privies to When Estrada questioned the swearing in of GMA as
apply, the admission must be made while the predecessor was successor, the issue came out as to whether he really resigned
still holding tittle to the property, not before, not after. from presidency. Since resignation is matter of intention, SC
had to grapple with the issue as to whether the acts of Estrada
In this case, the admission made by Lancero as contained in prior, during and after leaving Malacanang indicates intention
the Settlement was made in 1968, 4 years after Lancero sold to resign.
the property to Del Monte. He was no longer holding title to the
property at the time of admission. Therefore, it is inadmissible The SC had to sift to the entries found in Angara diary which
under Res Inter Alios Acta. contains the details of their discussions including the
suggestions to Estrada and his reactions to the suggestion.
Estrada argued that he never resigned. It was suggested to
him but he never accepted the proposal.
SC said that based on the Angara diary, it was obvious that his
Section 32. Admission by silence. An act or declaration
reaction to the suggestion was anything but not protest. He did
made in the presence and within the hearing or observation of
not object. By simply saying that he does not want to get out of
a party who does or says nothing when the act or declaration is
the country or by his silence about it constitutes adoptive
such as naturally to call for action or comment if not true, and
admission. He was in effect accepting the suggestion to resign.
when proper and possible for him to do so, may be given in
evidence against him. It was also argued that the Angara Diary should not be
admissible because he was not the one who wrote the entries.
Q: Why is this an exception?
SC said that one of the exceptions to the res inter alios acta
A: If someone does or says nothing on the face of a
rule is the admission by an agent. Angara was then the little
declaration made by another and the declaration is of such
president. As alter ego of the president, his actions are
nature that would call for denial or action if it is not true, that
deemed to be actions of the president. Admission of the agent
declaration is deemed to be the declaration of that person who
is admission of the principal.
does or says nothing.
In effect, it is as if the admission was made by the party
himself, even if originally that admission was made by Do not confuse the admission by silence or adoptive admission
somebody else. in a situation where the right to silence applies. Any admission
Adoptive Admission made in instances where the declarant has the right to remain
silent is an exception. It cannot be considered as admission by
There is that other doctrine essentially the same as admission silence or adoptive admission. That silence cannot be taken
by silence. This was enunciated in the case of Estarada v against that person. To rule otherwise is to negate the right to
Disierto. remain silent that is constitutional.

SC defined it as a parties reaction to the declaration or act of

another wherein it is reasonable to treat such reaction as an
Res Inter Alios Acta, Second Branch
admission to what was stated or implied by another.
The so called Prior or Similar Conduct Rule.
Unlike admission by silence where the admission lies in the
silence of the parties, who was supposed to act or to do Section 34. Similar acts as evidence. Evidence that one did
something or to say on the face of the statement or or did not do a certain thing at one time is not admissible to
declaration, this adoptive admission centers on the partys prove that he did or did not do the same or similar thing at
reaction. This reaction can be a positive act or a negative act. another time; but it may be received to prove a specific intent
But it refers to a reaction. If under the circumstances, it is or knowledge; identity, plan, system, scheme, habit, custom or
reasonable to treat that reaction as an admission to what was usage, and the like.
stated or implied by another, that admission becomes the
admission of the party under the principle of adoptive If Mr Servacio was unfaithful at one time, it is not admissible in
admission. evidence that he is unfaithful at another time. This rule
recognizes that there is always a second chance.
The Estrada case involves the infamous Angara Diary.
So an employee who was dismissed for infraction committed in
During the remaining days of Estradas presidency, Angara the present year cannot argue that he cannot be guilty
was the executive secretary. When Estrada realized his because in the five years he has been an awardee or model
support was dwindling, especially when the AFP withdrew their employee. The fact that he was a very good very dedicated
support from him, Angara suggested to President Estrada to employee for 5 years is not admissible in evidence that he is
consider graceful exit by resigning. But on the face of this always a good and dedicated employee at the present year.
suggestion Estrada instead of expressing his protest or That is the long and short of it.
objection simply commented that he does not want to go out of

Pelaez Moot Court - Evidence Transcript Team 2015-2016

So it doesnt follow, non-sequitur. So if you are caught by your An offer of compromise is by law considered a form of
girlfriend playing around with another, always invoke that. admission.

Not totally inadmissible Section 27. Offer of compromise not admissible. In civil
cases, an offer of compromise is not an admission of any
But it is not totally inadmissible. It may be admissible to liability, and is not admissible in evidence against the offeror.
produce circumstantial evidence as to specific intent or
knowledge; identity, plan, system, scheme, habit, custom or In criminal cases, except those involving quasi-offenses
usage, and the like. Not direct evidence of guilt in so far as the (criminal negligence) or those allowed by law to be
present act. compromised, an offer of compromised by the accused may be
received in evidence as an implied admission of guilt.
People v Irang
A plea of guilty later withdrawn, or an unaccepted offer of a
Two robberies were committed in one night. One suspect was plea of guilty to lesser offense, is not admissible in evidence
identified by the victim as one having polk mark on the face. against the accused who made the plea or offer.
On the prosecution of the second robbery, a witness testified
that one of the suspect has polk mark on the face. The An offer to pay or the payment of medical, hospital or other
purpose was to establish that the same assailant was guilty of expenses occasioned by an injury is not admissible in
the two robberies. evidence as proof of civil or criminal liability for the injury.

An argument was made that it was not admissible under What is the rule in an offer of compromise?
similar act or prior conduct rule. The fact that one may have
been guilty at one time does not necessarily follow that he is It depends on the nature of action where the offer was
also guilty at another time. presented as evidence.

SC said while it is not admissible to prove the direct guilt of the 1. Offer of compromise is not admissible as an implied
accused, it is always admissible to prove identity which is admission in civil cases.
allowed under the rules.
Under the rule, if it is done in a civil case, offer of compromise
US v Pineda is not admissible in evidence as an implied admission of
liability because in this jurisdiction, compromise is the rule. Our
The accused was a pharmacist owned a pharmacy. He was policy is to encourage compromise in civil cases. If the offer is
prosecuted for violation of Pharmacy Law because it was to be admissible as an implied admission of liability, people will
established that one customer bought certain medicine to cure be hesitant to propose compromises.
the illness of his horses but after administering the medicine,
the horses died. He complained to the Bureau of Drugs to have 2. This rule is not true if the action is done in a criminal
the medicine examined. It was found out that the medicine case
contained poisonous substance.
The policy here is that it cannot be compromised because in
To verify or confirm that the store of the accused really sells criminal cases the real offended party is the entire people.
poisonous substance, the representative of the Bureau of Society as a whole, not the individual victim. Even if the
Drugs went to the pharmacy and bought the same drugs. The individual victim who was particularly involved settles or
drugs were tested and was confirmed that the medicine compromises, that settlement will not affect the criminal
contains poisonous substances. prosecution. The compromise affects only the civil aspect but
During trial, the testimony of the representatives that they not the criminal case. Compromise of the civil aspect of the
bought the same medicine in the pharmacy of the accused was criminal case is not a ground for the dismissal of a criminal
objected to because their transaction was separate from the case.
one involved in the prosecution. The prosecution involves Exceptions provided for by law
medicine bought by the complainant before the representatives
bought on their own. 1. Quasi-offenses committed through negligence

SC said that while this may not be admissible under the prior These are criminal cases under the RPC. These cases refer to
or similar conduct rule, SC said it may be admissible to prove reckless imprudence. It could be reckless imprudence resulting
intent or knowledge because if it can be established that a in homicide, damage to property. These are criminal cases.
person repeatedly performed the same wrong doing, this The real offended party is still the State but by express
repeated act may prove intent or negligence or even malicious provision of the rule, the quasi-offenses are treated in the
intent. same category as civil cases on the matter of compromise.

Take note, Admission takes various shapes or forms. It could The reason there is that quasi-offenses are considered as less
be express or implied. There are some acts or conducts which grave offenses because of the gravity of the offense. It is not
in law are considered as forms of admission and therefore as grave as intentional crimes so settlement is allowed.
admissible in evidence.
2. Where the law allows compromise

Pelaez Moot Court - Evidence Transcript Team 2015-2016

Criminal liability involving payment of taxes can be One of the issues raised was whether these gestures of offer
compromised because the BIR is only interested in the of marriage and offer to pay money are admissibleas implied
payment than sending tax payers to jail. admission of guilt.

3. Plea of guilt later withdrawn SC said while the offer of compromise in criminal cases is
admissible as an implied admission of guilt, that only applies
If your client pleads guilty but realizes the stupidity of his plea, only if the offer came from the accused himself. In this case
your client can withdraw it as improvident plea. there was no evidence that the offer was made by the accused
himself or was made with his consent or authority.
4. Unaccepted plea of guilt to a lesser offense
Distinguish this from People v De Guzman
If the plea is rejected during plea bargaining, that plea is not
admissible as evidence of implied admission of guilt. Prosecution for rape. The family of the accused offered to pay
5. Good Samaritan Rule money to the family of the victim. It was rejected. Evidence
was produced to establish the rejected offer.
If you happen to bump somebody in the street, you bring the
SC said the offer of money constitutes an offer of compromise
offended party to the hospital and offer to pay the medical
therefore admissible in criminal cases even if the offer was
expenses or actually paid it yourself. Not admissible as implied
made by the family of the accused because it was established
admission of guilt. This is to encourage assistance to victims of
that the accused knew about it and he never did anything to
accidents instead of abandoning their victims. These covers
stop it. His inaction amounts to ratification to the offer.
hospital, medical or other expenses occasioned by the injury.
Therefore, it was admissible.
Other forms
How to nip the bud.
Other forms or acts which are considered as offer of
So what do you do if you happen to be a counsel to a party of
a criminal case and your client wishes to settle amicably? How
May include: can you make the criminal case be dismissed if the
compromise is not allowed? You are treading on a dangerous
1. Plea for forgiveness ground. You might be accused for obstruction of justice.
You ask forgiveness. That amounts to offer of compromise. How to do it.
You ask for forgiveness because you are at fault. That is why it
is so hard to settle cases if the other party demands for In a charge murder or rape, but you believe that the family of
forgiveness. It is easier to settle cases if the demand involves the offended party can be bought or can be settled. There are
money rather than a demand asking the other party to ask for people who can be bought. Loss of a family member can be
forgiveness. Personal or in writing to be published in the compensated in monetary terms. Your client instructs you to
newspaper. By asking for forgiveness, you are acknowledging settle the civil aspect. He is willing to spare no expense. Lets
guilt. There is no settlement there. settle this. Theoretically, you cannot. Settlement in the civil
case will not result in the dismissal of the criminal case. But in
2. Offer of marriage in a criminal case practice, there are courts or judges who are more realistic and
accommodating so that a mere affidavit of desistance executed
That is admissible as implied admission in acts of
by the offended party will suffice to dismiss the case. Although
lasciviousness, sexual abuse, or rape. No one in his right mind
theoretically it cannot be done, but it happens that if everybody
will offer to marry a victim of rape unless he believes he is the
is happy, there is no problem.
one responsible.
There is a crime only if someone sees it
3. Offer to pay money
If nobody complains, there is no case. If nobody sees it, there
4. Offer to restitute or give a substitute
is no crime. You watch the film Black Mass. This is the fife
story of the most feared mobster in Chicago 1960s. Whitey
Bulger. The most feared mobster who is a brother of a State
All these offer of compromise, in whatever shape or form, can senator. He was having this conversation with his son because
only be admissible against a party as an implied admission if it his son came home one day from school because his son
made by the party himself or someone with the consent or figured in a fist fight with his classmate. They were sent to the
acquiescence of the party. If done without knowledge, consent guidance counsellor and was sent home. In his conversation
or ratification of the accused, it does not bind the accused. with the son, the child asked the father if he did something
wrong. Am I in trouble? The father said youre in trouble not
People v Godoy because you did something bad. You are in trouble because
you allowed someone to see you do something bad. There is a
A teacher was alleged to have raped his student. After the
crime only if someone sees it.
commission of the crime and in order to dissuade the family
from filing a case, an Imam offered to the victim that Godoy Going back to settlement or compromise. So if the court is
marry her. Not only that. The parents and sisters-in-law of the cooperative, there is no problem.
accused went to the family of the offended party to dissuade
them from initiating the complaint for rape.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

But there are judges who are really faithful to the letter of the HEARSAY EVIDENCE RULE
law. They will not acknowledge or honor the affidavit of
desistance because strictly it is really obstruction of justice. So The HEARSAY EVIDENCE RULE as provided under Section 36, Rule
how do you get the criminal case dismissed if the judge is not 130 of the Rules of Court states:
Sec. 36. Testimony generally confined to personal
One way, do not quote me on this, you get the complainant to knowledge; hearsay excluded A witness can testify only
get lost. Take a vacation. If the family is from Cebu. Take to those facts which he knows of his personal knowledge;
vacation in Manila. Then, set the hearings three times. First that is, which are derived from his own perception,
date. Prosecutor is unable to present the principal witness or except as otherwise provided in these rules.
complainant. The prosecutor will ask the court for time to
present the complainant. As defense counsel invoke speedy GENERAL RULE: PERSONAL KNOWLEDGE IS REQUIRED.
trial. But the trial will not dismiss it at that time. Second time. If the witness testifies on facts base on another persons personal
Prosecutor will say Your honor, the complainant cannot be knowledge, that is not admissible under the hearsay evidence rule.
found. You invoke speedy trial. Third time last chance, the
same. Of course now, the court has no more choice but to Ms. Pulmones testifies that she heard Ms. Yap that Mr.
dismiss the case under the speedy trial. Otherwise, the court Padayao sexually abused her. The one testifying in court is
will also be disciplined. That is administratively for courts to Ms. Pulmones but the fact that the statement that Mr.
ignore the speedy trial act. Padayao sexually abuse Ms. Yap is not based on her personal
knowledge but base on the personal knowledge of Ms. Yap.
The dismissal amounts to acquittal. Your client cannot be The testimony of Ms. Pulmones on the matter maybe
prosecuted twice. objected to under the hearsay evidence rule.
Not all instances where witnesses testify to facts not based on his
But sometimes its not as easy as that. There are instances personal knowledge are covered by hearsay evidence rule, there are
when the judge will really insist in presenting the complainant. instances that even if that witness testifies to facts not based on his
personal knowledge, that testimony maybe admissible.
So if the complainant will not appear it is possible that a
subpoena will be issued so the complainant will be wanted on The determination on whether a statement, assertion or declaration
the run. Failure to honor subpoena authorizes the court to is hearsay and therefore inadmissible under the hearsay evidence
issue warrant. The danger there is the complainant is found rule depends on the purpose for which the evidence is offered.
and forced to testify. There is the risk involved.
HEARSAY PURPOSES. If the purpose is to prove the truth of the
Another way to protect the accused in the scenario because statement, assertion or declaration then that evidence is offered for
the witness is forced to testify. Make sure the affidavit of hearsay purposes so that when a witness testifies to certain
desistance will not only state that the civil aspect is settled, that declaration or acts or statements, which is not based on his personal
the complainant manifest to not pursue the case, and that he knowledge, that testimony of the witness is hearsay and therefore
has reconciled with the accused of the case, not enough. inadmissible under hearsay evidence rule.
Indicate the admission on the part of the complainant some
facts that would negate the element of the crime. So that in NON-HEARSAY PURPOSES. If the testimony of those witnesses is not
event he was forced to testify, you can always confront him based on the witness personal perception or knowledge, that
with the affidavit of desistance to negate his testimony so that testimony is admissible because it is offered not for hearsay
the court will see the inconsistency and cause doubt. This purposes but for some non-hearsay purposes. The purpose is not to
places the complainant in the bad line. He may be prosecuted prove the truth or falsity of the statement or declaration or
for perjury. assertion but just to prove that a certain statement, declaration or
assertion was made regardless of the truth or falsity of such
These are the theoretical dangers. statement, declaration or assertion.
Send emissaries
Under the rules, this is otherwise referred to as the
It is also helpful for you if you are not sure if the other party is INDEPENDENTLY RELEVANT STATEMENT. The fact that the
receptive to the offer to send emissaries. Do not do it yourself statement, declaration or assertion was made is a relevant fact and
because if it is rejected, it may be traced to your client. Instruct its relevance is independent from the truth or falsity of such
someone to do it and make sure to instruct that someone to statement. If that is the purpose of the offer, even if the witness
deny any knowledge on the part of the accused or the lawyer. testifies as to facts not base on his personal knowledge, is not
covered by hearsay evidence rule and therefore that testimony is
Always premise the offer on the statement that Im doing this admissible. It is not to prove the truth of the statement but to prove
on my own do not tell the accused or his counsel so that if the that the statement was made.
offer is rejected it will not be traced to you.

