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LAW ON EVIDENCE based on the lectures of ATTY.

JESS ESPEJO

August 17, 2016 “Billing shall be every fifteen (15) days. After three (3)
months of satisfactory performance, the parties may
INTERPRETATION OF DOCUMENTS negotiate for the extension of this contract and other
matters that might be advantageous to both parties."
Rule 130, Section 10. Interpretation of a writing according to its
legal meaning. - The language of a writing is to be interpreted 12. TERM OF CONTRACT:
according to the legal meaning it bears in the place of its execution,
unless the parties intended otherwise. "This Contract shall take effect on May 25, 1994 and shall
be for a period of One (1) Year from said date. Thereafter,
INTERPRETATION ACCORDING TO LEGAL MEANING it shall be deemed renewed for the same period unless
either party notifies the other in writing not later than one
By way of review, it bears to recall the basic principles “LEX LOCI (1) month before the expiry of its intent not to renew.”
CELEBRATIONIS” in the law on marriage and “LEX LOCI
CONTRACTUS”, the Latin term for "law of the place where the One party, after one year, rescinded the contract.
contract is made".
Petitioners objected to the rescission citing paragraphs 5 and 12 of
When the contract is entered into in one place, to be executed in their agreement. Petitioners contend that the court a quo did not
another, there are two loci contractus; the locus celebrate comply with Section 11 of Rule 130 of the Rules of Court, because it
contractus, and the locus solutionis; the former governs in failed to give effect to paragraph 5. They further invoke Section 12
everything which relates to the mode of construing the contract, the of the same Rule, arguing that relative to the provision of the
meaning to be attached to the expressions, and the nature and Contract on the duration of its effectivity, which is one year,
validity of the engagement; but the latter governs the performance paragraph 5 is a particular provision. They conclude that since the
of the agreement. two provisions are inconsistent, paragraph 5 -- being the particular
provision -- should prevail. Petitioners contend that according to
An example is a “non-compete clause”. It is a term used in contract paragraph 5, there is no right to rescind but an obligation to
law under which one party (usually an employee) agrees to not renegotiate.
pursue a similar profession or trade in competition against another
party (usually the employer). This is used to protect so-called “trade HELD: Section 11 of Rule 130 of the Rules of Court states that "[i]n
secrets” from leaking to rival companies. the construction of an instrument where there are several
provisions or particulars, such a construction is, if possible, to be
In the United States, a “non-compete clause” is varied in its adopted as will give effect to all." Contrary to petitioners’
applicability per state. In Virginia, “non-compete clauses” are contention, paragraph 5 is not inconsistent with paragraph 12. More
deemed valid if proven to be necessary to protect legitimate important, the former does not in any way deal with the termination
business interests. Conversely, in California, “non-compete clauses” of the Contract. Neither does it provide for a right to rescind.
are automatically void as a matter of law, being against public policy,
subject to very limited exceptions. At this point, we stress that the right to rescind is implied in
reciprocal obligations, as provided for in Article 1191 of the Civil
In the Philippines, the rule is still couched in general terms to wit: Code, which states:

"ART. 1191. The power to rescind obligations is implied in


Art. 1306. The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient, reciprocal ones, in case one of the obligors should not
comply with what is incumbent upon him. XXX”
provided they are not contrary to law, morals, good customs, public
order, or public policy.
Therefore, absent any provision providing for a right to rescind, the
parties may nevertheless rescind the contract should the other
Rule 130, Section 11. Instrument construed so as to give effect to obligor fail to comply with its obligations.
all provisions. - In the construction of an instrument, where there are
several provisions or particulars, such a construction is, if possible, to
HOME DEVELOPMENT MUTUAL FUND vs. COURT OF APPEALS
be adopted as will give effect to all.
G.R. No. 118972, April 3, 1998

HARMONY IS THE ULTIMATE GOAL HELD: Our pivot of inquiry is the correct construction or
interpretation of subject Consultancy Agreement, particularly its
According to Section 11, one has to harmonize provisions in a provision:
contract with each other.
“That this agreement takes effect on January 1, 1985 to
MULTINATIONAL VILLAGE HOMEOWNERS ASSOCIATION, INC., ET December 31, 1985; Provided, however, that either party
AL. vs. ARA SECURITY AND SURVEILLANCE AGENCY, INC. who desires to terminate the contract may serve the other
G.R. No. 154852, October 21, 2004 party a written notice at least thirty (30) days in advance.”

Two Provisions: The first clause of the aforecited stipulation, which is the bone of
petitioners' stance, basically deals with the term of the contract;
while the proviso, which is the core of private respondents' action,
5. MODE OF PAYMENT: prescribes the manner the service contract in question could be
terminated.

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LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