Make everyone happy

The best way compromise is to make everyone happy. Make

the prosecutor happy so he will not ask for issuance of
subpoena. Make the court happy. But do not quote me on this.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

INSTANCES the witness testifies that Mr. Miralles in the middle in

the class, stands up and declares that he is the
1. Assertion, declaration or statement is independently relevant messiah, regardless of whether or not he is really the
IF IT IS THE VERY FACT IN ISSUE IN THE CASE. The issue is messiah, the fact of that assertion, declaration or
whether or not the assertion, declaration or statement was statement was made by Mr. Miralles is independently
made. If its the issue in the case, that is an independently relevant to the truth or falsity of the fact asserted in
relevant statement. It does not matter whether the the declaration. Whether it is true or not, the fact is
assertion, declaration or statement is true or false. The he made such declaration under that circumstances
following instances are typical examples involving that maybe admissible as circumstantial evidence
independently relevant statement: that Mr. Miralles is crazy,

Prosecution for libel. Ms. Yap cause the circulation of a text If Mr. Miralles executed his last will and
message describing Mr. Miralles as only hunk in appearance but testament around such time that he made such
bankrupt in performance. Mr. Miralles may feel besmirch or his declaration in the class, Mr. Miralles dies and his will
reputation malign by such circulation of such message and so Mr. is submitted to court for probate. The approval of Mr.
Miralles cause the filing of a criminal case for libel against Ms. Yap. Miralles will maybe objected on the ground that Mr.
In order to prove the existence of the allege libelous statement, a Miralles at the time he executed the will was not of
portion of that message is offered and testified to by a witness who sound mind. A witness who heard Mr. Miralles
happen to receive a copy of that text message. Regardless of declaring to the class that he is the messiah can be
whether Mr. Miralles is really hunk in appearance but bankrupt in presented in court. It cannot be objected under
performance, the existence of that statement is independently hearsay because the purpose is not for hearsay
relevant, even if that witness testifies without personal knowledge purposes but to non-hearsay purposes. It is an
as to Mr. Miralles actual condition is beside the point. The issue independently relevant statement; the purpose is to
there is whether or not such libelous statement was made and that prove the mental state of the declarant.
can be proven by the testimony of that witness who may have not
Physical condition of declarant
have a personal knowledge of the fact asserted in the statement.
Mr. Miralles and Mr. Macapobre share a room
Prosecution for grave threats. Mr. Miralles threaten Ms. Yap, with their partners together under the cover of
telling her, Im gonna blow your fucking head off! Suppose Ms. Yap darkness and they each did their respective thing.
filed a criminal complaint for grave threats against Mr. Miralles, While Mr. Miralles is doing his thing, he overheard
somebody heard Mr. Miralles uttering the alleged threatening Mr. Macapobre or the girl saying what happen to
statement. That witness may have no personal knowledge as to you man! youre sooo soft. A dispute arises as to the
whether or not Mr. Miralles really intended to blow Ms. Yaps head physical condition of Mr. Macapobre. Whether or not
off but that witness may testify as to the statement or fact that Mr. Macapobre was indeed soft at that time doesnt
indeed Mr. Miralles uttered such threatening statement. Regardless matter. The purpose there is to establish that such
of the truth of the fact asserted in the statement, the fact that the statement was made by the girl as to probably
statement was made is irrelevant to the issue in the case, the issue establish the physical condition of Mr. Macapobre at
being whether or not Mr. Miralles made a threatening statement that time which is a circumstantial evidence of his
which is the essence of the crime. physical condition.

Prosecution for oral defamation. Libel if the allegedly libelous Credibility of witness
statement is written and oral defamation if orally done. In this
situation, the existence of the statement or the fact that the A plaintiff says the defendant owed him 1
statement was made is the issue of the case. million and despite demand, the defendant never
paid and that is why he is suing him for collection of
The instances illustrate a situation where an assertion, declaration sum of money. During the turn of the defendant, the
or statement is admissible even if testified by a person who does not defendant presented a witness to testify that during
have any personal knowledge on the truth or falsity of the the trial, they had a conversation with the plaintiff
statement but because the statement is independently relevant, who confided to her that actually that defendant has
that testimony maybe admissible under the independently relevant already paid the obligation. The witness who heard
statement principle. the declaration of the plaintiff to the effect that the
defendant has already paid the obligation may be
2. The assertion, the making of the assertion, declaration or presented in court to testify that on such date, the
statement may not be the fact in issue in the case but it plaintiff made such declaration that the defendant
maybe CIRCUMSTANTIAL EVIDENCE of a fact in issue in has already paid the obligation. Of course, the
the case. If the making of the assertion, declaration or witness has no personal knowledge whether Mr.
statement is established by the witness, that making of Miralles has already paid the obligation or not. He has
such assertion, declaration or statement can be used as a no personal knowledge as to the fact asserted in the
circumstantial evidence to prove a fact in issue. declaration made by the plaintiff but it doesnt
matter because the purpose is just to establish that
Mental state of declarant on such a date, there was such declaration, assertion
If Mr. Miralles suddenly stands in front and or declaration made by the plaintiff which is contrary
declare that he is a messiah of God. the logical to his statement made in court.
conclusion there is that Mr. Miralles must be crazy. If
Pelaez Moot Court - Evidence Transcript Team 2015-2016

The existence of other inconsistent statement whose behavior in court while testifying can spell the difference
maybe the evidence of the existence of such other between truth and falsity. There are witnesses who are not good in
inconsistent statement made by the plaintiff maybe lying. On the other hand, courts are supposed to be skilled in
admitted in court to establish circumstantial evidence that observing demeanors and behaviors of witnesses while testifying
the plaintiff is not credible. Again independent relevant and these demeanors, behaviors would determine whether the
statement, what is being established is there is the fact witness is falsely or truthfully testifying. If the original source of the
that at another time, the plaintiff made an inconsistent declaration, assertion or statement is not in court, it deprives the
statement. Which goes into the credibility of the party. court the opportunity to observe the demeanor of the witness and
therefore, it deprives the court of the opportunity to determine
When the assertion, statement, declaration is offered to establish whether the source of that information is telling the truth so
particular date, particular place and particular identity of an therefore not reliable.
Oath or affirmation. Since the original source of the statement,
Ms. Yap filed a case against Mr. Miralles for a crime of assertion or declaration is not in court, he cannot take an oath. It is
multiple rape; the defense of Mr. Miralles was alibi. the taking of the oath or affirmation that compels a witness to be
He claims that at the time of the alleged incident truthful because of the consciousness that if he is caught telling a lie,
which allegedly took place in Cebu City, he was in Jolo he may be faced some adverse consequences like criminal
preaching, he was a Muslim. In order to prove that in prosecution for perjury. We have a presumption that when a
such time Mr. Miralles was in Jolo, Mr. Miralles may witness takes an oath with consciousness of a possible repercussion,
present a witness who happen to be present when he he is likely to be truthful although not necessarily. Because of these
was preaching in Jolo. The witness would now say three requisites, absence of any or both, some or all makes the
that on this day at such time on this place, I was testimony or evidence inadmissible under the hearsay evidence rule.
present there because I was also a member of the
cult of Mr. Miralles and I heard him say that he is the Why is cross-examination, demeanor of evidence or oath
son of God. Whether Mr. Miralles is a son of God, it or affirmation important such that absence of any, some or all
doesnt matter. The witness may testify that when he makes the testimony or evidence inadmissible under the hearsay
was at the place and time, he heard Mr. Miralles evidence rule?
make the statement to prove that Mr. Miralles was in
Jolo at the time and place of the alleged crime TESTIMONIAL QUALITIES. The law requires the witness to
therefore Mr. Miralles could have not been the party possess some testimonial qualities. It is the presence of cross
responsible for the multiple rape. examination, the presence of the opportunity of the court to
observe the demeanor of the witnesses and it is the taking of the
The witness will establish there that on that day on oath or affirmation that provides the mechanics to ensure that the
which day the crime was actually committed, Mr. witness possesses the required testimonial qualities.
Miralles was in Jolo, that establishes Mr. Miralles
alibi. Alibi is a circumstantial evidence. It is a Testimonial Qualities required of a witness:
circumstantial evidence that would negate the
1. The witness sincerity or his willingness to testify truthfully.
allegation that he was the person responsible for the
This is otherwise referred to as the witness veracity. The
crime. In all these instances a particular assertion,
issue there is whether the witness has the motive to lie. Is
declaration or statement even if testifies to by a
the witness really sincere? Does he have any reason to
witness who has no personal knowledge of the truth
falsely testify?
or falsity of facts contained in the statement,
assertion or declaration may still be admissible This can be determined by cross-examination. You cross-examine
because it is not covered by the hearsay evidence rule the witness is he has any bias against the other party. If he has any
but instead it is covered by independently relevant motive to falsely testify. It can be achieved by cross-examining the
statement rule. witness. The court in observing the witness can establish whether
the witness is being truthful or the witness is lying like when the
witness does not look at the judge eye-to-eye, it is an indication of a
false witness. If you present your witness, tell the witness to look
1. Absence of cross-examination the judge in the eye, the judge will assume your witness is truthful. If
2. Absence of demeanor evidence the witness hesitates before answering the question, it is obvious
3. Absence of oath or affirmation that the witness is overthinking his answer, that is a sign of a false
witness because a truthful witness answers spontaneously. These
Why is there absence of cross-examination, demeanor evidence or are rules that the court may observe in determining the demeanor
oath or affirmation in a situation covered by hearsay evidence rule? evidence.

Cross-examination. There is absence precisely because the original 2. The witness should possess the ability to testify accurately.
source of the assertion, declaration or statement is not the one in A witness may be truthful but his testimony may not be
court testifying because the witness testifying is simply the one who accurate. It is two different things. A witness may have no
heard it from the original source. The original source, not being in motive to lie, he may be the most neutral witness but it
the stand cannot be cross-examined and cannot be observed by the doesnt necessarily follow that his testimony should be
court. taken by the court because it is possible that while he may
be sincere, he may not be capacitated to testify accurately.
Demeanor evidence. In appreciating the testimony of a witness, the
Court will observe the witness. Human nature. There are witnesses
Pelaez Moot Court - Evidence Transcript Team 2015-2016

Accuracy and reliability of a witness testimony depends on three believe or disregard the testimony of a witness. Its a fact of life that
factors. words can hardly perfectly describe events, disputes arise because
of misunderstanding, because of the language use
1. The witness ability to observe or observation. A witness miscommunication. Just like the witness, a victim of rape testifying,
who claims that he saw the incident because he was just there is a difference between penetration and touching. If the
an arms length away from the crime scene as against the witness sees one thing but says another thing, there might be
witness who claims that he saw the incident but he was 30 problem with the issue. There might be a problem with truth or
meters away, there might be a difference in the ability to falsity. A factor relating to transmission of ones impression of the
observe. So that under normal circumstances, a witness perception to the judge is to be looked into under language or
who is nearer to the point in issue is slightly to be communication becomes important.
believable as to someone who is far away. If the witness
admitted that at the time of the incident, it was dark and How do you determine if the witness possesses the capacity to
he was not wearing his eyeglasses and that he admitted narrate accurately the impression of his perception?
that he was suffering from some eye problem that it can
be established that the witness has no capacity to observe Again, you need cross-examination. It is always
the incident. In that respect, his testimony on the matter helpful if other than asking the witness to testify on the
maybe incredible. My not be believed by the court occurrence of a certain fact, it is always helpful that you
because of the absence of the ability to observe. ask the witness to demonstrate so that court will now
have a visual picture of the incident, the court will
These are the things that you need to establish during your cross- appreciate how the event or an act was actually
examination. In cross examination, it will determine this specific committed. Its different when the judge merely looks at
factor - the ability to observe. The issue there is whether or not the the transcript - the words. You appreciate the occurrence
witness perceives the incident and that if the witness did perceive of an event by just listening to the testimony of a witness
the incident, whether he perceive it accurately. That is the question is different from actually seeing the witness demonstrating
that should be answered in so far as the first factor is concerned how an event took place or how the act was committed.
This cannot be achieved if the witness is not personally in court
2. The ability of the witness to remember. He may have because he cannot be cross-examined, he cannot be observed, he
observed the incident close and personal but he may be suffering cannot be asked to take an oath.
from some mental condition that he could not recall even forgets his
own name at a time, there is something wrong with his memory. So because hearsay deprives the adverse party the opportunity to
The question that has to be ask there is does the witness retain an cross-examine, because it deprives the court from obtaining
impression of his perception. He claims he had perceived something demeanor evidence, and because it deprives the court from
or witness something but the question in the second factor is does subjecting the source of the statement to an oath or affirmation, the
he have an impression of what he claims he had perceived. You now end result there is the testimony of the witness who simply
go to the second factor which is memory - recollection. If you want reiterates what he claims he heard from the source of the statement
to establish that the witness lacks the capacity to remember or is unreliable. It doesnt enjoy the presumption of reliability. Its
recall, then you can establish that he is taking medication, he is untested by cross-examination.
already old, suffering from alzheimer, it is precisely intended to
In other words, the reason behind hearsay has everything to do with
establish that the witness lacks the ability to testify accurately
RELIABILITY. If the witness testifies on things not based on his
because his memory is compromise.
personal knowledge, that testimony is unreliable. What makes the
How do you test if the witness has the ability to recall and testimony reliable is when the witness is subjected to cross-
remember? examination, demeanor evidence and oath or affirmation. But these
are not possible if the source of the statement is not in the stand.
Cross examination and demeanor of evidence because if
the witness if ask with the specifics of the incident that he claims he That explains why hearsay evidence is inadmissible.
had witness will take a long time to recall or remember, the judge
Take note: hearsay evidence rule, like all other exclusionary rules is
will definitely doubt the ability of the witness to recall or if the
not self-executory; it must be invoked by the adverse party and it
witness makes an inconsistent statement in so far as particular
must be invoked timely. So that even if hearsay evidence is
details of the event he claims to have witness.
inadmissible, it may be admitted by the court if the adverse party
3. The ability of the witness to transmit, narrate or fails to object to it seasonably. So what is the effect of failure to
communicate. It is possible that the witness has the ability object seasonably? Hearsay evidence, otherwise inadmissible,
to observe. No problem. He has the ability to memorize, becomes admissible!
recall perfectly the incident because he regularly takes
But even if the hearsay evidence becomes admissible and even if it is
shabu but he may have problem with language.
in fact admitted by the court because of failure of the adverse party
Remember, your thoughts are being communicated into
to object, because of its inherent unreliability, the court will
words and language. What one may be thinking may not
nonetheless disregard it when it is time to appreciate the weight and
be the message the other person appreciates if something
sufficiency of evidence. It is unreliable because, as said, it has not
is lost in the translation. That is the problem of
been subjected to the 3 tests: cross-examination, demeanor
communication, transmission.
evidence and oath or affirmation.
The issue there is does the witness language or words
Now lets go to exceptions.
accurately conveyed the impression conveyed his impression of his
perception. It is an important factor to consider whether or not to
Pelaez Moot Court - Evidence Transcript Team 2015-2016

EXCEPTIONS his impending death, with his wife beside him, the only dying
declaration that may be admissible in case Mr. Miralles dies is a
There are 11 exceptions in the Rules but there are more. Disinfect statement relating to the cause like the identity of the assailant
your mind of the thinking that the exceptions are only those and any other facts having causal connection to the death.
mentioned in the Rules of Court. There are other exceptions.
So if Mr. Miralles, conscious of his impending death, confides to
1. Dying Declaration the wife that actually the daughter of our house help is my
child, it has nothing to do with the surrounding circumstances
Section 37. Dying declaration. The declaration of a dying of his death. Its not covered by dying declaration. The wife may
person, made under the consciousness of an impending death, not be called to testify if, for example, on the basis of that
may be received in any case wherein his death is the subject declaration, a claim against the estate of Mr. Miralles is filed
of inquiry, as evidence of the cause and surrounding claiming that the child is Mr. Miralles illegitimate child. The
circumstances of such death. (31a) wife may not be presented to prove that indeed Mr. Miralles is
the father of the child on the basis of that dying declaration
A dying declaration is hearsay but it is admissible hearsay because it because that is not covered, that is not the kind of declaration
is an exception to hearsay rule. contemplated by the Rules.

Do not confuse this with independently relevant statements because For example, conscious of his impending death, Mr. Miralles
the latter is not hearsay because the witness there testifies that he confessed to the police or to anybody else actually I was the
heard or knows a certain act, a certain statement, assertion or one who raped Ms. Yap 2 months ago, that statement may be
declaration; insofar as the making of that statement, assertion or made while Mr. Miralles was conscious of his impending death
declaration, that witness has personal knowledge. What he has no but that declaration relates to something else. It does not have
personal knowledge of is the truth of the assertion. So its not anything to do with the cause and surrounding circumstances
actually hearsay because the purpose is just to prove that he of Mr. Miralles death.
actually heard the assertion.
In one Bar Examination, a question was asked if a dying
But in exception to hearsay, its really hearsay because the person declaration may be received in evidence in the prosecution for
testifying has no personal knowledge as to the truth of the dying robbery. Do it refer to cause and surrounding circumstances of
declaration and the purpose of his testimony is to prove the truth of death? Some opine that its not admissible. But others say that
the assertion. But because it is an exception, it is admissible. its still part of the surrounding circumstances because if death
occurred during a robbery, the chance there is complex crime:
Justifications/Rationale robbery with homicide. Because robbery with homicide is in
law considered as one offense. So it can be argued that the
a. Trustworthiness dying declaration may be admissible in evidence to prove the
The law presumes that someone who is conscious/aware of his robbery, robbery being a circumstance of the death.
impending death is likely to tell the truth. So you need to be b. The dead man/declarant must have been competent to
dying in order to be truthful. This is based on the premise that a testify had he survived.
person staring at his own death would not make fearless,
reckless, false accusations against another. Because according The witness there really is the dead but the one who heard the
to the framers, knowledge or awareness of ones impending declaration practically steps into the shoes of the dead man. So
death is so solemn and awful that it amounts to an oath. Death that if the dead man himself, had he been alive, is not
is solemn. competent to testify on his dying declaration, then it follows
that the witness who heard him make the declaration who
merely reiterates what he heard from the dying man would not
b. Necessity also be allowed to testify. A spring cannot rise above its source.
The declarant there is dead. Take note: No dying declaration The source there is the dead man. If the dead man, had he
until and unless the declarant dies. With the declarant already been alive, could not testify because he is not competent, with
dead and in most cases the only evidence available is the more witness that the witness who heard the declaration
testimony of the declarant especially in crimes committed in cannot.
secrecy, disallowing the admission of dying declaration through This is the ruling in the case of Geraldo & Ariate vs. People of
the testimony of a witness who heard the declaration would the Philippines: The victim was attacked under cover of
promote/cause a miscarriage of justice. So in order to prevent a darkness and he was attacked from behind by his assailant. The
failure of justice, the court allows the admission of the crime happened along the road. Now it was claimed that when
testimony of a witness who happens to have heard the the victim was attacked the place was not properly illuminated
declaration of a dying and then dead man. So at least you have and that the assailant attacked him from behind. After the
that opportunity to present a witness even if hearsay. attack, one of the victims family members rushed to the victim
REQUISITES and the victim allegedly made a dying declaration identifying
the alleged assailant. The victim died. During the trial the
a. The declaration must relate to the cause or the witness who heard the declaration testified. But it was
surrounding circumstances of the victims death. established during the trial that the place was not properly
lighted and the assailant came from behind. So the SC said if
It does not include other statements, other declarations which the assailant came from behind then obviously the victim was
do not deal with the cause and surrounding circumstances of not in a position to identify the assailant. So even if the victim
the victims death. So if Mr. Miralles is dying and is conscious of were alive, even if he survives and testifies, his testimony
Pelaez Moot Court - Evidence Transcript Team 2015-2016

would not have had any value at all because he was not in a consciousness of an impending death. What happened
position to observe or identify the assailant. And so the SC said afterwards does not undo the declaration already made under
one of the requisites for dying declaration is: the victim, had he consciousness of an impending death; it is still trustworthy. But
been alive, should himself be competent to testify. Otherwise, jurisprudence has it that its no longer covered by dying
no dying declaration. declaration because under the last requisite (take note), it says
there that a dying declaration is admissible in a case where the
(You can cross-examine him but not as to the truth of the subject of inquiry is the death of the declarant as evidence of
declaration. Maybe you can cross-examine him as to the cause and surrounding circumstances of the death. Take note
circumstances of him hearing the declaration. You can assail his the dying declaration must relate to the very incident and
perception on that respect. Because he can claim that I was circumstances that gave rise to the dying declaration. In other
there when the dying declaration was made; I heard it myself. words, what is contemplated under dying declaration is the
You can cross-examine him on that. But the absence of cross- declarant-victim must die as a result of the incident that gave
examination which is referred to by law, which is absent in rise to the declaration. Thats the prevailing rule. If the death
hearsay evidence, is cross-examination as to the truth of the occurs due to factors other than the incident that gave rise to
declaration. Now in hearsay, the witness, the one who heard the declaration, its no longer covered. Because if it is
the declaration, cannot be cross-examined as to whether the established that the victim survived after the attack but died
statement is true because precisely he was not the one who because of cardiac arrest, theres no case against the assailant
saw the incident. So if the dying declaration says that it was X there. He died because of other factors.
who was the assailant, the testimony of the witness who heard
the declaration may not be offered to prove that it was really X
who was the assailant.)
Take note, in some cases, the SC ruled that one of the essential
c. The declaration must be made under consciousness of an requisites for dying declaration is that the dying declaration is
impending death. offered in evidence in cases for parricide, murder, homicide,
involving the death of the declarant-victim (the crimes are specified,
Take note. As I emphasized earlier, one of the justifications for take note) but dont be misled because Rule 130, Sec. 27 is explicit:
dying declaration as an exception to hearsay is its presumed dying declaration may be received in evidence in any case where the
trustworthiness and this arises from the fact that the victim, subject of inquiry is the death of the declarant. So any case where
when he made the declaration, was conscious of his impending the subject of inquiry is the death of the declarant.
death. Its the consciousness of an impending death that makes
it trustworthy. One example of a case where the subject of inquiry is the death of
the declarant but not parricide, murder, nor homicide is a civil case
So what is meant by consciousness of an impending death? Its for recovery under an insurance policy. Suppose the victim during
a state of the mind. It is required that a fixed consciousness of his lifetime secured an insurance policy over his life in favor of his
an inevitable/impending death is entertained by the dying wife for example. As is usual in insurance coverage, there is that so-
victim. The dying victim must entertain the called excepted risk, the excepted risk being death by suicide. Its
thought/thinking/idea that his death is a certainty, inevitable, common. In every life insurance policy, suicide is not covered.
impending. This can be determined by his acts prior and during Otherwise people who want to make money would insure
the attack or the making of the declaration. If the victim would themselves and then commit suicide. So if the insurer refuses to pay
say I dont think I would survive, it is an indication that he is the insurance proceeds because it claims that the insured
conscious of his death. Or if the injury would be so fatal. It committed suicide, in that case for recovery of the insurance
should be determined by the surrounding circumstances. The proceeds, obviously death of the insured becomes the subject of
important factor there is the fact that the victim/declarant has inquiry there. Now if you want to prove that his death was not
abandoned all hopes of survival. It doesnt matter whether caused by suicide but murder, you can always present the witness
death occurred immediately after the declaration. Its not the who heard the dying declaration. The witness would say that
rapid succession of death in point of fact but its consciousness according to the victim he was stabbed to death by so and so. Dying
of an impending death. declaration under this circumstance or situation is admissible.
Although it is a civil case, it is a case where the subject of inquiry is
What happens if at the time the declaration was made the
the death of the declarant.
victim honestly believed that he would inevitably die but for
some stroke of fortune/luck he survived? What happens to the That demonstrates the point that dying declaration is not only
dying declaration? And when he already survived, a admissible for criminal cases for murder, homicide, parricide. So
supervening event took place and this time around the victim- sometimes their decisions cant be trusted. Im sure there are cases,
declarant died. Maybe when the victim realized in the hospital maybe some of those I assigned, the SC said there that there is this
that he is already out of danger he was too happy and last requisite (murder, parricide, or homicide) but its not. Although
overjoyed to realize that anytime he might die so unfortunately these are the common cases.
he had a cardiac arrest because he could not contain his
excitement that he survived and so he died. Is that dying 2. Declaration against interest
declaration? Take note that what makes dying declaration
admissible is the fact that its trustworthy and it is trustworthy Section 38. Declaration against interest. The declaration
because it was made under consciousness of an impending made by a person deceased, or unable to testify, against the
death where the declarant was presumed to be truthful. The interest of the declarant, if the fact is asserted in the
fact that death occurred due to other supervening fact does not declaration was at the time it was made so far contrary to
in any way detract the trustworthiness of the declaration declarant's own interest, that a reasonable man in his position
earlier made because the declaration was made under would not have made the declaration unless he believed it to

Pelaez Moot Court - Evidence Transcript Team 2015-2016

be true, may be received in evidence against himself or his interest unless he/she believes it to be true. When someone
successors in interest and against third persons. (32a) makes a statement against his own interest, chances are he
might be telling the truth. So anyone who heard that declarant
This sounds the same as Sec. 26, Rule 130 (Admission against make that declaration against declarants own interest may
interest) testify and that testimony, even if hearsay, is admissible.

b. Necessity
Section 26. Admission of a party. The act, declaration or
omission of a party as to a relevant fact may be given in Because the declarant is dead or unable to testify. Without the
evidence against him. (22) declarant himself available, without him testifying in court,
there might be a failure of justice unless this is made an
But its not the same. Sec. 38 is declaration against interest, sec. 26 exception to hearsay. So again, a witness who heard the
is admission against interest. These are not the same but they have declaration, if the declarant is already dead or unable to testify,
SIMILAR CHARACTERISTICS. Some are: may testify in lieu of the declarant himself.

a. Both are exceptions to hearsay evidence rule. This was the ruling in the case of Parel vs. Prudencio. This is a
case for recovery of the possession of a 2-storey residential
But sec. 26 is not considered as an exception under the Rules of building. Prudencio, the plaintiff, claims that during the
Court because it is not one of those mentioned there as construction of the 2-storey residential building he allowed the
exceptions, only 11 are mentioned and sec. 26 is not one of nd
parents of the defendant Parel to occupy the 2 floor of the
them, only declaration against interest (sec. 38). There bases building so that the parents could supervise the construction
are different. and safeguard the materials found in the premises. Years later,
when Prudencio needed the residential building for some
The basis for sec. 26 as exception to hearsay evidence rule is
purpose, he asked that parents of the defendant to vacate and
jurisprudence, Estrada v. Desierto, where the SC made a
the parents of the defendant complied, in fact they went and
definitive ruling that sec. 26, admission against interest, is
relocated abroad. After they did, the defendant who is the son
hearsay but it is admissible hearsay and so it is an exception to
surreptitiously took possession of the ground floor of the
the hearsay rule.
residential building claiming that his parents were co-owners of
Declaration against interest under sec. 38 is an exception on the building and that he occupied the ground floor upon
the basis of the Rules of Court because the Rules expressly instructions of the parents. This prompted Prudencio, the
provide that sec. 38 is one of the exceptions. owner of the building, to sue for recovery of possession. In
order to prove that the building belongs to him exclusively,
b. They both contemplate extrajudicial admissions. Prudencio presented an affidavit executed by the father of the
defendant to the effect that the father of the defendant
These are both precisely hearsay because the one in court is acknowledged long before the controversy arose that he is not
not the source of the statement. the owner of the property and instead it is Prudencio who is the
lawful owner of the property. It turned out that this affidavit
What are their distinctions/DIFFERENCES?
was executed by the father of the defendant because in the
a. Sec. 26 does not require that declarant is dead or unable past, prior to the controversy, the government through the
to testify. assessors office served him a notice of the assessment of real
estate tax and not the treasurers office attempted to collect
What is required there is that the declarant made an real estate taxes from him. But the father of the defendant
extrajudicial statement, somebody heard and the one who executed the affidavit so he may not be compelled to pay the
heard him testifies in court as to what he heard from the real estate taxes, he executed an affidavit claiming that he is
declarant. Thats enough to satisfy the requirement. not the owner of the property so why should he be made to
pay the taxes when he is not the owner, the owner is Mr.
In declaration against interest under sec. 38, the testimony of Prudencio.
the witness who heard the declaration is not admissible unless
there is proof that the source of the statement, the declarant So when the case reached the SC, one of the issues there was
himself, is already dead or unable to testify. whether or not that affidavit executed by the father of the
defendant may be admissible in evidence against the defendant
b. In sec. 26, the admission can only be admissible against because it was objected to as hearsay because the father of the
the declarant himself. But in declaration against interest defendant was not presented in court, the one presented was
under sec. 38, the declaration may be admissible not only the plaintiff. The affiant, the father of the defendant, did not
against the declarant but also against the declarants testify. The father was not subjected to cross-examination.
successors-in-interest or even against third parties.
The SC said while it is hearsay, it falls under the exceptions to
Justification (for declaration against interest as exception to hearsay particularly under sec. 38, declaration against interest.
hearsay rule) It complies with the requirements. A) The declarant there is
a. Trustworthiness already dead or unable to testify, he was abroad. B) The
declaration was made by the father before the controversy
Because of the inherent nature of the declaration. It is a arose. C) And obviously it was against the interest of the
declaration against the interest of the declarant. There is a declarant, against the interest of the father because he was
presumption in law that a person, a reasonable man, would not admitting that he was not the owner. Thats against the interest
make any declaration, statement or assertion against his own of the declarant. The SC said all the requisites for declaration

Pelaez Moot Court - Evidence Transcript Team 2015-2016

against interest are present. It is admissible under the that involves family history, these are all matters of pedigree. So if
exceptions. the question involves someones birth, the circumstances, the date,
the place, or marriage or death, or relationships, these questions
Take note that in one of the requisites is where declarant there can be established by evidence under sec. 39, acts or declarations
is already dead or unable to testify, it does not only about pedigree. Take note the evidence here is hearsay but by
contemplate of death. The declarant there is either dead or express provision of the Rules, admissible hearsay.
unable to testify. Unable to testify contemplates of a situation
where the declarant is still alive but for one reason or another So that, when you say that I was born on this particular
he is unable to testify. Take note, mere absence or date, or in this place or from this parents, -- this is obviously hearsay
unavailability is not enough. The proponent must prove by clear because these information were not obtained by your personal
evidence that efforts were exerted to produce the declarant in knowledge. You have no personal knowledge that you came from
court but to no avail. In other words, if youre the proponent, your parents.
you cannot automatically present the witness unless you wither
establish the death of the declarant or his unavailability and But why is this admissible under Section 39?
your diligent efforts to produce him before the court.
- The justifications herein include:
This was the ruling in the case of Fuentes vs. CA. This involves a 1. Trustworthiness
prosecution for murder, a stabbing incident. The accused fled. - because these are facts that a person or a family
During the trial, the uncle of the accused testified that the member should know. (Who else is more interested in
cousin of the accused admitted to him that he was the one who your private/personal circumstances other than you
killed the victim. The defense sought for the acquittal of the and your familythat is why it is presumed reliable)
accused based on that declaration made by the cousin of the - Thus, if one says that he is born from his parents,
accused, an admission allegedly made in the presence of the the law presumes it to be an accurate/reliable
uncle. The uncle was the one testifying in court about that information because he should know better
alleged admission. The defense argued that the admission 2. Necessity
made by the cousin, an admission to the effect that it was the - Because the declarant there is dead or unable to
cousin who killed the victim, is a declaration against interest testify (THUS, TAKE NOTE: Sec. 39 requires that
and therefore admissible against the declarant and therefore the declarant must be dead or unable to testify)
the accused should be acquitted because the person
responsible is somebody else. The SC disregarded this. It said - Requisites:
there is no evidence that the defense exerted efforts to 1. There must be an act or declaration about pedigree
produce the cousin who allegedly made the 2. The declarant must be dead or unable to testify
confession/declaration. Obviously the SC suspected that it was - Jison vs Court of Appeals
a strategy resorted to by the defense to acquit the accused to - An action for compulsory recognition of illegitimate
make it appear that somebody else killed the victim. So the filiation filed by an illegitimate daughter against her
point there is that the defense failed to prove that there was illegitimate father, a certain Francisco Jison. Monina, the
diligent, sincere efforts to produce the declarant and for this daughter claims to be the illegitimate daughter of
the SC said this cannot be considered under the declaration Francisco but Francisco denied it up to his dying day. Thus,
against interest under sec. 38. Monina filed an action to compel Francisco to recognize
her. During the trial, one of the pieces of evidence
So if you are the proponent it is important to establish the fact presented by Monina were the letters sent to Monina by
of death or unavailability to testify and the efforts to produce the siblings (brothers/sisters) of Francisco. In these letters,
the declarant. they acknowledge that Monina is really the illegitimate
daughter of their brother Francisco. In other words, these
3. Act or Declaration About Pedigree letter came from Moninas aunties/uncles. The authors of
the letters however were not presented in court, but
Section 39. Act or declaration about pedigree. The act or Monina, being the recipient of the letters testified and
declaration of a person deceased, or unable to testify, in identified these letters as coming from the siblings of
respect to the pedigree of another person related to him by Francisco.
birth or marriage, may be received in evidence where it - The admission of these letters were objected to against
occurred before the controversy, and the relationship between hearsay because the authors/writers of the letter were not
the two persons is shown by evidence other than such act or presented in court. Monina however argued that these
declaration. The word "pedigree" includes relationship, family letters could be presented in court as under Sec. 39 of Rule
genealogy, birth, marriage, death, the dates when and the
130 on Acts or Declarations regarding Pedigree because
places where these fast occurred, and the names of the
these are letters containing declarations made by the
relatives. It embraces also facts of family history intimately
connected with pedigree. (33a) family members/relatives of Francisco, the aunties/uncles
of Moniina
- Held: The Supreme Court ruled that under Sec. 39, one of
A very interesting rule. the requisities therein is that the declarant must be dead
Whats pedigree? Dog food? or unable to testify. In this case, Monina failed to prove
that the authors of the letters were already dead or
PEDIGREE generally refers to family relationships, family/personal unable to testify. Therefore, the Supreme Court said that it
circumstances. It specifically relates to family relationships, cannot be admitted under Sec. 39.
genealogy, family tree, relatives, clans, lahing pikutin. The facts of 3. The declaration must involve matters concerning the
birth, marriage, death, the dates, places, family history, anything pedigree of another relative.
Pelaez Moot Court - Evidence Transcript Team 2015-2016