intention of the parties is to be pursued; and when a general and a


It is petitioners' submission that the first clause referred to is particular provision are inconsistent, the latter is paramount to the
independent, distinct and separate from the said proviso, such that former. So a particular intent will control a general one that is
upon the expiration of the period stated in the first clause, the inconsistent with it.
Consultancy Agreement ceased to have any binding effect between
the contracting parties even though they (petitioners) did not give INTENTION IS PARAMOUNT
any written notice of termination at least thirty (30) days in advance.
Intention is always the first rule of interpretation. In Sales, we
We cannot fathom how contracting parties, who are sui juris, and distinguished a contract of sale from a contract of barter. One of the
knowledgeable of the purposes for which they solemnly put their rules we learned is:
Agreement into writing, could be so careless as to include
inconsistent conditions in such a short and simple provision in their Art. 1468. If the consideration of the contract consists partly in
contract sued upon. money, and partly in another thing, the transaction shall be
characterized by the manifest intention of the parties. If such
Time-honored is the rule that "In the construction of an instrument intention does not clearly appear, it shall be considered a barter if
where there are several provisions or particulars, such a the value of the thing given as a part of the consideration exceeds
construction is, if possible, to be adopted as will give effect to all." the amount of the money or its equivalent; otherwise, it is a sale.
Article 1374 of the New Civil Code, on the other hand, requires that
"The various stipulations of a contract shall be interpreted together, LIGON vs. COURT OF APPEALS
attributing to the doubtful ones that sense which may result from all G.R. No. 84644, August 29, 1989
of them taken jointly." Conformably, to ascertain the true meaning
or import of the controverted provision of subject Consultancy
At the outset, it should be stated that, as a rule, in the construction
Agreement, its entirety must be considered; not merely the first and interpretation of a document the intention of the parties must
clause. Consequently, petitioners' interpretation solely based on the be sought (Rule 130, Section 10, Rules of Court). This is the basic rule
first clause, and which completely ignored the second clause under
in the interpretation of contracts because all other rules are but
scrutiny, cannot be upheld. ancillary to the ascertainment of the meaning intended by the
parties. And once this intention has been ascertained it becomes an
BPI-FAMILY SAVINGS BANK, INC. vs. SPS. DOMINGO integral part of the contract as though it has been originally
G.R. No. 158676, November 27, 2006 expressed therein in unequivocal terms. (Shoreline Oil Corp. vs. Guy,
App. 189, So., 348, cited in 17A C.J.S., p. 47)
Provision:
GENERAL versus SPECIAL PROVISIONS
“Assignment and Sublease – The lessee has the right to
sublease the premises or any portion thereof to a third In the second part of Section 12, we are actually told to apply the
party. The lessee may not, however, assign or transfer its principle "GENERALIA SPECIALIBUS NON DEROGANT", which means
right or interest under this lease without the written that where an act deals specifically with a subject a general
consent of the lessor.” provision in that act does not override the specific provision. If a
matter falls under a specific provision and a general provision, it
HELD: On surface, the foregoing stipulation seemingly insulates Cruz shall be governed by the specific provision.
from any liability in this case. However, basic is the rule that in the
construction of an instrument where there are several provisions or
EMPIRE INSURANCE COMP. vs. REMEDIOS S. RUFINO
particulars, such a construction is, if possible, to be adopted as will
G.R. No. L-38268 May 31, 1979
give effect to all (Rule 130, Section 11). The trial court was quick to
point out, and rightly so, that the first sentence of the aforequoted Section 10 (now Section 12), Rule 130 of the Rules of Court provides
covenant speaks of what the lessee can do, while the second as follows:
sentence refers to what it cannot do without the consent of the
lessor. This is evident from the phrase "may not however" found in
Interpretation according to intention; general and
the second sentence, which means that the act of sub-leasing in the particular provisions — In the construction of an
first sentence may be done by the lessee without the consent of the instrument, the intention of the parties is to be pursued;
lessor but the act of assignment or transfer of rights in the second and when a general and a particular provision are
sentence cannot be done by the lessee without the consent of the inconsistent, the latter is paramount to the former. So a
lessor. Clearly, the parties intended a distinction between a sublease
particular intent will control a general one that is
and an assignment of rights. inconsistent with it.
Under the aforequoted contractual stipulation, BPI-FSB, as lessee, is
Likewise, Article 1372 of the Civil Code stipulates that however
possessed of the authority to sublease the subject premises. No general the terms of a contract may be, they shall not be
mention is made of obtaining any written consent of the lessor understood to comprehend things that are distinct and cases that
(Cruz) as a condition sine qua non for the validity of a sublease are different from those upon which the parties intended to agree.
agreement. What necessitates the prior written consent of lessor
Similarly, Article 1374 of the same Code provides that "the various
Cruz is the assignment or transfer by BPI-FSB as lessee of its right or stipulations of a contract shall be interpreted together, attributing to
interest under the lease agreement. the doubtful ones that sense which may result from all of them
taken jointly."
Rule 130, Section 12. Interpretation according to intention; general
and particular provisions. - In the construction of an instrument, the

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LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

SECURITY BANK CORP. VS. HON. COURT OF APPEALS, ET AL. INTERPRETATION ACCORDING TO CIRCUMSTANCES
G.R. No. 141733, February 8, 2007
Here, one who is tasked to consider the evidence presented is
While it cannot be gainsaid that the terms and conditions in the implored to place himself in the shoes of the parties to the
Contract of Security Services (CSS) were incorporated to the PRA document and envision the circumstances under which the
(sic) as integral parts thereof, nevertheless, We conform to the provisions of an instrument were created. This rule is useful in
finding of the court of origin that the 2nd contract (PRA) precisely interpreting contracts such as equitable mortgages or lease with
and particularly dealt with the mode of resolving PISA’s liability option to buy.
resulting, if any, from [the] March 12, 1992 robbery. (Order dated
July 12, 1993, p.1; Records, p.113). It distinctively provides a clear CASES TO READ:
cut manner by which the right of action against PISA may be
exercised by [SBC] pertaining to a specific robbery incident—a BANK OF COMMERCE vs. GOLDMAN FIELDER
matter visibly non-existent in the CSS. Indeed, this special provision G.R. No. 191561, March 7, 2011
controls and prevails over the general terms and conditions extant
on the CSS. (Yatco v. El Hogar Filipino, 67 Phil. 610) MARQUEZ vs. ESPEJO
G.R. No. 168387, August 25, 2010
When a general and a particular provision are inconsistent, the
latter is paramount to the former. Ergo, a particular intent, as in this GUIDE QUESTIONS:
case reflected in letter e, paragraph 5 of the PRA will control a
general intent embodied in paragraph 9 of the Contract of Security 1. In Goldman, what particular facts and circumstances supported
Services. (Section 12, Rule 130, Revised Rules of Court) Thus, the the Supreme Court’s conclusion that the bank did not intend to
PRA is paramount to and prevails over the terms and stipulations in issue a bank guaranty?
the first contract (CSS) on matters relevant and material to PISA’s 2. In Marquez, how was Rule 130, Section 13, in relation to
liability relating to the robbery. Articles 1370-71 of the Civil Code, used to determine the
applicability of the Parol Evidence Rule?
CASES TO READ: 3. Also in Marquez, why did the Supreme Court hold that the Best
Evidence Rule was inapplicable?
CORTES vs. INTERMEDIATE APPELLATE COURT, ET AL.
G.R. No. 73678, July 21, 1989 Rule 130, Section 14. Peculiar signification of terms. - The terms of a
writing are presumed to have been used in their primary and general
But see: GLOBAL HOLIDAY vs. METROBANK acceptation, but evidence is admissible to show that they have a
G.R. No. 184081, June 19, 2009 local, technical, or otherwise peculiar signification, and were so used
and understood in the particular instance, in which case the
LICAROS vs. GATMAITAN agreement must be construed accordingly.
G.R. No. 142838, August 9, 2001
ORDINARY MEANING IS PREFERRED
EQUITABLE PCI BANKING CORPORATION vs. RCBC CAPITAL
CORPORATION Section 14 provides that when interpreting a term used in a contract
G.R. No. 182248, December 18, 2008 or instrument, its general meaning or ordinary signification is to be
applied. This is an instance when a mere “layman’s understanding”
GUIDE QUESTIONS: is preferred for verily there are contracts that do not require or was
not attended by the intervention of a lawyer. However, evidence
1. In Cortes, what “specific intent” overrode what “general may be introduced that the term used has a local, technical or
intent”? otherwise peculiar signification.
2. Why was the ruling in Cortes not applied in Global Holiday?
3. In Licaros, how did the Supreme Court differentiate between An example of this is the term “PAKIAO”. Under the Omnibus Rules
conventional subrogation and a mere assignment of credit? to implement the Labor Code, Workers who are paid by results,
4. In Licaros, from what specific facts did the Supreme Court including those who are paid on piece-work, "takay," "pakiao" or
determine the true intention of the parties to the contract? task basis are not entitled to certain labor standards benefits.
5. Explain how the Supreme Court applied Rule 130, Section 11, in However, the term PAKIAO may not be understood by laymen in the
relation to Article 1374 of the Civil Code, in finally determining same manner as it is used under the Omnibus Rules.
the nature of the contractual relationship of the parties in
Licaros? SECURITY BANK vs. COURT OF APPEALS
6. In Equitable, why did the Supreme Court rule that there was no G.R. No. 141733, February 8, 2007
need to rely on Sec. 12, Rule 130 despite the fact that two
different provisions of the contract applied to the same subject Paragraph 5 of the PRA specifically states that PISA’s payment was
matter? subject to express terms and conditions, one of which was the
following:
Rule 130, Section 13. Interpretation according to circumstances. -
For the proper construction of an instrument, the circumstances “(e) The parties hereto further agree that this agreement
under which it was made, including the situation of the subject and/or payment of the whole amount of P3,027,728.01,
thereof and of the parties to it, may be shown, so that the judge may shall not affect or prejudice, directly or indirectly, whatever
be placed in the position of those whose language he is to interpret. cause of action SBC may have against PISA and whatever
claim or defense the latter may have against SBC, if the

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LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

maximum recoverable proceeds of the insurance covering term "indicative price." Under No. 6.1 of the General Bidding
the loss suffered by SBC could not be recovered from the Procedures and Rules of respondent, "an indicative price is a ball-
insurer. Further, it is agreed that should Security Guards park figure and [respondent] supplies such a figure purely to define
Wilson Taca and Ernesto Mariano be absolved from the the ball-park." The plain contention of petitioner that the
charge of robbery in band and/or are found by the proper transaction involves an "ordinary armslength sale of property" is
court not to have been involved at all in the alleged unsubstantiated and leaves much to be desired. This case sprung
conspiracy, and that it is duly established through legal from a case of specific performance initiated by petitioner who has
action before the competent court that their failure to the burden to prove that the case should be spared from the
prevent the robbery was not due to their, or their PISA co- application of the technical terms in the sale and disposition of
guards’ negligence and/or willful act, whatever assets under privatization. Petitioner failed to discharge the burden.
installments may have been paid by PISA under this
Agreement shall be reimbursed with legal interest to be It appears in the case at bar that petitioner’s construction of the
computed from the time of actual payment, the same to be letter of February 22, 1993 – that his assent to the "suggested
amortized in eighteen (18) equally monthly installments, indicative price" of P21,000,000.00 converted it as the price certain,
with the interest thereto being based on the diminishing thus giving rise to a perfected contract of sale – is petitioner’s own
balance.” subjective understanding. As such, it is not shared by respondent.
Under American jurisprudence, mutual assent is judged by an
We hold that reading the clause as requiring a final judgment is a objective standard, looking to the express words the parties used in
strained interpretation and contrary to settled rules of the contract. Under the objective theory of contract,
interpretation of contracts. Paragraph 5(e) only requires that the understandings and beliefs are effective only if shared.
proceeds "could not be recovered from the insurer," and does not
state that it should be so declared by a court, or even with finality. In Based on the objective manifestations of the parties in the case at
determining the signification of terms, words are presumed to have bar, there was no meeting of the minds. That the letter constituted a
been used in their primary and general acceptance, and there was definite, complete and certain offer is the subjective belief of
no evidence presented to show that the words used signified a petitioner alone. The letter in question is a mere evidence of a
judicial adjudication. Indeed, if the parties had intended the non- memorialization of inconclusive negotiations, or a mere agreement
recovery to be through a judicial and final adjudication, they should to agree, in which material term is left for future negotiations. It is a
have stated so. In its primary and general meaning, paragraph 5(e) mere evidence of the parties’ preliminary transactions which did not
would cover LIC’s extrajudicial denial of SBC’s claim. crystallize into a perfected contract. Preliminary negotiations or an
agreement still involving future negotiations is not the functional
MORENO vs. PRIVATE MANAGEMENT OFFICE equivalent of a valid, subsisting agreement. For a valid contract to
G.R. No. 159373, November 16, 2006 have been created, the parties must have progressed beyond this
stage of imperfect negotiation. But as the records would show, the
Petitioner further argues that the "suggested indicative price" of parties are yet undergoing the preliminary steps towards the
P21,000,000.00 is not a proposed price, but the selling price formation of a valid contract. Having thus established that there is
indicative of the value at which respondent was willing to sell. no perfected contract of sale in the case at bar, the issue on
Petitioner posits that under Section 14, Rule 130 of the Revised estoppel is now moot and academic.
Rules of Court, the term should be taken in its ordinary and usual
acceptation and should be taken to mean as a price which is Rule 130, Section 15. Written words control printed. - When an
"indicated" or "specified" which, if accepted, gives rise to a meeting instrument consists partly of written words and partly of a printed
of minds. This was the same construction adopted by the trial court, form, and the two are inconsistent, the former controls the latter.
viz.:
RATIONALE OF THE RULE
Going to defendant’s main defense that P21 Million was a
"suggested indicative price" – we have to find out exactly what The rationale for this rule is that the written words are the latest
"indicative" means. Webster Comprehensive Dictionary, expression of the will of the parties (DE LOS SANTOS vs. VIBAR, G.R.
International Edition, gives us a graphic meaning that everybody can No. 150931, July 16, 2008).
understand, when it says that "to indicate" is [t]o point out; direct
attention[;] to indicate the correct page[.] "Indicative" is merely the SALUDO, JR. vs. COURT OF APPEALS
adjective of the verb to indicate. x x x when the price of P21 [M]illion G.R. No. 95536, March 23, 1992
was indicated – then it becomes the "indicative" price – the correct
price, no ifs[,] no buts. We do not agree. Indubitably, that private respondent can use substitute aircraft even
without notice and without the assumption of any obligation
Under the same section and rule invoked by petitioner, the terms of whatsoever to carry the goods on any specified aircraft is clearly
a writing are presumed to have been used in their primary and sanctioned by the contract of carriage as specifically provided for
general acceptation, but evidence is admissible to show that they under the conditions thereof.
have a local, technical, or otherwise peculiar signification, and were
so used and understood in the particular instance, in which case the Petitioners' invocation of the interpretative rule in the Rules of Court
agreement must be construed accordingly. that written words control printed words in documents, to bolster
their assertion that the typewritten provisions regarding the routing
The reliance of the trial court in the Webster definition of the term and flight schedule prevail over the printed conditions, is tenuous.
"indicative," as also adopted by petitioner, is misplaced. The Said rule may be considered only when there is inconsistency
transaction at bar involves the sale of an asset under a privatization between the written and printed words of the contract.
scheme which attaches a peculiar meaning or signification to the

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LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

As previously stated, we find no ambiguity in the contract subject of RELATED PROVISION


this case that would call for the application of said rule. In any event,
the contract has provided for such a situation by explicitly stating Article 1377 of the Civil Code provides:
that the above condition remains effective "notwithstanding that
the same (fixed time for completion of carriage, specified aircraft, or ART. 1377. The interpretation of obscure words or stipulations in a
any particular route or schedule) may be stated on the face hereof." contract shall not favor the party who caused the obscurity.