- meaning, the declaration must relate to the witness who has no personal knowledge that Teofista is really
pedigree of a relative the illegitimate daughter of Casimiro but his knowledge was
- The declarant and the person whose pedigree is from the information that he got from his father and his
in question must be relatives either by grandmother, Hipolito and Brigida. Cearly therefore, Teofista
consanguinity or by affinity. was seeking to establish her relationship with Casimiro using
4. The relationship between the declarant and the the declaration of Hipolito and Brigida, but because they were
person whose pedigree is in question must be already dead, Isaac was called to the stand who is the one now
established by evidence other than that act or relating to the court the declarations made by Hipolito and
declaration Brigida during their lifetime.
- This contemplates of the requirement of: This is the typical scenario contemplated now under the 4
independent evidence of pedigree requisite. This requires now the independent evidence of
- The most controversial among the requisites pedigreethe relationship between Teofista and Casimiro
- This applies only in a situation where the cannot be proved alone by the declarations made by Hipolito
claimant seeks recovery against a relative and Brigida. It requires evidence other than the declarations of
through the declaration of another relative the 2.
common to both claimant and the defendant Thus, as independent evidence of the relationship between the
which means that this requirement of declarant and Casimiro, Teofista presented in court an extra-
independent evidence of pedigree presupposes judicial partition involving the estate of Brigidas husband,
three relatives: Florencio who is the father of Hipolito and Casimiro where it
The first relative is the claimant (the states that Brigida, Hipolito (Isaacs father) and Casimiro are the
one who asserts a claim; the plaintiff. suriving heirs of the deceased, Florencio. This piece of evidence
The second relative is the defendant now establishes the fact that indeed, Casimiro, the defendant
(the one against whom the claim is (the person whose pedigree is in question) and the declarants,
directed) because this is a case filed by Brigida and Hipolito are relatives by consanguinity (this is an
one relative against the other relative independent evidence that establishes the pedigree of Casimiro
but there is an issue as to the on top of the decalaration made by Brigida and Hipolito to the
relationship between the two as to effect that Teofista is the illegitimate daughter of Casimiro.)
whether they are really relatives. In
order to prove the existence of the What happens if the declaration involved and sought to be
relationship that they are indeed admitted in court is a declaration made by the person
relatives, a third relative comes into against whom the claim is directed? (meaning its a
the picture in the form of a declaration made by the defendant himself, not the
declaration. Thus, we have a third declaration of another relative)
relative which is the declarant (he who - In other words, what is the rule regarding the
made a declaration prior to the situation wherein there are only two relatives
controversy that involves the pedigree involved? (the claimant and the defendant who
of the person against whom the claim is at the same time the declarantno 3
is directed). relative common to the defendant and the
- Example: The third relative would say that the claimant).
defendant is really the illegitimate father of the - Under the case of Tison vs Court of Appeals, the
claimant. Making use of the case Jison vs Court independent evidence of pedigree is no longer
of Appeals: required. That pedigree can be established by
- Monina is the claimant, Francisco is the defendant, the the act or declaration alone.
siblings (the brothers/sisters) are the declarants (thus, - This involves an action for recovery of property. The piece
there are 3 relatives involved, the declarant, the of land was owned by Teodora, married to Martin
defendant and the claimant). If this is the scenario, the last Guerrero. When Teodora died, she was survived by her
requisite, the independent evidence of pedigree is husband and her nephew and niece. But her husband,
required. Without this requisite, the testimony made by executed the settlement of the estate of Teodora and
the witness as to the declarations made by the dead or adjudicated the entire estate unto himself as the sole
unable to testify declarant may not be admitted under this owner, the nephew and the niece were excluded.
exception. Eventually, the husband sold the property subject of the
case to a 3 party, a certain Domingo. Martin Guerrero,
- This is illustrated in the case of Mendoza vs Court of the husband, died thereafter. The nephew and the niece
Appeals then filed an action to recover their share in the property
This involves an action for compulsory recognition of filiation which the husband sold to Domingo alleging that they are
filed by Teofista who claims to be the illegitimate daughter of also heirs of Teodora and therefore, they inherited part of
Casimiro Mendoza. To prove the fact that indeed she is the the piece of land owned by Teodora which was
illegitimate daughter of Casimiro, Teofista presented witneses, adjudicated solely to the husband which he eventually sold
among whom was Isaac who happens to be the nephew of to Domingo.
Casimiro. Thus, Teofista is the claimant, Casimiro is the - During the trial, Domingo filed a demurrer to evidence on
defendant, Isaac was called to the stand. Isaac said that the ground that the niee and the nephew failed to proved
sometime long ago, before the controvery arose, he was told their relationship as nephew and niece of Teodora. One of
by his father Hipolito and his grandmother Brigida that Teofista the pieces of evidence produced by the niece and the
is the illegitimate daughter of Casimiro. So, we have here a nephew to prove that they were indeed the niece and the
Pelaez Moot Court - Evidence Transcript Team 2015-2016

nephew of Teodora, and that they were therefore heirs person who is his/her own relative either by
entitled to the estate of Teodora, was the testimony of the consanguinity or affinity, blood or marriage
niece to the effect that during the lifetime of Teodora, - Example: Ms. M. Yap and Ms. J. Yap came from
prior to the controvery in question, Teodora declared that the same clan. Ms. M. Yap is a witness in a case
she and her brother are Teodoras niece and nephew. So filed by the other Ms. J. Yap which is an action to
the subject of relationship here is Teodoras relationship compel recognition of illegitimate filiation. Ms.
between the claimants. The declaration which the M. Yap, the witness who claims to be the cousin
claimant used to establish their claim against the estate of of the other Ms. Yap testified in court to the
the defendant is the declaration of the defendant effect that the complainant Ms. J. Yap is the
herself,Teodora. Thus, an issue was raised as to whether it illegitimate daughter of Mr. Ang, a Chinese
was necessary fot the plaintiffs to introduce independent businessman. Ms. M. Yap may not have personal
evidence of pedigree. knowledge that J. Yap is the illegitimate
- Held: The Supreme Court said that, in this situation, the daughter of Mr. Ang, but being a family member,
requirement of the independent evidence of pedigree is no she is presumed to know that fact or that she
longer necessary because this requisite is only required if acquired her knowledge by family reputation
the claimant seeks recovery against a relative through the thus, her testimony on the matter is admissible
declaration of another relative. However, in this case, the under Section 40.
claimant was seeking recovery against the estate of the - What is important here is that the witness must
relative Teodora using Teodoras own declaration. Thus, be a relative of the person whose pedigree is
there were only two relatives, the nephew and niece and the subject of the testimony.
Teodora. And in this is the case, independent evidence of - Further, making use of the example above, it
pedigree is no longer required obviously because the could also happen that Ms. M. Yap would testify
declaration was made by the party himself, what better about herself, her own pedigree in relation to
proof of pedigree can there be other than the declaration somebody (or her personal circumstances like
of the person concerned? Here, it was Teodora herself her marriage, her birth, her family history)
who declared that the plaintiffs are indeed her niece and these may not be personal knowledge but, they
nephew. This declaration now, as testified by the niece is are admissible hearsay.
enough to establish pedigree, no need for independent - This is the ruling in the case of People vs
evidence. Alegado.
- This involves the prosecution of two counts of statutory
Section 40. Family reputation or tradition regarding pedigree. rape. The child there was alleged to be below 12 years old.
The reputation or tradition existing in a family previous to the During the trial, the grandfather of the victim testified that
controversy, in respect to the pedigree of any one of its members, the victim is his granddaughter, the victims mother being
may be received in evidence if the witness testifying thereon be his daughter and while the child was still young, the
also a member of the family, either by consanguinity or affinity. mother left and entrusted the daughter, the victim in this
Entries in family bibles or other family books or charts, engravings case to the lolo/grandfather. The lolo/grandfather thus
on rings, family portraits and the like, may be received as evidence testified that when the mother entrusted to him the
of pedigree. custody of the child/victim, she told the lolo to make sure
to send the child to school as she was already seven (7)
years old. The accused in this case argued that he canot be
*TN: Do not confuse Sec. 39 with Sec. 40 because although Sec. 40
convicted of statury rape as there was no clear and
also speaks of pedigree, but they contemplate different rules,
convincing evidence that the child was below twelve years
requisites and situations.
old as there was no birth certificate presented. The
testimony of the lolo was to the effect only that the
o Section 40 talks of family reputation or tradition regarding mother told him to make sure to send the child to school
pedigree. The justification relied in this section is as she was already seven (7) years old.
reliability/trustworthiness and not necessity becaue - The testimony of the lolo here was objected to under
under this Section, death or the unavailability of the hearsay
declarant is not a requirement which is only applicable on - Held: Based on the testimony, the Supreme Court
Sec. 39. however was convinced that indeed the child was below
o The justification is reliability/trustworthiness because the twelve years old when the rape was committed. The
witness here testifies on the pedigree of a relative, being testimony of the lolo as to the age of the child was
the pedigree of the person whose pedigree is in question admissible here under Sec. 40, family tradition o
as it is presumed that he should know repuatation existing prior to the controvery, even though
o There are two parts that are contemplated under this he had no personal knowledge therein. The family
section: tradition in this case, as per the Supreme Court, refers to
the family tradition in sending their children to school
1. Those referring to testimonial evidence upon reaching seven (7) years old. Thus, it follows that the
child was already seven (7) years old when the child was
- This speaks of a situation where a family entrusted to the grandfather and then computing now the
member testifies of the pedigree of another period, using that as a reckoning period, the Supreme
person belonging to the same family; meaning Court arrived at the computation that the child was stil
the witness testifies of the pedigree of another below twelve years old at the time of the rape.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

- Moreover, the Supreme Court also said that another Rosa died, she was survived by her 2 children who are now
evidence in so far as the age of the child was the testimony the 2 plaintiffs in this case. The plaintiffs claim that they
of the child herself. The child said that she was already are the surviving heirs of Rosa and they complained as
born on this date. Obviously, the child had no personal they said that their mother Rosa was left out from the
knowledge on the date of her birth because she was only estate of Isabel. When Isabel died, her estate was
informed about it by her mother and the other famly supposed to be divided by her children (2 from her 1
members. But, the Supreme Court said that, ones birth, marriage and 3 from the 2 marriage) but the plaintiffs
the date, the place, as well as ones marriage or death are claimed that Rosa, a product of the 1 marriage was
matters of family reputation exisiting in the family which deprived of her share and as heirs of Rosa, they wanted
can be testified to by any member of the family because of her share.
the premise that being a member of the same family, they - As a defense, the other children: Ramon, Rafael, Cleotilde
should know. Thus, even if the child had no personal and Joaquin, Jr. denied that Rosa was the child of Isabel.
knowledge of the date of her birth, her testimony to the One of the pieces of evidence that they adduced in court
effect that she was born on such a date was admissible to prove that Rosa was not Isabels child was a day bookv
even though it was hearsay. of Isabel, or otherwise referred to as a diary as kept and
- Thus, the testimony of the lolo was a matter of family prepared by Ramon, Jr. the supposed brother of Rosa in
tradition which is the sending of the young children to the 1 marriage where it was stated that on such a date, a
school upon reaching the age of 7. In sofar as the three year old girl named Rosa, of unknown parents was
testimony of the child, family reputation. delivered to her mother, Isabel. So, the day book of
Ramon, Jr. supposedly contained an entry tending to prove
2. Those referring to family that Rosa was merely delivered to Isabel and therefore,
posessions/objects/documents she wasnt Isabels child. But, Ramon, Jr. was already dead
and he wasnt already around to testify the contents of
this day the defendants presented Joaquin, Jr.
- This now speaks of entries in family bibles, or
who took the stand and testified about the day book and
other family books or charts, engravings on
its entries to the effect that Rosa isnt the child of Isabel.
rings, family portaits or pictures, family diaries or
- The presentation of the day book and the testimony of
anything that has got to do with family
Joaquin was objected to by the plaintiffs on the ground
relatonships and the like are also admissible as
that Ramon, Jr. was already dead and thus, it is hearsay as
evidence of pedigree
the day book was kept and prepared by him and Joaquin
- Jison vs Court of Appeals
was only testifying on the day book of Ramon so, it is only
- Here, Monina tried to justify the admission of the letters
sent to her by the sisters and brothers or Francisco under
nd - Held: The supreme court said that even if it is hearsay, it is
the 2 part of Sec. 40. She argued that these letters fall nd
nd admissible under Sec. 40, 2 part. The day book partakes
under the 2 part of Sec. 40 (entries in family bibles,
of the nature of a family book or chart which falls under
family books or charts, etc.)
nd the same category as family bible, family portrait or the so
- Held: The Supreme Court disagreed and ruled that the 2
called family possessions.
part of Sec. 40 are otherwise referred to as family
possessions. The letters which Monina received from the
sisters and brothers of Francisco could not be considered COMMMON REPUTATION
as family possession. So, only if it is characterized by the
same classification as family bibles, family charts, Sec. 41 . Common reputation. Common reputation existing
engravings and rings and family portraits. Thus a letter previous to the controversy, respecting facts of public or general
sent by one relative to another is not what is interest more than thirty years old, or respecting marriage or
contemplated in this Section under the Jison Doctrine. moral character, may be given in evidence. Monuments and
- The letters cannot also be admitted under the 1 part of inscriptions in public places may be received as evidence of
Section 40 because the said part only contemplates of a common reputation. (35)
testimony of a family member. In this case, the authors of
the letters were not presented. Had they been presented, REPUTATION existing prior to the controversy involving matters of
the letters could be admissible under the 1 part of Sec 40. public or general interest of more than 30 years old or respecting
- What then is an example of a family possession? marriage or moral reputation may be received as evidence of
This was illustrated in the case of Rafael Ferrer common reputation.
et. al vs Joaquin de Inchausti Jr. et. Al
- There was this woman, Isabel who had the fortune of When someone testifies that Mr. Ochavillo is a monstrous pedophile
getting married twice. She married Ramon Martinez first and that witness did not have personal knowledge of the fact that
and out of their union, the begot 2 children, Ramon, Jr. he is a monstrous pedophile but that testimony, that knowledge is
and Rosa. When Ramon Martinez dies, Isabel wasted no based on the reputation of Mr. Ochavillo existing in the community.
time in contracting another marriage. This time, her Its hearsay BUT under section 41, its ADMISSIBLE under moral
equally fortunate husband was Joaquin de Inchausti, and character.
out of their union, they begot 3 children: Rafael, Cleotilde There are two(2) matters involved in Section 41:
and Joaquin, Jr. So all in all, Isabel had 5 children, 2 from
the 1 marriage and 3 from the second marriage. Fast 1. Matters of general or public interest
forward, Isabel died and Rosa also died (one of the 2. Matters respecting marriage or non-marriage or moral
supposed children of Isabel from the 1 marriage). When character

Pelaez Moot Court - Evidence Transcript Team 2015-2016

IN MATTERS OF GENERAL OR PUBLIC INTEREST, the requirement Sec. 42 . Part of res gestae. Statements made by a person while
there is that it must be existing for more than 30 years old. But for a startling occurrence is taking place or immediately prior or
matters of marriage, non-marriage or moral character, NO such subsequent thereto with respect to the circumstances thereof,
requirement. But both contemplate a hearsay testimony. Meaning, may be given in evidence as part of res gestae. So, also, statements
knowledge acquired by the witness NOT based on personal
accompanying an equivocal act material to the issue, and giving it a
knowledge but based on common reputation.
legal significance, may be received as part of the res gestae. (36a)
So if theres a public monument for example. You go to Mactan.
Theres a monument there of Lapu-lapu. It says there Lapu-lapu or Two forms of Res Gestae:
Magellan died here. Thats hearsay! But by common reputation, the
1. Spontaneous Statement
witness may testify that Magellan died in Mactan. Theres a
2. Verbal Acts
particular site where the shrine stands. Thats common reputation.
Monuments and other inscriptions in public places. These are
(1) Spontaneous Statement
information of facts that a witness may testify and that testimony is
admissible even if not based on his personal knowledge. The first parts says that statement made by a person while a
startling occurrence is taking place or immediately prior or
TN: Under 41, that involves matter relating to marriage. Marriage is
subsequent thereto may be received in evidence as part of res
supposed to be a matter of pedigree.
gestae. Thats a spontaneous statement. What makes the statement
39 and 40 also involves marriage. 41 also involves marriage. So the admissible is the fact that the statement was spontaneously made.
fact of marriage or the fact of non-marriage may be proved either by Whats the relevance of the statement being spontaneously made?
39(evidence of pedigree), 40(also evidence of pedigree) and under The relevance there is when a statement was spontaneously made
41(evidence of common reputation). In 39 and 40, what is required then therefore it was made without opportunity of the declarant to
there is the declaration must come from a member of the same concoct, to contrive, to think falsely. Its instinctive remarks,
family as that person whose pedigree is in question. statements. Because of the absence of the opportunity to concoct,
that statement enjoys the presumption of accuracy, truthfulness.
So if in a case, for example of Mr. Ochavillos pedigree, whether he is And therefore, the basis for this exemption even if hearsay is
married or not married becomes an issue in a case, that matter may admissible is reliability, trustworthiness! Its trustworthy because of
be proved by a declaration, an act or omission of a family member the nature of the statement being given without opportunity to
who is already dead or unable to testify under Article 39 or it may be think.
testified to by a family member who is still alive, takes the stand and
testify, a member of the same family as that of Mr. Ochavillo under DBP pool vs RMN
Article 40 or under Article 41 by a witness who testifies on Mr.
This RMN is engaged in radio network and in pursuit of its business,
Ochavillos marriage or non-marriage on the basis of his reputation
it has some radio communication facilities all over. One of its
existing in the family.
facilities were burned, destroyed, totally damaged and these
This was the ruling in the case of facilities were during the occurrence of the fire, covered by Fire
Insurance Policy. In fire insurance policy, there are standard
In Re Mallari excepted risks. The most common excepted risk is fire by rebellion.
If the property covered by insurance is destroyed by fire caused by
He is a lawyer. He passed the bar. After sometime of practicing law, rebellion or in any similar incident, the insurance policy would not
his license to practice law was cancelled by the SC because the SC pay. So when the facilities of RMN burned down, the network
found him to be NOT a Filipino citizen. His parents were found to be demanded for the payment of the proceeds of the fire insurance
Chinese nationals. Under the Constitution, only Filipino citizens can policy but DBP Pool refused to pay invoking the excepted risk clause
practice law. Years after, Atty. Mallari moved to reopen the case. He contending that based on the investigation, the fire was caused by
introduced newly discovered evidence. One of the pieces of members of the CPP NPA in the area(rebels). So the network was
evidence introduced by Atty. Mallari was consisted of testimony of constrained to go to court to demand payment. By way of defense,
residents of the same community where his parents resided and the insurance company presented the fire investigation report and
these witnesses uniformly testify based on common reputation that this fire investigation report was based on the testimonies of the so
the mother of Atty. Mallaris father meaning, the lola of Atty. Mallari called eyewitnesses to the incident who were interviewed by the
was unmarried. Meaning, she was not married to anyone and that investigator. Of course, those witnesses who claimed to have
she was a tagalog-speaking woman. Proceeding from the finding witnessed the incident were not presented in court to testify but
that she was a tagalog-speaking woman, the SC concluded that she only the investigation report testified to by the investigator. The
must be a Filipino. The SC deduced and made a conclusion that she investigator himself had no personal knowledge of the incident. So
must be a Filipino. Now under the Constitution, a child born to a naturally the admission of this piece of document was objected to
Filipino mother or father is a natural born Filipino. So the license of under hearsay. It is obviously hearsay. But the insurance company
Atty. Mallari was reinstated because of Common Reputation. Those counterargued that this is admissible under res gestae. The first
witnesses of course had no personal knowledge of the citizenship form! BUT SC disagreed with the insurance company.
but because of the existing reputation in the community to the
effect that his lola was unmarried and was a tagalog-speaking SC: Res gestae of the first form or otherwise known as spontaneous
woman, the SC took it to mean that indeed the mother of Florencio statement requires that the statement must be made without
Mallaris father was a Filipino and therefore Atty. Mallaris father opportunity on the part of the declarant to concoct the statement.
was a Filipino and Atty. Mallari also is a Filipino. But in this case, SC said there was no evidence that the testimonies
of these witnesses who were interviewed by the investigator was
RES GESTAE made without opportunity to concoct or made without being
influenced by other factors like exchange of information with
Pelaez Moot Court - Evidence Transcript Team 2015-2016

another or speculation. So because of the failure of the proponent This also refer to statements accompanying an equivocal act which is
to prove absence of the opportunity to concoct, SC said, this cannot relevant to the issue and giving it legal significance. So a statement
be considered part of res gestae and therefore it cannot be admitted accompanying an act.
under the hearsay evidence rule.
So theres an act and the act is accompanied by the statement. The
Talidano vs Falcon Maritime and Allied Services act by itself is equivocal. Meaning, it is susceptible to two or more
interpretations. But because of the accompanying statement which
This is a case involving a seaman onboard a foreign vessel. While the is relevant to the issue, the otherwise equivocal act is given a
vessel was enroute to its destination, it intruded into another specific meaning. Typical example is the act of one handing
vessels route. Investigation reveal that the deviation from its route something to another.
was caused by the failure of Talidano to perform his duty. Talidano
was designated as a watchman. He was supposed to guide the Ex: Mr. Miralles delivers something to Mr. Padayao. Thats equivocal
captain of the vessel in following the designated route but he was act. That act could mean so many things. Its possible that Mr.
absent during his duty. So he was terminated and when he returned Miralles by handing over to Mr. Padayao a sum of money, one
to the Philippines, he filed a labor complaint for illegal dismissal. By interpretation there is Mr. Miralles is lending money to Mr. Padayao.
way of defense, the respondent employer, the shipping company, So a contract of loan. Or it could also mean that Mr. Miralles
allege that he was legally dismissed because of gross neglect of duty eventually paid his loan to Mr. Padayao. So the act of handing
which caused the vessel to evade from the designated route. This money made by Mr. Miralles to Mr. Padayao is an equivocal act. But
defense was supported by the ship captains fax messages. These fax because of the accompanying statement, the statement that
messages contain the statements and declarations of the captain accompanies the act of handing over the money which statement is
relating to the incident (the failure of Talidano to report to his relevant to the issue, its the statement which gives legal significance
designated post). The ship captain who made these reports was not to the act. So if Mr. Miralles while handing over the money to Mr.
presented because as you know, in labor case the parties are only Padayao says, Thank you for your kindness Mr. Padayao. So
required to submit position papers and if you have affidavits, the obviously the statement of gratitude indicates that Mr. Miralles was
affidavits are attached. NO trial. And therefore, the ship captain was paying his loan to Mr. Padayao. Or if Mr. Miralles while handing the
not presented in court for cross examination. Talidano objected to money to Mr. Padayao says, Pay me after a month you son of a
the admission of the fax messages prepared by the ship captain on ****. So obviously its a contract of loan. So a statement
the ground that its hearsay. But the respondent argued that its accompanying an equivocal act.
admissible under res gestae. It was claimed that the statements
contained in the fax messages were made while a startling This was also involved in the case of Talidano vs Falcon Maritime. It
occurrence was taking place or immediately prior or immediately was argued by the respondent shipping lines that the fax messages
subsequent to the startling occurrence. prepared by the ship captain also partake of the nature of a verbal
act. It was a statement accompanying an equivocal act.
SC: Cannot agree with contention of respondent shipowner that its
part of res gestae of the first form. Why? SC said lets assume that the startling occurrence, the equivocal act
there that is the act of Mr. Talidano in not showing up at his
There was no showing that the statements contained in designated post. Its an equivocal act. They say its an equivocal act.
the fax messages were made while the startling But here, there is no showing that the statements of the ship captain
occurrence was taking place assuming the startling as contained in the fax messages accompanied that equivocal act.
occurrence was the negligence of Talidano in not reporting Because as pointed out earlier, the statements did not bear any
into his post. If it was the startling occurrence, there was date, time. It is impossible to determine the time when the
no showing that the statements were made by the ship statements were supposedly made and therefore, it can hardly be
captain while the startling occurrence was taking place or determined if that statements actually accompanied the alleged
immediately prior or subsequent thereto. There was no equivocal act. Again, the connection between the statement and the
such showing. Worst, the fax messages which contain the startling occurrence which in this second form of res gestae is the
declaration of the ship captain did not bare any date. So equivocal act. The keyword there is the statement there must
without the date, it cannot be determined as to when the accompany the equivocal act to give it legal significance.
statements were made and therefore, it cannot be
determined whether it was made while a startling ENTRIES IN THE COURSE OF BUSINESS
occurrence was taking place or immediately prior thereto.
Sec. 43 . Entries in the course of business. Entries made at, or
So requirement there is: near the time of transactions to which they refer, by a person
deceased, or unable to testify, who was in a position to know the
1. Spontaneous facts therein stated, may be received as prima facie evidence, if
2. no opportunity to concoct; and
such person made the entries in his professional capacity or in the
3. It must be made while the startling occurrence was
performance of duty and in the ordinary or regular course of
taking place or immediately prior or subsequent thereto.
business or duty. (37a)
You must establish the connection between startling occurrence and
the statements for the statements to be considered admissible as
part of res gestae. The res gestae there is the startling occurrence.

(2) Verbal Acts

Pelaez Moot Court - Evidence Transcript Team 2015-2016

The justification for this exception are: One more thing, SC said that for entries in the course of business to
apply, it is necessary that the entrant must have personal knowledge
1. Trustworthiness of the facts therein stated. But in this case, the bookkeeper who
Entries in the course of business are presumed to be testified who admitted in court that he was the entrant BUT he
trustworthy because they were done in the ordinary admitted that the entries that he made in the book of collectible
course of business. accounts were simply based on the report provided by the project
engineer. It was the project engineer who supplied him with the
2. Necessity details, the facts the entrant recorded in the book of collectible
Necessity because the entrant or the person who made accounts. So obviously the entrant(bookkeeper) had no personal
the entries is already dead or unable to testify. knowledge stated in the book of collectible accounts. So in these
two counts, SC said that its NOT admissible under Entries in the
course of business.
So an entry made at or near the time of the transaction to which
they refer made by a person deceased or unable to testify made in Northwest Airlines vs Chiong
his professional capacity or performance of a duty or in the ordinary
course of business or duty. This involves an overseas contract worker who was called to fly
abroad to perform a job abroad. And so on the designated date of
TN: That under Section 43, the entrant there must have personal his flight he went to the airport and approached the check-in
knowledge of the facts contained in the entry. The entrant made the counter only to be refused boarding. He missed his flight and he
entries and his knowledge on these entries is based on his personal missed his job opportunity. And so Mr. Chiong filed a breach of
knowledge but he could not testify in court because he is either contract against the airlines. By way of defense, the airlines argued
dead or for some reasons, unable to testify. And so someone takes that Mr. Chiong was a no-show during his flight. So there was factual
the place, takes the stand to testify the entries made by the entrant issue of whether or not Mr. Chiong really arrived at the airport and
who is dead or unable to testify. Of course, hearsay! But under this approached the check-in counter. Two conflicting factual versions.
provision, it is admissible hearsay. During the trial, the airlines in order to prove that Mr. Chiong did not
show up at a designated time and place, presented a passenger
TN: The entrant must have personal knowledge and the entrant
manifest and a passenger name record of the airlines and this was
must be dead or unable to testify.
testified to by the supervisor on duty. Of course the entrant, those
Canque vs CA officers and employees responsible in the recording of the entries in
the passenger manifest and passenger name record were not
This involves a contract. Canque is a contractor who was awarded presented in court. Someone else testified other than the entrant
various government projects(construction of roads on Toledo city, and therefore its hearsay. When objected on this ground, the airline
Naga to Toledo). In connection with the government project, company argued that it is an exception to hearsay under Entries in
Canque engaged the services of Socor Construction Corp. as its the Course of Business.
subcontractor. Under their subcontracting agreement, Socor would
undertake certain aspects of the project and Socor would just send SC ruled against the airline. SC said for this exception to apply, the
Canque a progress billing depending on the amount of materials proponent must show that the entrant is either dead or unable to
delivered and extent of the services rendered. During the existence testify which the airline failed to prove in this case. There was no
of their contract, Socor sent project billings to Canque representing showing that the employees and officers responsible to the
payments for the materials that Socor claimed to have delivered for recording of the entries in the passenger manifest and passenger
the purposes of the project and for the services rendered by the name record were dead or unable to testify.
subcontractor Socor. But Canque refused to pay the billings because
according to Canque, Socor failed to present the delivery receipts
showing the extent or the quantity of materials delivered by Socor Do not confuse this with Entries in Official Records. Theres also such
to Canque for purposes of the project. Of course, you do not pay the a thing as official record. Thats section 44.
billing without supporting documents. This prompted Socor to go to
court to compel Canque to pay the progress billings. Canque insisted Sec. 44 . Entries in official records. Entries in official records
that Socor present the delivery receipts but Socor could not present made in the performance of his duty by a public officer of the
the delivery receipts. Instead, during the trial, to prove that Philippines, or by a person in the performance of a duty specially
deliveries of materials were actually made, Socor presented their so enjoined by law, are prima facie evidence of the facts therein
called book of collectible accounts containing the alleged materials
stated. (38)
delivered by Socor to Canque for purposes of the project. The book
of collectible accounts was testified to by its bookkeeper who was at OFFICIAL RECORDS
the same time the entrant. He was the one who made the entries in
the corporations book of collectible accounts. This was objected to
but Socor argued that this is admissible under Entries in the Course Section 44. Entries in official records. Entries in official
of business. records made in the performance of his duty by a public officer
of the Philippines, or by a person in the performance of a duty
SC disagreed and said for the entries in the course of business to specially enjoined by law, are prima facie evidence of the facts
apply, it is necessary that first, the entrant must either be dead or therein stated. (38)
unable to testify. BUT in this case, the entrant was the bookkeeper
and he was the one who actually took the stand and testified. So he Do not confuse entries in the course of business with official
was not dead. Neither was he unable to testify as he in fact testified. records. These are two different rules although both involve records.
On that score alone, the book of collectible accounts cannot be
admitted on the basis of entries in the course of business.
Pelaez Moot Court - Evidence Transcript Team 2015-2016

ENTRIES IN THE COURSE OF ENTRIES IN OFFICIAL RECORDS admittedly the report was based on the information he gathered
BUSINESS from somebody else. The SC further state that neither was the
refers to private this specifically refers to knowledge acquired by the fire investigator through official
transactions. So mostly government records kept information because those witnesses who allegedly supplied the
records maintained and by government officers or investigator with those facts which formed part of the basis of the
kept by companies, offices or person entries were not specifically enjoined by law to make that report.
corporations like in the specifically enjoined by law They are ordinary witnesses and there is not law that requires them
examples given, records of to submit reports. to supply those information to the fire investigator. So not being
the contractor, Airline personally acquired, neither was it through official information. The
Company. SC ruled that it cannot be admitted under official entries in official
Entrant: Entrant: records.
must be dead or unable to no such requirement
testify; somebody else 2. must have (a) personal
testifies knowledge CASE: PEOPLE v SAN GABRIEL (same principle)
2. must have (a) personal
knowledge or (b) official This involves a murder, stabbing incident that occurred at the pier.
information Immediately after the incident, an eyewitness reported the incident
to the police station and the police on duty entered it in the police
blotter. In that police blotter, X was identified as the assailant. But
What is official information? when the case was eventually filed, the one charged was not X but Y.
And so during the trial, Y in his defense, presented a copy of the
The knowledge deemed to be acquired in official information if it is
police blotter, identified by the custodian of the police blotter. The
derived from somebody specifically enjoined by law to make a
accused tried to convince the court that the eyewitness who
report. In other words, there must be a specific law that requires
reported to the police after the incident identified somebody else,
somebody to make a report and the entrant acquired knowledge of
he should be acquitted. This was objected to by the prosecution
the facts from that someone who made the report which reporting
under hearsay. But the accused argued that it falls under entries in
is specifically enjoined by law. In the absence of a law that
official records. Take note that entries in the official records is a
specifically enjoins the submission of the report, that person is not
prima facie evidence of the truth of the matter therein stated. But
deemed to be someone enjoined by law and therefore cannot be
the SC saw it the other way. For entries in the official record, it is
considered as official information.
required that the facts therein stated must be acquired by the
entrant personally or through official information. Obviosly, the
police who entered the incident in the police blotter had no
CASE: CALTEX v AFRICA personal knowledge of the facts reported because admittedly it was
based an the eyewitness who witnessed the incident to the police
This involves an action for damages arising from a fire that occurred station.
in a gasoline station owned by Caltex. The plaintiffs here are the
owners of the neighbouring houses that gutted down by fire According to SC, this eyewitness is not specifically enjoined by law to
originating from the Caltex gasoline station. The defense of Caltex is report that incident to the police. So if you happen to witness a
that the cause of the fire was not of their own making but it was crime, its not actually your legal duty to report it. There is no law
somebody else, a stranger, not related to Caltex that originated, that that makes it your specific duty to report a crime that you
caused the fire. In support of its defense that it was somebody else witnessed to the police. Theres no such law.
who caused the fire, Caltex presented a fire investigation report
prepared by the governments fire investigator. In that fire
investigation report it was stated that the cause of the fire was a
stranger who lighted a cigarette and after lighting the cigarette, he
threw the matchstick into the underground tank of the gasoline This involved an action initiated by the BIR against Barcelon Roxas
station. Set the gasoline station afire, burning the neighbouring Securities for collection of deficiency income tax. By way of defense,
houses which led to the filing of an action for damages arising from Barcelon Roxas Securities argued that the BIRs action for deficiency
tort. Now the admission of the fire investigation report which was income tax has already prescribed. In an effort to prove that the
testified to by the investigating fire marshal or fire investigator was action has not yet prescribed, BIR claimed that the notice of the
objected to on the ground of hearsay because the report were assessment was served on Barcelon Roxas on certain date through
based on the interviews on the fire investigating officer gathered registered mail. To prove this allegation, BIR presented their record
from those who have claimed to have witnessed the fire. So custodian who testified to the BIRs record book which contains the
obviously, the facts therein stated were obviously from other list of the names of the taxpayers, the nature and the amount of
persons not the one on the witness stand. But Caltex argued that it their liabilities, the date, the notices of the assessments were made
falls under entries in the official record because its a report and so on and so forth. This was identified by the record custodian.
prepared by a government officer, a fire investigation officer Now objected to under hearsay evidence rule, BIR argued that it was
connected with the government. admissible hearsay under official record.
But the SC disagreed, and said, under entries in the official records The SC rejected the argument holding that for entries in the official
to be an exception to hearsay, one of the important requisites there record to be admissible, its important that the entrant of the entries
is that the entrant must have acquired sufficient knowledge of the must have either personal knowledge of the facts therein stated or
facts therein stated either personally or official information. acquired the facts through official information. But it was
Obviously, the fire investigator has no personal knowledge because established that the entrant, the record keeper, had no personal
Pelaez Moot Court - Evidence Transcript Team 2015-2016