CASES TO READ: CASES TO READ:

DE LOS SANTOS vs. VIBAR ASTURIAS SUGAR CENTRAL vs. THE PURE CANE MOLASSES CO.
G.R. No. 150931, July 16, 2008 57 Phil. 519

JARQUE vs. SMITH, BELL AND CO. ENRIQUEZ vs. A.S. WATSON & CO. LTD.
G.R. No. L-32986, November 11, 1930 G.R. No. L-7180, March 30, 1912

GUIDE QUESTIONS: HORRIGAN vs. TROIKA COMMERCIAL


G.R. No. 148411, November 29, 2005
1. In Jarque, how did the Supreme Court apply the rule that
written words control the printed? GUIDE QUESTIONS:
2. In Vibar, what printed and written words were inconsistent?
3. Still in Vibar, what fact or facts did the Supreme Court consider 1. How did the Supreme Court interpret the term “obras” in
in determining whether the petitioner De Los Santos was a Enriquez? What older incarnations of present rules of
guarantor of De Leon’s debt? interpretation did the Supreme Court use to aid its
interpretation?
Rule 130, Section 16. Experts and interpreters to be used in 2. Explain the ambiguity that the Supreme Court interpreted in
explaining certain writings. - When the characters in which an Horrigan.
instrument is written are difficult to be deciphered, or the language 3. Still in Horrigan, how did the Supreme Court apply Rule 130,
is not understood by the court, the evidence of persons skilled in Section 17 and Article 1377 of the Civil Code?
deciphering the characters, or who understand the language, is
admissible to declare the characters or the meaning of the language. Rule 130, Section 18. Construction in favor of natural right. - When
an instrument is equally susceptible of two interpretations, one in
DECIPHERING CHARACTERS AND UNDERSTANDING OBSCURE favor of natural right and the other against it, the former is to be
LANGUAGE adopted.

Although English is the official language of the Philippine Judiciary, it A natural right is one that exists by virtue of natural law. This rule is
cannot be denied that our country is a hodge-podge of cultures and usually applicable to waivers and renunciations.
ethnicities with their own dialects or languages and sometimes
contracts are written in such native dialects or languages. In such Rule 130, Section 19. Interpretation according to usage. - An
cases, the law allows the introduction of evidence, generally instrument may be construed according to usage, in order to
testimonial, to translate the language with which the tribunal is not determine its true character.
familiar. If a party is not satisfied or doubts the veracity of the
translation, he may raise the same during trial, on cross-examination Dean Inigo’s example relates to a bill of lading. A bill of lading
or even present his own expert or interpreter to rebut the same. operates both as a receipt and as a contract. It is a receipt for the
goods shipped and a contract to transport and deliver the same as
Rule 130, Section 17. Of two constructions, which preferred. - When therein stipulated. As a receipt, it recites the date and place of
the terms of an agreement have been intended in a different sense shipment, describes the goods as to quantity, weight, dimensions,
by the different parties to it, that sense is to prevail against either identification marks and condition, quality, and value.
party in which he supposed the other understood it, and when
different constructions of a provision are otherwise equally proper, As a contract, it names the contracting parties, which include the
that is to be taken which is the most favorable to the party in whose consignee, fixes the route, destination, and freight rate or charges,
favor the provision was made. and stipulates the rights and obligations assumed by the parties
(PHOENIX ASSURANCE CO., LTD. vs. UNITED STATES LINES, G.R. No.
DIFFERENT INTERPRETATIONS L-24033, February 22, 1968). Thus, a bill of lading should be
interpreted according to these usages.
This covers a situation where there are different interpretations
given by as many parties to one single document. The prevailing PROVISIONS OF THE CIVIL CODE ON THE INTERPRETATION OF
interpretation will be determined according to the following rules: CONTRACTS

1. The interpretation which the other party believed and used will Art. 1370. If the terms of a contract are clear and leave no doubt
prevail; upon the intention of the contracting parties, the literal meaning of
2. When both constructions are equally proper, that its stipulations shall control.
interpretation which is most favorable to the party for whose
benefit the provision was made in the first place will prevail.

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LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

If the words appear to be contrary to the evident intention of the evidence. Generally, therefore, documentary evidence prevails over
parties, the latter shall prevail over the former. testimonial evidence.

Art. 1371. In order to judge the intention of the contracting parties, However, despite the testimonial evidence being the weakest in our
their contemporaneous and subsequent acts shall be principally judicial system in terms of hierarchy, it is important because all
considered. types of evidence must, in a sense, be sponsored by a witness.
Without a witness, no evidence can ever be authenticated. The
Art. 1372. However general the terms of a contract may be, they reason is simple. Being inanimate, a document or an object cannot
shall not be understood to comprehend things that are distinct and speak for itself.
cases that are different from those upon which the parties intended
to agree. Recall that competent evidence means evidence that is not excluded
by the law or rules. In other words, it refers to the eligibility of an
Art. 1373. If some stipulation of any contract should admit of several evidence to be admitted by the court. When applied to a witness,
meanings, it shall be understood as bearing that import which is competence means that the witness is qualified to take the stand
most adequate to render it effectual. and testify. It means that he is fit or eligible to testify on a particular
matter in a judicial proceeding.
Art. 1374. The various stipulations of a contract shall be interpreted
together, attributing to the doubtful ones that sense which may Presumption in favor of competence of a witness
result from all of them taken jointly.
As a general rule, a person who takes the stand as a witness is
Art. 1375. Words which may have different significations shall be presumed to be qualified to testify. A party who desires to question
understood in that which is most in keeping with the nature and the competence of a witness must do so by making an objection as
object of the contract. soon as the facts tending to show incompetency are apparent.

Art. 1376. The usage or custom of the place shall be borne in mind in QUALIFICATION OF A WITNESS
the interpretation of the ambiguities of a contract, and shall fill the
omission of stipulations which are ordinarily established. Rule 130, Section 20. Witnesses; their qualifications. — Except as
provided in the next succeeding section, all persons who can
Art. 1377. The interpretation of obscure words or stipulations in a perceive, and perceiving, can make their known perception to others,
contract shall not favor the party who caused the obscurity. may be witnesses.