knowledge of the facts therein stated particularly the fact that the express provision of the law these authorized officers are
notice of assessment was served and the date it was served and it required to make that report.
was established that he was not the one who caused the mailing of So that, if in a case, you want to prove the fact of marriage
the notice of assessment. SC said, it could have been different if the and the details of the marriage, your usual piece of
post office testified as to the fact of the mailing. So since the evidence there is an excerpt of the record available in the
entrance, the one responsible for the recording of this entry record local civil registrar. Number, record number, married this
book of the BIR, acquired the information neither from personal so and so. License and so on and so forth.
knowledge nor from official information the evidence was If you want to prove the marriage, you may subpoena to
inadmissible. be served on the local civil registrar to bring to the court
the excerpt of the record. Of course that local civil
registrar who is now testifying in court insofar as these
records are concerned, has no personal knowledge of the
What is the rule insofar as medical certificate is concerned?
facts therein stated because he was not the one who
Medical certificate prepared by a medical doctor. TN, in entries in solemnized the marriage. He was neither one of those
official records, the entrant there must either be public officer of the who stood as the principal sponsor, was a guest during the
republic of the Philippines or any person specifically enjoined by law marriage. Generally he has no personal knowledge of the
to make a report. So insofar as medical certificate is concerned, the marriage and the particulars of the marriage and obviously
only medical certificate that could be considered as official record is hearsay. But under entries in official records, the
a med cert issued by a government physician. Otherwise, it cannot testimony of the local civil registrar, insofar as the excerpt
be considered as entries in official records. of the marriage as found in the record is admissible under
entries in official record. No personal knowledge but
But in People v Turco, SC said that a medical certificate or report knowledge of the local civil registrar insofar as to the fact
prepared and issued by a government physician is admissible under of marriage was acquired through official information
entries in official record. Meaning, it can be admitted in court even if because the knowledge came from the solemnizing officer
the physician who made and prepared the report is not presented in who provided and supplied a copy of the marriage
the court. But somebody else testifies in court, that is admissible certificate and marriage contract. And under the family
under entries in official records but according to SC. Since the code, the solemnizing officer is specifically enjoined by law
physician himself who made the medical report is not presented in to submit or provide this report to the LCR. Thats a
court, then that medical report, even if admissible has less probative perfect example of a person specifically enjoined by law to
value because according to SC, the one who prepared the report is submit a report for any knowledge acquired by the entrant
supposed to be an expert witness and being an expert witness, it is from this person falls under entries in official record.
required that the witness, the one who prepared the report, must
be shown to have possessed the special knowledge, skill, training 2. A report coming from a ship captain under Article 612 of
which is the qualification of an expert witness. Without presenting the Code of Commerce, captains of vessels are required by
the medical or the physician himself who prepared the report, this law to keep and maintain a logbook where to record all
qualification may not be established. So, it admissible but less incidents that tooks place on board the vessel and his or
probative value. her actions thereon. Specific requirement of the law,
provision thereon is 612 of the COC.
But this contradicts the express provision of the rule, because the (wala ko kita sa provision jud)
rule says that the entries are prima facie evidence of the truth of the
facts stated therein. If its prima facie evidence of the truth, then, it CASE: HABERTON SHIPPING v NLRC
proves the truth therein stated. Its incumbent upon the adverse In Haberton Shipping v NLRC, there was a seaman who
party to prove otherwise, but being a prima facie evidence, it figured in a fistfight with the co-crew member and after
presumed trued, so whatever is stated in the report, the extent of the investigation, he was found to be the one responsible
the injury, so on and so forth.These are presumed true. But people v who initiated the fight and so he was terminated. When he
Turco the SC went against the express provision of the rule. But this returned to the Philippines, he filed a for illegal dismissal.
opinion, of the SC, is also not without bases because its really a The employer argued that the dismissal was legal referring
work of an expert. Without presenting the physician who prepared to the incident where the complainant figured in a violent
the report, there can be no cross examination. Only him could be fight with a co-crew member. In support of his defense
crossed examined on the intricacies of the report. So take note of that the termination was legal, the shipping company, the
People v Turco. Maybe this apply only to medical certificate because respondent, presented the ship captains logbook which
of the expert nature of the testimony of the suppose witness. contains the report of the incident that involved the
complainant. Of course, as Ive said, in a labor case, the
parties are only required to submit possession papers and
Examples of Knowledge of facts acquired by the entrant through required to attach their documentary evidence. One of the
official information. documentary evidence presented by the respondent was
the captains logbook which contains the specifics of the
1. Under the family code, the solemnizing officers, the priest, report as prepared by the ship captain. This was objected
imam, judges, ship captain, airplain pilot, military to under hearsay because the ship captain who made the
commander. They are authorized to solemnize marriages report was not presented as a witness for cross
and under the express provision of the family code, they examination. It was argued by the respondent that it falls
are required to submit copies of the marriages contracts under the exception, entries in the official records,
to the civil registrar where the marriage took place. The admissible hearsay.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

The SC agreed with the employer and said that under their occupation. For those people engaged in the business of
Section 12 of the Code of Commerce, every ship captain is trading currencies for example. They have these standard
required to keep and maintain a logbook where to record handbooks where necessary information can be found like in this
incidents that occurred on board vessel and any actions particular business, currency, they have this list of various exchange
taken thereon. This qualifies the requirement. The logbook rates. How much is the exchange rate of one peso to the dollar, this
is specifically required by law on the part of the ship fluctuates. So if you have a case, an issue there relevant to the case
captain. So it is admissible if any knowledge coming from how much was the exchange rate from peso to the dollar in 1980.
that logbook is deemed to have been acquired through That can be established by using commercial list. The standard
official information. The same principle applies in the more handbook of those engaged in that particular business. Now of
recent case of course, the witness who would testify there has no personal
knowledge but because it is found, the statement, the information is
CASE: SABILI v COMELEC found in the standard handbook, they are presumed to be accurate
This was action for cancellation of a Certificate of because they are relied upon and used by people engaged in that
Candidacy like what they did against Grace Poe, but this particular business. The same hold true to people engaged in copra
time, in Sabili the respondent there was a candidate for business or any kind of business for that matter.
municipal mayor. It was alleged that the certificate of The only requirement there, it must be published for the use of
candidacy, the respondent that she misrepresented that those people engage in that particular occupation and must be
she was already a resident of that municipality for more generally used by those people.
than one year. One year is required for candidates for the
position of municipal mayor. By way of defense and in REQUIREMENT:
order to prove that she was already or has been a resident 1. Must be published for the use of those people engaged in a
of the municipality for more than one year, the particular occupation
respondent presented the affidavit of the barangay 2. Must be generally used by them
captain who testified that based on the record of the
barangay secretary, the respondent has been a resident of
the brgy for more than one year. Of course the secretary
of the brgay was not presented for cross examination, CASE: PNOC SHIPPING LINES v CA
objected to for being hearsay. It was argued that it falls This involves a collision of two vessels as a result thereof, on vessel
under the exception entries in the official record. capsized and sank together with all the cargoes and equipment
And the SC agreed and said under the Local Government installed in the vessel. So the owner of the vessel that sank sued the
Code, the barangay secretary is required specifically by law owner of the erring vessel for damages representing the
to keep an updated list of all residents in their barangay. replacement value of the vessel and all its damages equipment.
And so when the barangay captain testified that the During the trial and in order to prove the value of the replacement,
respondent has been a resident of his barangay for more the extent of the damage sought to recover from the defendant. The
than one year based on the record of the barangay plaintiff presented price quotations coming from various suppliers of
secretary. Obviously, the barangay captain acquired his equipment. Of course, these price quotations were testified to by
knowledge from or through official information. the general manager of the plaintiff. So he was not the one who
prepared those price quotations. Obviously, hearsay. But the
COMMERCIAL LIST plaintiff argued that while hearsay, it is admissible under the
exception commercial list and the like.
Section 45. Commercial lists and the like. Evidence of But the SC disagreed. The SC said, the essence of a commercial list is
statements of matters of interest to persons engaged in an that it possesses the character of a standard handbook published for
occupation contained in a list, register, periodical, or other the use of people engaged in that particular occupation and must be
published compilation is admissible as tending to prove the shown to have been generally used and relied upon by these people.
truth of any relevant matter so stated if that compilation is In the case of the price quotations, obviously, this was not published
published for use by persons engaged in that occupation and for the use of people engaged in a particular occupation. These were
is generally used and relied upon by them therein. (39)
private communication between the supplier and the plaintiff. The
plaintiff simply requested the supplier to provide them with the
Evidence of statements of matters of interest of persons engaged in price quotations. Secondly, the SC said, it cannot be considered as
occupation contain in a list, periodical, register, or other published standard handbook. It was not shown that these price quotations
compilation may be received in evidence as tending to prove the were actually used and generally relied upon by people engaged in
matters therein stated. If such compilation is (1)published for the that particular occupation. So price quotations not a commercial list
use of those engaged in particular occupation and (2) generally and therefore inadmissible.
used and relied upon therein.

Commercial list and the like simply refers to those so called standard
handbooks published for use and generally relied upon by people LEARNED TREATISES
engaged in a particular occupation.
Section 46. Learned treatises. A published treatise,
EXAMPLE periodical or pamphlet on a subject of history, law, science, or
So typical example, those people engaged in trading of oil, or trading art is admissible as tending to prove the truth of a matter stated
of currency, fluctuating interest rates. They have this standard therein if the court takes judicial notice, or a witness expert in
handbooks that contain everyday professional need for purposes of the subject testifies, that the writer of the statement in the

Pelaez Moot Court - Evidence Transcript Team 2015-2016

treatise, periodical or pamphlet is recognized in his profession BUT this is available only when:
or calling as expert in the subject. (40a)
a. The witness is dead or unable to testify
b. The case must involve the same parties
We have treaties and the like. Learned treaties. Published treaties, st
c. The 1 and subsequent case must involve the same
periodicals and pamphlets on the subject on history, law, science
subject matter
and art may be received in evidence tending to prove the truth of
any matter therein stated.

1. If the court takes judicial notice of the published treaty. General Under this, the evidence consisting the testimony of the witness in
public interest. Remember the rule on judicial notice, st
the 1 case may be received as evidence in the subsequent case
discretionary judicial notice. Matters of general interest. It falls against the party who had the opportunity to cross examine the
there. So if the court takes judicial notice of the treaty then st
witness in the 1 case. NOTE.
whatever is stated in that published treaty, periodical or
pamphlet, any of these subjects may be received in evidence.
Obviously, the witness who testifies on the treaty has no
personal knowledge because his knowledge is based only on Case: Manliclic vs Calaunan
the work of those who authored the treaties, periodicals and
- Vehicular accident between a bus and an owner-driven
the pamphlets. But under this exception, it is admissible
hearsay. Typical example of a treaty or a pamphlet or periodical st
- The 1 case was criminal case for reckless imprudence
on the subject of science like for example
resulting in physical injuries and damage to property was
filed by the offended party against the driver of the erring
Mr. M is sex guru. He has this treaty on Kamasutra. If theres an
- During trial, witnesses were presented.
issue relating to sex that happens to be relevant in the case and
- But during the pendency of the criminal case, a civil case
that issue may be resolved by applying the priceless lessons
was subsequently field by the same complainant against
thought by Mr. M in that book or pamphlet. It can be presented
the driver and his employer, the bus company. It was a suit
in evidence either on the two situations.
for damages filed against the driver and his employer
a. If the court takes judicial notice of Mr. Ms work. So if
- Problem: the witnesses who testify in the criminal case
the judge happens to be an avid fun of Mr. M, then
were no longer available to testify during the succeeding
obviously, the judge will take judicial notice of it. It is
civil case.
admissible even if the judge has no personal
- So what the proponent did was just to present the
knowledge of the matters therein stated because it
transcript of stenographic notes.
falls under published treaties, periodical or pamphlet
- This was however objected to under the hearsay rule. But
on the subject of history, law, science and art. If the
the proponent argues that the transcript of the
court doesnt take judicial notice, there is other way
stenographic notes covering the testimony of the
to present it in court and the testimony as well as the
witnesses may be admissible under this exception
evidence is admissible.
- BUT the SC disagreed. For this exception to apply, it is
b. By presenting an expert witness. A witness expert on st nd
important that the 1 and 2 case must involve the same
the field who will testify that the author of the
subject matter and the same parties.
pamphlet or treaty or periodical Mr. M is recognized
- These requirements are absent in this case. While the
in his field or profession in the field. So we have two
driver was a party in both cases, the employer was not a
experts here, Mr. O for example is also a master of
party to the first case. The bus company was not given to
sexuality. He is the author of the book titled All you st
cross examine the testimony of the witness in the 1 case.
want to know about sex but you are afraid to ask
(hahaha). So Mr. O confirms and affirms that the Note: when the witness is not dead but unable to testify, SC said
author of the book Kamasutra, Mr. M is indeed that the unavailability of the witness to testify must be due to some
recognized and acknowledge in their field as an compelling grave cause that makes him unavailable to be present his
expert on the matter. Admissible! testimony. Grave case may include physical infirmity, mental
inability, and old age resulting to loss of memory.
Last exception under the Rules of Court:
Case: Tan vs CA
Testimony or deposition in prior proceedings
- Mere refusal of the witness to testify is not a justification
- There are instances when witnesses already testify in the for invocation of this exception
previous case but no longer available in the subsequent - The fact that he turn hostile is not a justification. Also his
case. mere refusal. These witnesses can be compelled to testify
- Instead of presenting again the witnesses in the through service of subpoena. It must be due to some grave
subsequent case, you may present the transcript of case that disabled him to testify again.
stenographic notes taken during the proceedings in the
previous case. THUS: Rule of Court provides for 11 exceptions to Hearsay
- IOW, in so far as the subsequent case, the witness is no Evidence Rule.
longer around to be cross examine in the 2 case. BUT
under this exception the transcript of stenographic notes BUT not the only exceptions. There are exceptions not mentioned in
may be admissible as evidence in the 2 case without the Rules.
requiring the witness to again testify.
Pelaez Moot Court - Evidence Transcript Team 2015-2016

Additional exceptions: admitted if the same can be

corroborated by other available
a. Section 26, Rule 130. Admission against interest. evidence. The it can be admissible.
- Different from declaration against interest under Section
38 which an exception to Hearsay Evidence Rule by - When a child is deemed unavailable?
express provision of law. o when the child is dead, when is unable to testify
o These are 2 different rules. Do not confuse one because of some physical infirmity, mental
from another. But note that both are exceptions illness, loss of memory or would be expose to
to Hearsay Evidence Rule. sever psychological injury if presented in court
- Here, Section 26 (admission against interest) is an o In any of these instances, the evidence will be
exception to Hearsay Rule as provided by jurisprudence. admissible if corroborated by any admissible
Case: Estrada vs Desierto
- NOTE. Came out in the previous bar exam
- SC officially declared that section 26 is one of the
exceptions to Hearsay Rule.
- Although not mentioned by Rules. Another exception:

c. As embodied in the ruling of the case of General Razon vs

Distinguish section 26 (admission against interest) from section 38
- Involving a petition for the issuance of writ of Amparo
(declaration against interest):
which involves petition for production of victims of
- In section 26, no requirement that the declarant must be enforced disappearance.
dead or unable to testify. - The respondents are the law enforcement agency of the
- But in section 38, the declarant must be dead government, usually the military.
- Section 26, the admission is admissible against the o So given the nature of the proceedings, the SC
declarant himself and no one else. took noted to the natural tendencies of the
- In section 38, it is admissible against the declarant, his witnesses to not testify against the military
rd - So the SC said that in this kind or proceeding, evidence
successor in interest, or even 3 parties
which is otherwise inadmissible may be admissible as long
Another exception: as the totality of the evidence will result to a reasonable
basis for the court to act on the writ of Amparo.
b. Section 28 on the rules of examination of child witness - In this case, the evidence which was proposed to be
- A declaration of the child describing an act of child abuse, admitted, was a triple hearsay. Source of the information
which is otherwise inadmissible under hearsay evidence submitted it to someone else. And this someone else
rule, may be admissible as evidence under certain rules. related to another. And to another.
o When the child says that Mr. O fondled my - The SC said that this info is triple hearsay but because of
breast, and someone hears it, Mr. B. Later on, the nature of the writ, may be admissible. So long
Mr. B may testified, even if obviously hearsay, considered along with other admissible evidence, so as to
may be admissible as evidence. By express satisfy the court of the basis of the grant of writ.
provision of this rule.
- Subject to requirements: All in all, there are 14 exceptions to Hearsay Evidence Rule. 11 from
Rules of Court, and 3 from the jurisprudence and special rules.
1. The proponent of the hearsay statement must
inform the adverse party of this kind of evidence OPINION EVIDENCE
and the specifics of the proposed testimony. This
is to give the adverse party the chance to Basic is the rule that cases are to be decided based on facts. Trial is
intelligently object to the proposed hearsay process where facts are established by the use of evidence. Since
testimony. So the adverse party must be inform facts are required to support the findings. The opinion of the witness
in advance of the intention to present it and its is not admissible because it is not based on facts. Or not a fact itself.
But there are recognized exception when the opinion is admissible.
2. If the child is available to testify, the court 1. Opinion of an expert witness
upon motion of the adverse party must make - An expert expressed his opinion based on established fact
sure that the child be produce in court for o When the doctor witness testify that based on
purposes of cross examination. his examination, the witness appears to have
Ex. Mr. B testify of the statement of been raped. The witness has no personal
the child. But if the adverse party knowledge of the fact of rape since he was not
intents to cross examine the witness, there when it happened. But base on his
the child must be presented or expertise, he could express his opinion that the
produced for purposes of cross victim cud have been raped. Admissible as
examination, if the child is available. evidence.
- Requirements:
If not available, the hearsay
statement of the child may only be
Pelaez Moot Court - Evidence Transcript Team 2015-2016

a. Possess the necessary skills, knowledge, o Mr. P may testify that at the time of incident,
experience and training to have been found as Mr. M was drunk. Opinion as to the emotion,
expert on the matter he is testifying about. behavior, condition, appearance of another.
On matters of Psychology, the witness
should have bene shown to have
possessed the required skills,
What is therefore prohibited the Opinion rule as an exclusionary
knowledge, experience and training.
rule is the testimony of the ordinary witness that requires special
Expert testimony on matters requiring
knowledge, skill, training and experience.
expertise, that is a an exception to
hearsay. The most important part, the Expert witness on expert matters is allowed. Ordinary witness on
expert witness must be shown such ordinary matter is allowed. BUT ordinary witness on expert
expertise. matters. Not allowed.
Before you present a witness to be
presented as an expert, you as a
proponent need to establish his
expertise. One way of short circuiting, Case: de Llana vs Rebecca
ask the other party to stipulate on the - This case involves a whiplash injury
expertise of your witness. If the other - The victim there was a doctor herself. She testify on her
party does not stipulate, establish the behalf and identity the medical report of her attending
expertise. physician. Who was not presented?
- SC said that even if she knew about it being a doctor
2. Testimony of an ordinary witness on the matters that not herself, she could not testify on the reports of another
require expertise doctor because she was presented not as an expert
- An ordinary witness may express his opinion that do not witness, but as an ordinary witness being the victim of the
require skills, knowledge, experience and training. incident.
- So ordinary witness on ordinary matter
- What are these ordinary matters? If a witness is offered as an ordinary witness, he cannot, even if
a. Identity of another person truly an expert, be allowed to testify on matters which needs
o So long as proper basis is shown. It must be expertise.
shown that the ordinary witness has sufficient
knowledge on the identity of the other
o Maybe because of the relationship. Basis here is
the sufficient knowledge of someones identity. CHARACTER EVIDENCE
- Generally, inadmissible. Because a party or a case should
b. Handwriting of another
be decided based on the acts or omissions subject of the
o Ordinary witness may identify and attest to the
court that the particular hand writing is the
- It should not be based on the character of the person
handwriting of the person. He can do that.
o And even if not present when the handwriting
o If Mr. M is charge with acts of lasciviousness, he
was affixed, but the witness can express his
should be convicted on the basis of the act
opinion that the particular handwriting belongs
complained of. He should not be convicted
to that person.
because of his character of a lewd person.
o That testimony is admissible so long as proper
Lustful character. Even if he is known to be
basis is established.
sexually addict. Even if he has that character, he
The proper basis there is sufficient
cannot be convicted of the crime charge with
knowledge or familiarity of the
only that.
handwriting. Established why he
o Unfair to crucify someone based on his character
obtained familiarity with the
o Based on the premise that everyone has the
right and the opportunity to reform.
o Maybe maniac 5 yrs. ago. But not so today. His
c. Mental sanity of another.
character 5 yrs. ago should not be made basis of
o Mr. P may express his opinion that Mr. M is
his conviction.
insane. That is an opinion made by an ordinary
witness regarding the mental sanity of another. BUT the rules recognized exceptions.
That is allowed.
o So long as proper basis is shown. Proper basis is Instances where evidence of character is admissible.
the fact that that witness has adequate
knowledge abut the mental sanity of another.
The rule depends on whether it is introduced in a criminal case or in
d. An ordinary witness may testify as to his expressions
a civil case. And it depends on whether the character pertains to the
of another emotion, behavior, condition, appearance,
character of the accused, character of the private offended party or
these are matters that he may testify and admissible.
the character of the witness. Different folks, different strokes.
Different rules.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

- SC said that there are 2 provisions in the rules which

relates to character evidence
1. Character evidence in relation to Criminal cases - The first is embodied under section 51, which deals with
- The accused can always prove his good moral character the character evidence.
which is pertinent to the moral trait involved in the - And the second is under Section 14 of rule 132 which deals
offense charged. with the impeachment of the witness.
- The right of the accused to prove his good moral character
so long as that good moral character is pertinent to the We go to the first, section 51. The bad moral character of the private
moral trait involved of the offense charged offended party, if tends to prove the probability or improbability of
o If Mr. M is charged of the crime acts of the offense charged.
lasciviousness, the moral trait involved is
chastity. So he can always prove the he is a - SC said that for this rule to apply, though it states to
person of chaste character. criminal case lang, SC applied here it in an administrative
What about the prosecution? 2 rule is, in criminal cases, - For this rule to apply, it is necessary that the character
unless in rebuttal, the prosecution may not prove the bad evidence should relate to the moral trait pertinent to the
character of the accused. offense charge.
o So at the first instance, the prosecution cannot - In this case, Belagan was charged with sexual harassment,
prove the Mr. M is a person of unchaste the moral trait involved is the chastity.
character. o If charge is murder, moral trait is character for
- The prosecution can only prove the bad moral character of violence or peace.
Mr. M which pertinent to the moral trait involved during o If theft or estafa, character is honesty.
rebuttal. - These 45 various case, not one involved relates to a sexual
- Meaning if during Mr. Ms evidence in chief, Mr. M tried to offense. These cases involved defamation, malicious
prove his good moral character, the prosecution now is mischief, slight physical injury. Libel.
given the opportunity to rebut the evidence of Mr. M. - These character evidence that Belagan presented are not
- And so in rebuttal, the prosecution may now prove the pertinent to the moral trait involved of the offense
bad character of Mr. M. charged. Thus, not admissible under section 51.
- But not at the first instance. Only during rebuttal. NOTE.
What about under section 14, Rule 132? The rule which governs
impeachment of witness.

2. Character of the private complainant? Victim? - The adverse partys witness may be impeached by
- Under section 51, rule 130. The character of the offended contrary evidence, prior inconsistent statements, evidence
party whether good or bad may be proved if it is to that his general reputation for truth, honesty and integrity
established the probability or improbability of the offense is bad. That is character evidence.
charged. Note. - SC said that when Belagan presented evidence consisting
- Can be proven if it tends to establish the probability or of the derogatory record of the complainant, he was
improbability of the offense charged. obviously was trying to prove that she was not a credible
witness, trying to impeach.
Note. Not all character evidence are admissible. In so far as private - In this case, the 22 various cases filed with MTC, occurred
complainant as concerned, only those moral character which are in 1986. The present case happened in 994. Over a decade.
pertinent to the offense charged. The 23 cases occurred in 1979.
- These character evidence, the reputation existed a decade
Because the law requires that it tends to establish the probability or ago and cannot be made a reliable basis of establish the
improbability of the offense charged. credibility of a witness. Too remote from the commence of
the suit
- This can be done if the moral character is pertinent to the
- SC said that the 10 yrs. time difference is too remote to
moral trait involved in the offense charged.
judge the credibility of the witness.

Case: CSC vs Belagan (Important case)

THUS, in this case:
- Superintendent of the DepEd, charged with various
Under section 51, which involves the party character of private
offense of his subordinates. One of which was a teacher.
complainant, not applicable. Since there was failure to establish that
And this complaints involved sexual harassment.
the moral character was pertinent to the moral train involved.
- By way of defense, Belagan tried to prove the bad moral
character of the complainant, and the evidence presented
where evidence of the numerous cases filed against the
complainant. NOTE: section 51 and section 14 have different purposes.
- It was established that the complainant was charged with
22 various rim cases with MTC and 23 cases with office of - In section 51, this tends to establish the probability or
the barangay captain. Thus, totaling to 45 various improbability of the offense charged. Given the character
offenses. Character evidence. of the complainant, that issue is whether or not the crime
has been committed.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

- In section 14, the credibility of the witness. The issue is - You cannot prove the persons bad reputation by specific
whether or not he is credible. The only trait u can prove is wrongful conduct but only by general or common
character for truth, honesty and integrity and no other. reputation.
Whether he can be worthy of belief.


So, judging the admissibility of the charter of the complainant, in NOT THE ISSUE IN THE CASE, the specific acts cannot be used to
light of section 14. SC said it must be establish that the character in prove the moral character because the accused would be prejudiced
relation to truth, honesty and integrity of the witness, should be as he would not be prepared to meet the specific acts intending to
have existed during trial or prior thereto but not too remote in time prove the moral character. Second: since the acts are not the very
from the commencement of the suit. issue to the case, it would only clutter the issue/ records of the case
because the case is only about the particular act so it would cause
IOW. If you want to impeach a witness by evidence of his general confusion. Third: because of the confusion, it would result in the
reputation for his character of truth, honesty and integrity, the rule undue delay of the disposition of the case. That is why it is not
is that character must be establish to be existing during or prior to admissible. So only evidence of general reputation of the person
the suit but not too remote in time. concerned.


cannot be any prejudice because he is presumed to meet the issue.
How do you prove character evidence?
And since it is the very issue in the case it will not clutter the case
Note: 2 ways to prove to prove character. and would not result in the undue delay because everything would
be limited to that act alone.
a. evidence of specific wrongful conduct
b. by common reputation PRESENTATION OF EVIDENCE

2 situations where character evidence may be admissible: Depends on the kind of evidence:

1. If the moral character of the person is the very fact in Testimonial present witness
Document / object present the object or document
o Like in prosecution for libel.
o Ex. Mr. P circulated in facebook that Mr. M is a Section 1 rule 132. A witness is required to testify orally. Except if
corrupt mayor. Libelous. So, angered by the the witness is incapacitated to speak or the question requires
publication, Mr. M filed a libel suit. another mode of answer or requires the use of affidavits.
o Rule here? Since the moral character of Mr. M is
the very issue of the case. Mr. P can prove the Direct, cross, re-direct, re-cross, should be done orally but with the
bad character of Mr. M by specific wrongful act enactment of the judicial affidavit rule, direct examination should be
or conduct. And so Mr. P can establish the fact done through affidavits, cross-examination, re-direct, and re-cross
that Mr. M was accused of stealing before. This are done orally.
is allowed because the moral character to be
established is the very issued of the case. So when you present a witness with a judicial affidavit, instead of
asking him direct examination questions, just ask him to identify the
What if not the issue of the case? But just a circumstantial evidence affidavit and that will take the place of direct examination. In the
to prove a fact in issue. To support the interference that the moral process of asking questions, there are questions which are not
character of a person is consistent or inconsistent of the offense allowed, the rules mention 2 types of objectionable questions, :1)
charge? Leading 2) Misleading

- Example: moral character is not the issue of the case but Leading- a question that suggests to the witness the answer desired
just a circumstantial evidence of a fact in issue. by the examining party.
o Murder case where the accused interposes a
defense of self-defense. Establish unlawful The effect is that the examining counsel is the one answering the
aggression and that the victim was the one who question, not the witness. This is not allowed in direct examination
was aggressive. because of the relationship between the proponent and the witness.
o Prove the character evidence of the victim. Theyre supposed to be on the same side, on the same team and the
o Prove that the victim was a person of violent likelihood that the witness will just confirm the question of the
tendency. But this is not the main issue. Since counsel.
the main issue is the killing.
Instances when it is allowed:
o But the character of the evidence of the victim
as an aggressor, violent man is circumstantial 1. In cross-examination- it is encouraged because you will
evidence to prove the fact in issue that the lead the witness into a trap. Rather than asking open-
victim was the aggressor. ended questions which will give the witness an
opportunity to explain.
How to prove the moral character of the victim that he was the
aggressor or someone who is violent.

- Prove by general reputation.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

How do you avoid leading questions? The best way is to ask

open-ended questions : what, how, when, who. Cross examination is not only related to the direct, or matters
connected thereto, but it may also cover ANYTHING BEARING UPON
2. Concerning preliminary matters as long as it does not go THE ISSUE SO LONG AS IT IS RELEVANT TO THE FACT IN ISSUE EVEN
into the gist of the testimony of the witness. IF IT IS NOT TAKEN IN THE DIRECT.

3. Direct examination of a hostile witness it is encouraged So if a witness testifies that he was present during the execution of
because it is as if you are conducting cross- examination. the promissory note, in the cross you can ask about payment, or he
was present in signing the receipt, matters that were not touched
during the direct. Because payment is a matter which is relevant to
What makes a witness hostile? the issue of the case, it may be allowed in cross, precisely
constructive purpose. You test the bias, ill-will of the witness and so
Witness should be declared by the court as hostile witness, you
on and so forth.
have to establish the hostile character of the witness.
You remember the three: 1. Observation, memory, transmission
these are the matters you can explore in the cross.
By showing the witness adverse interest, or by showing that
RE-DIRECT- covers matters taken up during the cross the purpose is
the witness has mislead you into calling him as witness and has
to explain or supplement the answer. If as a result of the cross some
turned against you before the presentation of your evidence,
aspects of the testimony were shaken that needs to be explained,
and by showing unreasonable reluctance to testify.
thats the opportunity for you to supplement the answer.
4. If the witness is the adverse party
RE-CROSS EXAMINATION purpose is to demolish or to elicit
Adverse party witness the adverse party. You are the plaintiff,
favorable admissions on matters taken on the re-direct. Exception is
you call the defendant as your witness. Does not need
matters not taken up at the discretion of the court.
declaration by the court, being the adverse party, it is
presumed that he is hostile. No need to prove the 3 mentioned AUTHENTICATION AND PROOF OF DOCUMENTS
for hostile witness.
How do you prove documentary evidence in court?
Hostile witness requires declaration of the court.
Two documents
Both are the proponents witnesses, you conduct the direct
examination and even if you employ leading questions that is 1. Public enumerated in section 19 rule 132.
still allowed in direct examination because the witness is not on *Records of official acts or written official acts of the
the side of the proponent. sovereign authority, official bodies and tribunals whether
of the Philippines or of a foreign country.
They may be cross-examined by the adverse party that happens
to be his own counsel. The only LIMITATION IS IN THE CROSS- *Documents acknowledged before a notary public
CONTAINED IN THE EVIDENCE-IN-CHIEF. *Public records kept in the Philippines of private
documents required by law to be entered therein.
The rule is that the proponent may not impeach is own witness,
(Example is birth certificate)
if you present your witness you are deemed to have vouched
the honesty and credibility of the witness and you assure the
2. Private not covered under the above mentioned.
court that your witness is honest. The rule prohibits the
proponent from discrediting his own witness, you cannot prove
that he is a liar, or a person without integrity. EXCEPTION IS Unlike in criminal law, there are official and commercial documents.
cannot be impeached on the ground of bad moral character.
They can be impeached in any other modes except of
evidence of bad moral character / reputation for truth, Authentication as applied in documentary evidence proving the
honesty, integrity is bad. genuineness and due execution of the document, In object - process
of proving that the object is the very object used in the controversy.
TN: Authentication applies only if the document is private.
1. DIRECT EXAMINATION examination propounded by a party
who calls the witness to the stand. Coverage is on matters If you present a document under section 19, you only present it and
relevant to the case or the so called evidence-in-chief. If you prove its existence but not authenticate it BECAUSE they are
are the plaintiff you prove your cause of action. presumed to be genuine and authentic, it enjoys the presumption of
How do you prove a public document?
It depends on the kind of public document involved, whether it is
1. Destructive purpose if you intend to demolish or destroy paragraph a, b or c. If it falls under paragraph a (records of official
the testimony of the witness. acts or written official acts of the sovereign authority, official bodies
2. Constructive purpose you use the testimony of the and tribunal)
witness to your advantage.
Pelaez Moot Court - Evidence Transcript Team 2015-2016

By: identify as such as the proponent claims it to be. If it is a

forged, prove that it is forged.
1. official publication in our jurisdiction the official gazette.
2. Copy.
Both the witness and the testimony must be credible
Why copy? Because maybe the original may not be taken out of its
custody because public records are not usually taken out of its If testimony of Pope Francis (even if he is a credible witness) is not
custody. In relation to the BER, if it consists of public documents, the credible, the court is obliged to ignore the testimony if the
certified true copy is the secondary evidence. testimony itself does not stand scrutiny because it is incredible. The
court should not give it full weight or credence because the message
Under section 24 in relation to sec. 25, if that document falls under and the messenger, the singer and the song, the witness and the
paragraph a, if kept outside the Philippines, there are requirements: testimony should both be credible.
1. If it is a copy it has to be accompanied by an attestation to
The witness is credible if his reputation for honesty and truth is good
be executed by the legal custodian containing a statement
and if his testimony is consistent with human nature and ordinary
that its a faithful copy of the original.
course of things. So if you come up with a theory of your cause of
2. If kept outside the Philippines, must be accompanied by a
action or defense, make sure your version is credible. Also make
certification issued by the consular office of the
sure that you have credible witness to carry your story.
Philippines in that country with a statement that the
person who issued the certification is the legal custodian
It is also your duty to discredit evidence of the adverse party.
and authorized to issue such certification
Strengthen your position, demolish the opposite sides position. That
is how you win in litigation.
Not all are needed to be accompanied with a certification, the
only requirement for a consular certification is if the document Section 11. Impeachment of adverse party's witness. A witness
is WRITTEN OFFICIAL ACTS/ RECORDS OF OFFICIAL ACTS OF may be impeached by the party against whom he was called, by
THE SOVEREIGN AUTHORITY (PARAGRAPH A), if kept in the contradictory evidence, by evidence that his general reputation for
Philippines, no more need for certification. = Ruling in Heirs of truth, honestly, or integrity is bad, or by evidence that he has made
absillia v. teodora. at other times statements inconsistent with his present, testimony,
but not by evidence of particular wrongful acts, except that it may
Heirs of medina case is not consistent with the express be shown by the examination of the witness, or the record of the
language of the rules. judgment, that he has been convicted of an offense.