Art. 1378. When it is absolutely impossible to settle doubts by the Religious or political belief, interest in the outcome of the case, or
rules established in the preceding articles, and the doubts refer to conviction of a crime unless otherwise provided by law, shall not be
incidental circumstances of a gratuitous contract, the least ground for disqualification.
transmission of rights and interests shall prevail. If the contract is
onerous, the doubt shall be settled in favor of the greatest Basic qualifications of a witness
reciprocity of interests.
1. Can perceive;
If the doubts are cast upon the principal object of the contract in 2. In perceiving, can make known his perception to others;
such a way that it cannot be known what may have been the 3. He must take either an oath or an affirmation; and (Section 1,
intention or will of the parties, the contract shall be null and void. Rule 132)
4. He must not possess any of the disqualifications imposed by
Art. 1379. The principles of interpretation stated in Rule 123 of the law or the Rules.
Rules of Court shall likewise be observed in the construction of
contracts. Ability to perceive (Capacity of Perception)

TESTIMONIAL EVIDENCE A witness must be able to perceive an event. Corollary to this


capacity to perceive is the requirement that the witness must have
Testimonial or oral evidence is evidence elicited from the mouth of a personal knowledge of the facts surrounding the subject matter of
witness as distinguished from real and documentary evidence. his testimony. Without this personal knowledge, the witness lacks
the competence to testify.
It is sometimes called viva voce evidence which literally means
“living voice” or by word of mouth. In this kind of evidence, a human Ability to make known his perception to others
being is called to the stand, is asked questions, and answers the
questions asked of him. The person who gives the testimony is This ability involves two important factors:
called a “witness”.
1. Capacity of Recollection
In the hierarchy of evidence, it is considered the weakest because it 2. Capacity of Communication
is the most prone to fabrication.
PEOPLE vs. TUANGCO
GSIS vs. COURT OF APPEALS
The Supreme Court discussed the competence of deaf-mute
Testimonial evidence is easy of fabrication and there is very little witnesses. Deaf-mutes are competent witnesses where they:
room for choice between testimonial evidence and documentary

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(1) Can understand and appreciate the sanctity of an oath; not disqualified by the Rules of Court on that ground alone. The
(2) Can comprehend facts they are going to testify on; and Supreme Court held that it should not to be lightly supposed that
(3) Can communicate their ideas through a qualified interpreter. relatives would callously violate their conscience, e.g. in a case of
murder, to avenge the death of their loved one by blaming it on
Oath or affirmation persons whom they believe to be innocent.

The willingness to take an oath or affirmation is an essential Atty JZE: Again, with respect to admissibility, it is okay. But with
qualification of a witness. No court would allow the testimony of respect to credibility, not necessarily. It depends on the weight given
someone who desires to testify but refuses to swear or make an by the court.
affirmation.
Conviction of a crime (unless otherwise provided by law)
The oath of a witness signifies that he is swearing to the Creator “to
tell the truth, the whole truth, and nothing but the truth, so help me Mere pendency of a criminal case does not disqualify a witness from
God” and that if he does not, he will later on answer for all the lies testifying. Moreover, in case of conviction, a convict will not be
he is guilty of (perjury or false testimony). stripped of his ability to perceive and to communicate his perception
to others just because he is convicted.
What if the witness does not believe in God, in that he cannot, in
good conscience, utter the words “so help me God”? That is when PEOPLE vs. TANEO (1993)
an affirmation comes into play.
The fact that the witnesses have been convicted does not affect
In affirmation, the witness affirms by uttering the statement “I their believability. In the absence of evidence to show any reason or
hereby affirm that everything I am going to testify on is the truth, motive why witnesses for the prosecution should have testified
the whole truth, and nothing but the truth.” falsely, the logical conclusion is that no improper motive existed,
and that their testimony is worthy of full faith and credit.
The law, therefore, does not distinguish between a witness who
believes in God and a witness who is an atheist. PEOPLE vs. DE LEON (1995)
Competence vs. Credibility of a witness An accused is being prosecuted for murder and the witness for the
prosecution is also a murderer. The defense questions the credibility
Competency of a witness has reference to the basic qualifications of of the witness-murderer. The defense counsel also raises the fact
a witness as his capacity to perceive and communicate his that his client is merely charged with murder and is pending
perception to others. It also includes the absence of any of the investigation but the witness who will testify against the accused has
disqualifications imposed upon a witness. already been convicted of murder, thereby creating a doubt as to his
qualification as a witness. Is the defense counsel correct?
Credibility of a witness refers to the believability of a witness and
has nothing to do with the law or the rules. It refers to the weight No. Clearly, the mere pendency of a criminal case against a person
and trustworthiness or reliability of the testimony. does not disqualify him from becoming a witness. As a matter of
fact, conviction of a crime does not disqualify such person from
In deciding the competence of a witness, the court will not inquire being presented as a witness unless otherwise provided by law.
into the trustworthiness of a witness. Accordingly, a prevaricating
witness or one who has given contradicting testimonies is still a
Unless otherwise provided by law
competent witness.
Art. 821, Civil Code. The following are disqualified from being
x x x Religious or political belief, interest in the outcome of the case,
witnesses to a will:
or conviction of a crime unless otherwise provided by law, shall not
(1) Any person not domiciled in the Philippines;
be ground for disqualification. x x x
(2) Those who have been convicted of falsification of a document,
perjury or false testimony.
Religious or political belief
Other examples not falling squarely with Section 20
Q: Is it not a fact that one’s religious or political belief may prejudice
another who has an adverse belief, if the former testifies against the 1. Is a party declared in default disqualified to testify as a witness?
latter? Don’t you think that the bias that it creates should be a
ground for disqualification?
CAVILI vs. FLORENDO (1987)
A: Not really. Bias is not even a basis for declaring a witness
FACTS: A filed a complaint against B and C. B failed to file an
incompetent to testify. (US vs. Pachecho) And besides, a fabricated
answer and so, he was subsequently declared in default after A's
testimony can be revealed by a skillful cross-examination.
motion. However, C, who is B’s co-defendant, employed B as his
witness. A objected on the ground that B has already lost all his
Interest in the outcome of the case
standing to participate in the trial because he has been declared in
default. In effect, as A contended, B can no longer be called as a
PEOPLE vs. BONIAO (1993) witness.

Relationship does not by itself preclude the trier of facts to believe ISSUE: Is a party declared in default disqualified to testify as a
testimony or to impair credibility of the witnesses. Witnesses are witness?
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1. The person must be incapable of intelligently making known his


HELD: No. There is no provision of the Rules disqualifying parties perception to others; and
declared in default from taking the witness stand for non- 2. His incapability must exist at the time of his production for
disqualified parties. The law does not provide default as a examination.
disqualification. The specific enumeration of disqualified witnesses
excludes the operation of causes of disability other than those Section 21 (a) establishes the rule that the mental incapacity of a
mentioned in the Rules. It is a maxim of recognized utility and merit witness at the time of his perception of the events subject of the
in the construction of statutes that an express exception, testimony does not affect his competency as long as he is
exemption, or saving clause excludes other exceptions. competent at the time he is produced for examination to make
known his perception to others.
Rationale: As opposed to a party litigant, a witness is merely a
beholder, a spectator or onlooker, called upon to testify to what he The test is simple: Is the mental condition of the proposed witness
has seen, heard, or observed. As such, he takes no active part in the at the time he is called to testify is such that he is incapable of
contest of rights between the parties. Cast in the cited role of intelligently making known his perception to others? The answer to
witness, a party in default cannot be considered as "a part in the this question will determine whether or not a person is a mentally
trial." He remains suffering the effects of an order of default. competent witness.