Supposed the public document is a document acknowledged Essence of impeachment is to discredit the witness of the adverse
before a notary public? Just present the document, the party.
certification signed by the notary public is a prima facie
evidence of its due execution. And it has to be identified by a Impeaching a witness may be done in the course of cross-
witness. examination or by presenting your own evidence in your evidence-
If the public document is under paragraph c (Public records
kept in the Philippines of private documents required by law to
Three Modes of Impeaching a Witness
be entered therein) -2 ways

1. present the record itself 1. Contradictory evidence

2. if not available, certified copy.
Typical example of this is when the prosecution presents an eye
witness who claims that on such a such a date, time, and place, he
WHAT ABOUT PRIVATE: witnessed the crime. You impeach him by contrary evidence by
presenting a witness during your turn for presentation that on such
It may be admitted if its duly authenticated, the proponent needs to a such a date, time, and, place, the eyewitness was in Jolo, a
comply with authentication which means to prove the genuineness hundred kilometers away from the crime scene where the witness
and due execution by presenting a witness who is present during the claimed to be at the time of the incident. The court may reject the
execution or familiar with the handwriting/signature of the party. testimony of the eyewitness because of the presentation of the
Exception to the requirement of authentication: contrary evidence. Such eyewitness is deemed impeached.

1. Ancient documents a document more than 30 years old 2. Prior Inconsistent statement
produced from a custody which is naturally found as
genuine and unblemished by any alteration / suspicion If the prosecutions witness testifies that on such and such a
just prove that it is 30 years old, produced from a custody date,time, and place he was there and witnessed the killing of the
which is naturally found as genuine and that it is victim during the trial. But this witness testified during the
unblemished by suspicion or alteration. (more difficult to preliminary investigation before the prosecutors office that he was
be proved.) not present during the incident in question. His statements are
2. When the private document is offered not as an authentic inconsistent.
document. if it is offered as a forgery, you dont
authenticate it. The only requirement is you have to How do you impeach?

Pelaez Moot Court - Evidence Transcript Team 2015-2016

Establish the witness made two contradictory Testimonial Evidence- made right after the witness is called to the
statements. This in itself is not sufficient stand and before he is asked direct examination questions. Specify
Confront the witness with the prior inconsistent the gist of the testimony.
statement. Relay to him the specific time, place, and
persons present when the prior inconsistent statement What is the effect if the witness testifies without any formal offer of
was made. If he is confronted with the transcript of evidence?
stenographic notes, the witness is more likely to admit
that he made such prior statement. Concepcion Capuera vs CA
Ask the witness to explain the inconsistency. If the FACTS: The accused there was prosecuted for 2 counts of estafa for
statements are really inconsistent, the witness will be issuig bouncing checks. During the trial the prosecutor presented the
unable to give a satisfactory explanation. The witness is private complainant under direct examination without first making
deemed impeached since he is not trusted with his an offer but the defense counsel also just kept his silence waiting for
statements. the completion of the direct examination. Then he moved that the
testimony of the witness be stricken off for failure to make a formal
Neither testimony is given credence because is regarded as a liar. offer.
However, if he has satisfactory explanation for the inconsistency, SC: The failure of the defense counsel to object to the testimony of
then the court may disregard one statement for being taken out of the witness on the ground that there is no formal offer amounts to
context and admit the other statement. the waiver of his right to object so that he cannot anymore move
that the testimony be stricken off the record on the ground that
What happens if the witness denies having made such prior there was no formal offer.
inconsistent statement? : It was incumbent upon the adverse counsel to object to the
testimony of the witness when the ground therefore becomes
Go back to the first mode. Present contrary evidence. Present the apparent. The ground becomes apparent when the witness started
stenographer who took the testimony of the witness during the testifying on the direct examination without the formal offer being
preliminary investigation. The court will find the witness an made. Failure to object immediately amounts to a waiver. This
unreliable witness. So he is impeached under the first mode, not the amounts to a waiver and the testimony of the witness cannot
second mode. anymore be stricken off. This is the controlling doctrine.

3. Evidence that his general reputation for truth, honestly, SIR: So object immediately during the direct examination.
or integrity is bad
But this ruling of the Supreme Court earns so much criticism in the
*We have already discussed this. legal community because the rule in objection is: The Objection
should be made after a formal offer is made.
You cannot establish the bad character of the witness by evidence of When there is nothing to object, why raise an objection? If there is
specific acts or conduct except a copy of a final judgment or no formal offer made, there is nothing to object.
admission by the witness that he was convicted of a crime in the TAKE NOTE: The objection to an offer should be done AFTER AN
And besides the Supreme Court said it is incumbent upon the
proponent to make sure he makes a formal offer before presenting
OFFER AND OBJECTION his witness. And for his failure, you cannot punish the adverse party.


The court shall not consider evidence which is not formally offered.
The purpose of the evidence must be specified. 1. IF THE OFFER IS OBJECTIONABLE
Objection should be raised as soon as the grounds
Even if the evidence already forms part of the record of the case, the therefore become apparent. So raise the objection
court is not supposed to consider it in the appreciation of the seasonably or immediately, otherwise the effect is waiver.
evidence if not formally offered. It is as if the evidence does not exist 2. PERFECT OFFER BUT QUESTIONS ARE OBJECTIONABLE
at all. Object as soon as the question is asked. Do not wait for
the witness to answer because what is objectionable is the
Specify the purpose for which the offer is made. In Uniwide Sales vs. question. So, as soon as the question is asked but before
Titan-Ikeda on multiple admissibility, the evidence may not be the answer is given.
admissible for one purpose but admissible for another purpose. The 3. PERFECT OFFER, PERFECT QUESTIONS, BUT THE ANSWER
opposing party can intelligently oppose to the formal offer if he IS OBJECTIONABLE
believes that the offer in so far as the purpose is concern is The ground for objection to an objectionable answer is
objectionable. The court can also intelligently rule on the objection if only known when the answer is given. So you cannot
the purpose is specified. object to the answer before the answer is given. So what
do you do? You move that the answer be stricken off the
If no formal offer and specific purpose- the evidence shall not be record because (it is not responsive to the question, it is
considered. hearsay, it is speculation, the question does not call for an
How do you make a formal offer?
Again, all of these should be raised SEASONABLY.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

There are instances when one objection applies to the series of WHAT HAPPENS IF YOUR EVIDENCE TESTIMONIAL, OBJECT OR
questions asked. Now the rule does not burden you to raise the DOCUMENTARY IS EXCLUDED BY THE COURT?
same objection with the same objectionable questions asked. So it is If you believe that the exclusion is erroneous and that evidence is
possible that the first objection is objectionable, the court resolves vital to your defense, your remedy is to avail of the TENDER OF
whether it sustains the objection or overrules the objection, and the EXCLUDED EVIDENCE otherwise known as OFFER OF PROOF.
succeeding questions are the same as the questions objected to,
whether overruled or sustained, you dont have to raise again the Ex. You presented a witness but the adverse party objected so for
objection when the same succeeding questions are asked. You just some reason or another the court did not allow your witness to
have to register your CONTINUING OBJECTION to the same types of testify. And that evidence is so vital. And without that testimony,
objectionable questions. Your honor may we register our you have nothing. So your remedy is, you APPEAL and TENDER OF
continuing objection to this type of questions. Then any question EXCLUDED EVIDENCE. This is a remedy to preserve the evidence
with the same nature as the first are deemed objected to. which was excluded by the trial court. So, you keep it on record so
the appellate court can have the opportunity to take a look at the
WHAT ARE THE GROUNDS FOR OBJECTION? excluded evidence and evaluate the action of the trial court whether
There are so many. The exclusionary rules that we discussed. it is improper.
Best Evidence Rule
Lack of authentication It depends on the type of evidence which was excluded by the court.
Irrelevant, immaterial
TESTIMONIAL ex. Your witness was not allowed to testify.
What is prohibited in Parol Evidence Rule? Place into the records the full name and personal
Extraneous, either oral or documentary. Evidence that varies the circumstances of the witness and place into the
contents of the document. record the gist of the proposed testimony of the
HOW DO YOU OFFER AND OBJECT A DOCUMENTARY EVIDENCE? Your honor with the exclusion of our testimony
Different from that of testimonial. we would like to make a tender of excluded
evidence, the witness name is and personal
When do you make a formal offer of an object or documentary circumstances are, had the witness been allowed
evidence? to testify, these would have been his
Done after all of the witnesses of that party had testified. So it is testimonies: 1, 2, 3 etc.
done at the end of presentation of evidence of each party.
May be done orally especially when theres only a few. In this case, it If the appellate court will read this and find later
should be OBJECTED TO ORALLY by the adverse party. on that the lower courts order is improper, then
But when the formal offer is made in writing, the adverse party is the appellate court will reverse the order of the
given 3 days within which to file his objection or comment unless lower court, consider the testimony and
the court allows a longer period. probably reverse the decision if so warranted.

TAKE NOTE: In the course of the trial, the documentary evidence OBJECT OR DOCUMENTARY
needs to be identified or authenticated by a sponsoring witness. And By filing a pleading in court for tender of
the documents identified may be marked in the course of the excluded evidence and describe the document
proceedings. or object evidence and submit or attach to the
Common mistake: you dont object to the admission of an object or record the object or document and the appellate
document during the time the time these evidences are identified, court will look into it and will rule WON the
authenticated and marked by a witness. exclusion is proper.
Ex. If the evidence is a photocopy and the object of the inquiry is
contents of the document, the rule involved here is Best Evidence, On appeal, the appellate court will determine if the exclusion of
so the witness identifies it and the moment it is marked, and you the evidence was proper.
know it is just a photocopy, you cannot object to the marking of the
photocopy under the best evidence rule. BECAUSE OBJECTION TO This question was asked in the previous bar exams.
Identification, authentication and marking is NOT a formal offer. If it Two Stages of trial
is done before the formal offer, it is premature. So you wait for the
formal offer. 1. Admissibility determined by rules on relevancy and
Failure to object to an object or documentary evidence during the
2. Weight and Sufficiency credibility of the evidence
identification, authentication and marking stage will not amount to a
admitted. The court will evaluate the evidence whether it is
waiver of your right to object to an admission. sufficient or worthy of belief to form a conclusion.
So if you object during the identification, authentication and Three quantum or standard of evidence
marking stage but did not object when the formal offer is made,
then that amounts to waiver because your objection earlier is not (1) Proof beyond reasonable doubt erases or forecloses
honored because it is premature. all reasonable doubt; applied in criminal cases for an
accused to be convicted; if there is any doubt, the court

Pelaez Moot Court - Evidence Transcript Team 2015-2016

must acquit. What needs to be corroborated by corpus delicti, the extra-

The prosecution has the burden to prove the guilt of the judicial confession itself or the testimony of the person who
accused. The defense is only required to create doubt to heard the extra-judicial confession?
obtain acquittal. Acquittal does not necessarily mean
innocence. It may mean that the evidence was not enough Policewoman killed her husband. On the road, she confessed
to establish the guilt of the accused. The court almost all of to another policeman about the killing.
the time acquits the accused by saying that he is not
guilty, not that he is innocent. Not guilty not enough
Allegedly, the barangay captain lives near the place of the
confession was made. He testified to corroborate the
(2) Preponderance of evidence applied in civil cases. confession made by the policewoman. A conflicting evidence
was presented to prove that the barangay captain was not able
Comparing the evidence of two contending parties, whose
to hear it since he was inside the house at that time. It was
evidence is superior or has greater weight.
argued that the testimony of the barangay captain is necessary
(3) Substantial evidence applied in administrative cases to corroborate the testimony of the policeman who heard the
confession of the accused policewoman.
and in proceedings involving Writ of Amparo(Section 17,
Amparo Rule). There is reasonable basis to conclude or to
support the conclusion. The standard of a reasonable SC said this is not how the corroboration of the extrajudicial
prudent man is applied. confession is made.
What must be corroborated is the extrajudicial confession and
(i) Equipoise Rule when an act or circumstances is not the testimony of the person to whom the confession was
susceptible with two interpretations, the one consistent with guilt made, and the corroborative evidence required is not the
and the other with innocence, the one consistent with testimony of another person who also heard the confession but
innocence should be upheld. the evidence of corpus delicti (People vs. Lorenzo).

A crime involving a violent confrontation between two groups.

While one person was attacking another, the friend of the Is it required that all elements of the crime charged must be
attacker was restraining the friend of the person being established by independent evidence apart from the
attacked. extrajudicial confession?

Two interpretations: No. Section 3, Rule 133 of the Rules of Court does not mean
Guilt - The act of restraining was to prevent the other from that every element of the crime charged must be clearly
helping his friend therefore being an accomplice to the crime. established by independent evidence apart from the
Innocence - It was to keep him from harms way. confession. It means merely that there should be some
evidence tending to show the commission of the crime apart
where the evidence on an issue of fact is in issue or from the confession. Otherwise, the utility of the confession as
there is doubt on which side the evidence preponderates, the a species of proof would vanish if it were necessary, in addition
party having the burden of proof loses. Hence, if the to the confession, to adduce other evidence sufficient o justify
inculpatory facts and circumstances are capable of two (2) or a conviction independently of such confession. In other words,
more explanations, one of which is consistent with innocence the other evidence need not, independently of the confession,
and the other consistent with guilt, the former should prevail, establish the corpus delicti beyond reasonable doubt (People
for then the evidence does not suffice to produce a conviction vs. Lorenzo).
(Abarquez vs. People).

(ii) Actors Rule - where the testimonies of witnesses on one Is circumstantial evidence sufficient for conviction?
and the same factual issue are inconsistent with each other, the Yes, circumstantial evidence is sufficient for conviction if the
testimony of the witness whose action is more connected to the following requisites are present:
point at issue should be given more credence. Thus, as (i) there must be more than one circumstance;
between the carpenter and the tenant, the latter should be given
more credence, being more closely connected to the point at (ii) the facts from which the inferences are derived are
issue, that is, whether the improvements are found on the proven; and
litigated lot. For while a carpenter would not concern himself
with the title of the property, a lessee would normally look into iii)the combination of all circumstances is such as to
the title of the property leased, including its precise location and produce a conviction beyond reasonable doubt.
boundaries (Heirs of Vicente Reyes vs. Court of Appeals).
It is very difficult to obtain a conviction based only on
circumstantial evidence especially if there is no witness. There
Extra-judicial confession is not sufficient to convict the accused, is no crime if there is not witness. But I am not suggesting
unless corroborated by evidence of corpus delicti (Section 3, anything.
Rule 133)


1. Material or physical evidence constituting the crime

2. The fact the crime has been committed. There is a crime.

There is a victim. And there is someone responsible for the act.

Pelaez Moot Court - Evidence Transcript Team 2015-2016

TIPS: applies only if the BER applies. Meaning, secondary evidence

is allowed. Basically, exception is different from inapplicability.
The mockbar or bar dwell on basic questions. do not
overanalyse they are not supposed to ask complicated MCC Sales v. Ssangyeong
questions. trust that the examiner has no desire to trick you. do th
not look at your examiner as if you are looking at me. Because Came out sa mockbar sa 4 year.
obviously you do not trust me when I ask questions. you tend
Fax. EER.
to overanalyse.
Codilla v. NPC
You go over the codal provisions. You cant go wrong with the
codal provisions. Memorize the important rules. BER. Parole. Presence of manual signature negates the electronic character
Hearsay. There is no question about evidence that will not of a document.
involve this topics.
Jaime Dela Cruz v. People
Ramirez v. Alvarez
Questions about consti law. Right against self-incrimination
Marital DQ rule. 3x it came out in the bar. It is a breakthrough. applies to prohibition of testimonial compulsion. Does not cover
Husband burned down the house wherein his sister is staying. physical examination like blood or urine test. However, in this
His wife testified against him. MDQ does not apply when case, SC said that in those cases where non-testimonial
domestic relation is already strained. evidence is excluded from RASI, this non-testimonial evidence
must be related or relevant to the basis for the arrest. How on
Pacres v. Igona
earth can the allegation of extortion give rise to urine
Parol evidence rule. Stipulation pour autrui. A beneficiary of examination?! No relevance at all. SC sometimes make sense.
this stipulation is considered as a party to an agreement and
Disierto v. Estrada
therefore bound by PER even if his name is not a party nor a
signatory to the contract. Rule on admission against interest. Rule on admission by an
agent. Hearsay evidence rule. Doctrine of adoptive admission.
Ureta v. Ureta
Other questions asked
PER presupposes valid agreements. If the agreement is
assailed to be void, PER does not apply. A void agreement is Define Rape-shield rule. Sexual abuse shield rule.
not binding. Documentary Stamp Tax as a rule of exclusion.
Chan v. Chan

Nullity of marriage. Patient-physician privileged communication (walang forever)

rule applies not only to testimonial evidence. Revealing the
contents of a medical report amounts to the physician
testifying, therefore it is covered.

People v. Enojas

Electronic evidence rule applies to all cases including


The manner of authenticating text messages, who may


- A party to the text communication

- Someone who has personal knowledge of the text

Atienza v. BOM

Court can take judicial notice of anatomical position of kidneys

since it is covered by Laws of nature (mandatory judicial

Dela Lana v. Rebecca

Whiplash. An injury you should avoid. Do not ever get bumped

from behind or you will suffer from whiplash injury. The court
cannot take judicial notice of the laws of medicine. The court
has no expertise to determine the cause of whiplash injury.

Heirs of Prodon v. Alvarez?

Best evidence rule. If the BER does not apply, the proponent
can always present any other evidence, a copy or a testimony
of a witness, without having to comply with the requirement of
accounting for the original. The requirement of the accounting