2. Is drunkenness a ground to disqualify a witness? No. Examples:

PEOPLE vs. MELENDRES (2003) An insane person cannot be called to testify, as a general rule,
because he has a different perception of reality. However, by way of
As to the alleged mental derangement of Rodrigo, it is true that exception, he may be called to testify during his lucid interval.
during his testimony in open court on December 15, 1993, he was
uncooperative, defiant and even disrespectful to the court. The trial A mental retardate is not per se disqualified from being a witness,
court even cited him for direct contempt and ordered his because a mental retardate still has the ability to make known his
incarceration. However, it appeared from the order of the trial court perception to others. A mental retardate is not, by reason of such
that Rodrigo's defiance at that time was not a result of his alleged handicap alone, disqualified from testifying in court.
mental incapacity but because he was drunk. Moreover, while the
prosecution admitted that Rodrigo has experienced "some mental One who has been diagnosed with poor memory is likewise not
shock sometime ago", no evidence was presented by the defense to disqualified as a witness unless his condition affects his ability to
impeach him on ground of incompetence. make known his perception to others.

On the other hand, a review of the transcript of stenographic notes Immaturity


taken during the four days that Rodrigo testified and underwent
examination on the witness stand reveals that, except for the To be disqualified as a witness by reason of immaturity, the
incident on December 15, 1993, he is responsive to the questions following must concur:
propounded and was able to convey sufficiently intelligent answers.
1. The mental maturity of the witness must render him incapable
Under Section 20, Rule 130 of the Revised Rules of Court, all persons
of perceiving the facts respecting which he is examined.
who can perceive, and perceiving, can make known their perception
to others, may be witnesses. 2. He is incapable of relating his perception truthfully.

Note that in disqualification by reason of mental incapacity under


Atty JZE: What you need to remember here is that the mere fact that
Section 21(a), the incompetence of the witness must exist, not at
the witness is drunk does not necessarily result to his disqualification.
the time of his perception of the facts, but at the time he is
A witness only needs to be responsive to the questions and he should
produced for examination, and consists in his inability to intelligently
be able to give sufficiently intelligent answers.
make known what he has perceived.
Disqualification by reason of mental incapacity or immaturity On the other hand, in disqualification by reason of immaturity, the
incompetence of the witness must occur at the time he perceives
Rule 130, Section 21. Disqualification by reason of mental the event including his incapability to relate his perceptions
incapacity or immaturity. — The following persons cannot be truthfully.
witnesses:
(a) Those whose mental condition, at the time of their production for PEOPLE vs. GALAS (1996)
examination, is such that they are incapable of intelligently making
known their perception to others; All persons who can perceive, and perceiving, can make their known
(b) Children whose mental maturity is such as to render them perception to others, may be witnesses. Insofar as child witnesses
incapable of perceiving the facts respecting which they are examined are concerned, only those whose mental maturity is such as to
and of relating them truthfully. render them incapable of perceiving the facts respecting which they
are examined and of relating them truthfully are disqualified.
Mental incapacity
Therefore, any child, regardless of age, can be a competent witness
To be disqualified as a witness by reason of mental incapacity, the if he meets the following criteria:
following must concur:
1. Capacity of observation
2. Capacity of recollection

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3. Capacity of communication
Furthermore, Section 22 requires not only a valid marriage but also
The rule on disqualification by reason of immaturity must, however, the existence of such valid marriage at the moment the witness-
be construed in relation to the Rule on Examination of a Child spouse gives the testimony. So, it does not matter if the facts subject
Witness. of the testimony occurred or came to the knowledge of the witness-
spouse before the marriage. The affected spouse may still invoke
Child Witness the rule by objecting to the testimony as long as it is offered during
the marriage.
A child witness is any person who, at the time of giving testimony, is
below the age of eighteen (18) years. Hence, the rule does not prohibit a testimony for or against the
other after the marriage is dissolved. One may now testify for or
Presumption in favor of competence of a child witness against the other despite an objection interposed by the latter
because there is no more marriage to speak of.
Section 6. Competency. – Every child is presumed qualified to be a
witness. However, the court shall conduct a competency examination Illustration: Before the marriage of W to H, she witnessed the
of a child, motu proprio or on motion of a party, when it finds that murder of X by H but she never reported what she witnessed to the
substantial doubt exists regarding the ability of the child to perceive, authorities. A year after the murder, H and W married. Barely six
remember, communicate, distinguish truth from falsehood, or months after the marriage, W became a battered wife and to get
appreciate the duty to tell the truth in court. (Rule on Examination of even with H, she decided to report the murder to the police.
a Child Witness)
Q: May she testify against H over the latter’s objection even if the
murder took place before the marriage?
MARITAL DISQUALIFICATION RULE (SPOUSAL IMMUNITY)
A: She cannot testify over the objection of H. The situation is
Rule 130, Section 22. Disqualification by reason of marriage. -
covered by the marital disqualification rule.
During their marriage, neither the husband nor the wife may testify
for or against the other without the consent of the affected spouse,
Q: Suppose a year after the marriage, the marriage is annulled, may
except in a civil case by one against the other, or in a criminal case
W now testify despite the objection of H?
for a crime committed by one against the other or the latter's direct
descendants or ascendants.
A: She can now testify after the marriage is annulled. The
prohibition no longer applies since the testimony is to be offered
The rule prohibiting testimony by one spouse against the other is
after, not during the marriage.
based on society’s intent to preserve the marriage relations and
promote domestic peace. This rule is also intended to discourage
Coverage of the testimony
the commission of perjury.
The testimony covered by the marital disqualification rule not only
PEOPLE vs. FRANCISCO (1947) consists of utterances but also the production of documents.
The specific reasons for the marital disqualification rule are as
Witness-spouse need not be a party to the case
follows:
The rule applies whether or not the witness-spouse is a party to the
1. There is identity of interests between husband and wife;
case but the other spouse must be a party.
2. If one were to testify for or against the other, there is a
consequent danger of perjury; Can the marital disqualification rule be waived?
3. The policy of the law is to guard the security and confidences of
private life, even at the risk of an occasional failure of justice, and to
Yes. The testimony is prohibited only over the objection of the
prevent domestic disunion and unhappiness; and
affected spouse or the spouse against whom the testimony is
4. Where there is want of domestic tranquility, there is danger of offered. It goes without saying that the testimony is admissible
punishing one spouse through the hostile testimony of the other. where no objection is interposed by the spouse who has the right to
invoke the prohibition. In other words, the benefit of the rule may
Adverse or favorable testimony covered by the Rule be waived and it may be done so impliedly or expressly.

The marital disqualification rule forbids the husband or the wife to Exceptions to the marital disqualification rule
testify for or against the other without the consent of the affected
spouses, except in those cases authorized by the rule. The 1. in a civil case by one against the other,
prohibition extends not only to a testimony adverse to the spouse 2. or in a criminal case for a crime committed by one against the
but also to a testimony in favor of the spouse. It also extends to both other, or the latter's direct descendants or ascendants
criminal and civil cases because the rule does not distinguish.
Note that in a criminal case, the exception does not cover a crime
Valid marriage is essential committed against the other spouse’s collateral relatives. This is only
limited to direct descendants or ascendants.
In order that the husband or wife may claim the privilege, it is
essential that they be validly married. The rule, therefore, does not May an estranged spouse testify against the other?
cover common-law spouses and illicit cohabitation.

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ALVAREZ vs. RAMIREZ (2005) August 26, 2016

FACTS: Susan Ramirez (respondent) is the complainant in a criminal SURVIVORSHIP DISQUALIFICATION RULE
case for arson of her house against the accused Maximo Alvarez
(petitioner). Maximo is the estranged husband of Esperanza Alvarez, Rule 130, Section 23. Disqualification by reason of death or insanity
the sister of the respondent. At the time of the alleged arson of adverse party. – Parties or assignors of parties to a case, or
committed by Maximo, Esperanza was living with her sister. persons in whose behalf a case if prosecuted, against an executor or
administrator or other representative of a deceased person, or
During trial, Esperanza was called to the witness stand to testify against a person of unsound mind, upon a claim or demand against
against her husband. Petitioner and his counsel raised no objection. the estate of such deceased person or against such person of
In the course of Esperanza’s direct testimony against Maximo, the unsound mind, cannot testify as to any matter of fact occurring
latter showed “uncontrolled emotions”, prompting the trial judge to before the death of such deceased person or before such person
suspend the proceedings. became of unsound mind.

Subsequently, before the continuation of the testimony of his Also called:


estranged wife, petitioner, through counsel, filed a motion to
disqualify Esperanza from testifying against him. 1. The Dead Man’s Statute [This rule is not a rule of
procedural law, rather it is a rule of substantive law prior
ISSUE: May an estranged spouse testify against the other spouse? to the promulgation of the Rules of Court. This is actually a
product of statute, not a product of rule-making by the
HELD: Yes. The act of Maximo in setting fire to the house of his SC.]
sister-in-law Susan Ramirez, knowing fully well that his wife was 2. Survivorship Disqualification Rule [This is the more
there, and in fact with the alleged intent of injuring the latter, is an appropriate appellation because that is what the rule
act totally alien to the harmony and confidences of marital relation really seeks—to disqualify a survivor.]
which the disqualification primarily seeks to protect. The criminal act 3. Surviving Parties Rule
complained of had the effect of directly and vitally impairing the
conjugal relation. It underscored the fact that the marital and Review: Parol Evidence Rule
domestic relations between her and the accused-husband have
become so strained that there is no more harmony, peace or Rule 130, Section 9. Evidence of written agreements. – When the
tranquillity to be preserved. terms of an agreement have been reduced to writing, it is considered
as containing all the terms agreed upon and there can be, between
The Supreme Court has held that in such a case, identity of interests the parties and their successors in interest, no evidence of such terms
is non-existent. In such a situation, the security and confidences of other than the contents of the written agreement.
private life which the law aims to protect are nothing but ideals
which through their absence, merely leave a void in the unhappy However, a party may present evidence to modify, explain or
home. Thus, there is no longer any reason to apply the Marital add to the terms of the written agreement if he puts in issue in his
Disqualification Rule. pleading: xxx

It should be stressed that as shown by the records, prior to the The term “agreement” includes wills.
commission of the offense, the relationship between petitioner and
his wife was already strained. In fact, they were separated de facto Situation that can be covered by the PER:
almost six months before the incident. Indeed, the evidence and
facts presented reveal that the preservation of the marriage  In Gerald’s will, there is a bequest of P200,000 to Matteo.
between petitioner and Esperanza is no longer an interest the State During the probate of the will, Matteo claimed that Gerald
aims to protect. told him that, in the event of Gerald’s death, Matteo will get
P2 million. [The provision in the will gives a gift of P200,000
Atty JZE: If we are to apply the marital disqualification rule strictly, but there is information coming allegedly from the deceased
the prohibition would cover the testimony of an estranged spouse himself that Matteo will be receiving P2 million, not
against the other because a separation de facto does not sever the P200,000.]
marriage bonds and the spouses remain legally married to each  Matteo cannot prove by extrinsic evidence that the bequest
other. A testimony under such a situation would still technically be a was P2 million and not P200,000. This is not allowed under
“testimony during their marriage.” the PER. Otherwise, there will be a lot of spurious claims
against the estate of a deceased person. [And if you recall
However, in this case, the literal construction of the rule has been our discussion regarding PER, you cannot testify in court
rejected by the Supreme Court because of the strained relations about facts that are not found in an agreement, in this case a
between the spouses. Where the marital and domestic relations are will, if the effect of such testimony is to change, modify or
so strained that there is no more harmony to be preserved nor peace add to the testamentary dispositions. Because If the rule was
and tranquility which may be disturbed, the reason based upon such otherwise, I can simply go to any case or estate’s
harmony and tranquility fails. Thus, the marital disqualification rule executor/administrator or any case for probate of the will
will not apply. that I have been promised by the testator a certain bequest
of whatever amount of money or a particular type of
property.]

Why is the Rule applied to wills?

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 The dangers sought to be avoided by the requirement of the  The rule applies only to a civil case or a special proceeding
rule is present in the making of wills and are deemed to be [with particular reference to the death of a person].
more prevalent inasmuch as the maker of a will, the  Example of special proceeding that has some implications:
decedent, can no longer object to attempts to vary his 1. where the estate of a deceased person is to be
testamentary intent as his voice is already silenced by death. settled
 [Based on decisions by the SC, the reason behind the 2. if there is a will, cases for the probate of a will, or
enactment of the PER would be the fact that his lips are 3. in petitions for guardianship.
already sealed by the death. You cannot therefore contradict  The rule not only covers instances where the contracting
what remains of his testamentary dispositions. There’s party is dead but also covers instances where the contracting
phrase “sealing of the lips” or “his voice is already silenced by party becomes of unsound mind. And under Rule 92, that
death.”+ person is considered incompetent and a petition of
guardianship over his person and his property may actually
The situation under Section 23: be instituted by the interested party.
 Thus, if it is a criminal case or an administrative proceeding,
 Matteo approaches Gerald to borrow P1 million to be paid in you do not apply the rule.
2 months time. Without hesitation, Gerald gives Matteo the
amount requested without any contract, receipt or any other What is the cause of action?
written proof of the loan. [So the existence of the loan is only
known to the two parties—the debtor and the creditor.]  It is a claim against the estate of the deceased person or
Exactly a day before the agreed date of payment, Matteo insane person.[Hence, if it is a claim by the estate againsta
was electrocuted then fell of the balcony of his condo, hit by survivor, the rule will not be applicable. The rule does not
a train and then splattered to pieces. In short, he died. apply when the estate is the plaintiff. The estate has to be
 What does Gerald do? He goes to the executor of what the defendant here.]
remains of the estate of Matteo, Rayver, and tells him of the  Thus, if a person is still alive and not insane, you do not apply
debt of Matteo. Rayver, having no knowledge of the debt, the rule. The claim can be prosecuted by an ordinary
refuses to pay Gerald. Gerald is forced to sue the estate of personal action. [What about lucid intervals? The status of a
Matteo. person who is formerly insane but now is laboring under a
 During the trial, can Gerald testify and establish his claim lucid interval is in possession of his full mental faculties. He
which existed before Matteo died? No. It is forbidden under has capacity to act. So, no problem there. You do not apply
the Dead Man’s Statute. Section 23; file an ordinary civil action.]
 According to Riano: Gerald is rendered incompetent to  The rule does not apply when the action brought is not
testify as to the transaction he had with Matteo. He is “against” the estate, or not upon a claim “against” the
incompetent because of the possibility that his claim is estate.
fraudulent. There would be a high risk of paying a fraudulent
or a fictitious claim. It is Gerald who has the motive to lie. He Who is the defendant?
is the survivor. Matteo cannot lie. He is dead and cannot
answer back. He cannot disprove the claim of Gerald. 1. The executor *when there’s a will+ or administrator *when
 To level the playing field between the lucky survivor and the there’s no will, or when there is a will but does not provide
poor deceased, the rule would seal the lips of the survivor by for an executor, or when there’s an executor but he
declaring him incompetent to testify on the transaction declines the appointment] of the estate of a deceased
between him and the deceased. The rule is one that does not person; or
protect the survivor even at the risk of not paying a just and 2. Other representative of such deceased person (example:
valid claim because it is the survivor who has the stronger an heir or heirs where no executor or administrator is
reason to file a false claim. The rule is for the protection of appointed, or a surviving spouse); or
the guy who died. Hence the name, Dead Man’s Statute. *It’s 3. The person of unsound mind himself.
called that way because the rule protects the dead man, or
more particularly, his estate against spurious claims.] Note:
 It doesn’t really matter if there is a miscarriage of justice.
 Under Rule 92 and 93, a guardian can be appointed over
Object of the rule incompetent persons, including those persons suffering the
penalty of civil interdiction or who are hospitalized lepers,
 The SC had repeatedly held in not a few cases that the object prodigals [or spendthrifts], deaf and dumb who are unable to
of the rule is to: guard against the temptation to give false read and write, those who are of unsound mind, even though
testimony in regard to the transaction on the part of the they have lucid intervals, and persons not being of unsound
surviving party and thereby put the parties upon equal mind, but by reason of age, disease, weak mind, and other
terms. Its purpose is to close the lips of the plaintiff when similar causes, cannot, without outside aid, take care of
death has closed the lips of the defendant, in order to themselves and manage their property, becoming thereby an
remove from the defendant the temptation to do falsehood easy prey for deceit and exploitation.
and the possibility of fictitious claims against the deceased
(Tan vs. CA, 1998). Let’s focus on a person of unsound mind. It is quite possible that a
person becomes insane and a guardian is appointed over his person
In what case is it applied? and his property.

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 Situation: A contracted a debt with B. B gave him the money sue, you always implead the guardian. So the guardian
without anything recorded, no document whatsoever to becomes a defendant as well, by reason of the guardianship.]
prove the debt other than by word of mouth. Then, the
debtor becomes insane. What happens? How do you collect? Who is the plaintiff?
Do you wait until that person is under the lucid interval stage
before you can collect?  The plaintiff is the person who has a claim against the estate
 Section 23 provides: “…(a)gainst an executor or of the deceased or person of unsound mind.
administrator or other representative of a deceased person,  The rule will not apply where the executor or administrator is
or against a person of unsound mind…” the plaintiff.
 The rule does not seem to mention a guardian of a person of
unsound mind as defendant. [The rule does not apply to a What is prohibited?
representative of a person of unsound mind because if that
was the intention of the law, there should have been no  The testimony of the plaintiff-witness or his privies which, by
comma after “deceased person”.+ such testimony alone, would tend to establish a claim against
the deceased or insane person.
General Powers and Duties of Guardians  The subject matter of the testimony is a matter of fact
occurring before the death of such deceased person or before
Rule 96, Section 2. Guardian to pay debts of ward.— Every guardian such person became of unsound mind. [If it occurred after, it
must pay the ward's just debts out of his personal estate and the is not covered by the rule. The transaction must occur before
income of his real estate, if sufficient; if not, then out of his real and must establish a claim or demand against the estate of
estate upon obtaining an order for the sale or encumbrance thereof. the deceased person or the person of unsound mind.]
 [The plaintiff who has no proof whatsoever as to his claim
Question: Can a creditor-plaintiff testify to establish an oral claim against the deceased person or insane person goes to court
against the guardian of the insane person? In other words, is Section and wants to establish by his testimony alone that the estate
23 inapplicable in cases where the defendant is the guardian of the has a debt to him. That is what is prohibited. But can he
insane person? testify, for example, that the deceased person also owes him
moral damages? He can do that. Because this is merely
 No [a guardian can be a defendant]. The same possibility of incidental.]
making spurious claims is similarly extant even if a guardian o [Therefore, if it is not related to the main claim, he
is appointed who has the power to pay the debts of the can testify about it even if he is the plaintiff-witness-
incompetent person. survivor.]
 The purpose of guardianship is to safeguard the rights and  In other words, it is the adverse testimony of the survivor
interests of the incompetent person and the court should be that is prohibited under the Rule.
vigilant to see that the rights of such persons are properly  Thus, where the testimony of the survivor is favorable (i.e.,
protected. establishes a claim by the estate and not against it), such
 *Let’s say, a person sues an insane person. He brings the testimony is not prohibited.
insane person to court to collect the debt. Being insane, he
could simply say that the claim is true and that, in fact, it’s The Rule is very harsh.
not only for P1 million but P500 million. Because he is
insane!  So the court has to appoint a guardian. Whether  The survivorship disqualification rule raises legitimate
the guardian is appointed prior or during a case, the law questions on the justness of the rule. In trying to avoid
ought to apply still.] fictitious claims against the estate, it ignores the rights of
 [Now, a guardian is already appointed. Can the guardian now persons with legitimate claims and whose lips are sealed
ascertain whether the claim is real, without any written when the law levels the playing field so to speak.
agreement or contract whatsoever? No. What is the only
source of the guardian’s information? The insane person, EXCEPTIONS TO THE RULE (memorize):
who cannot be trusted to give the correct information. And
the law should be applicable even if it’s merely the guardian 1. Testimony of mere witnesses who are neither party
who is the defendant in a civil case.] plaintiffs, nor their assignors, nor persons in whose
behalf a case is prosecuted, nor to a nominal party, nor to
Example: Matteo approaches Gerald to borrow P1 million to be paid officers and stockholders of a plaintiff corporation.
in 2 months time. Without hesitation, Gerald gives Matteo the a. [Mere witnesses who are neither party plaintiffs
amount requested without any contract, receipt of any other nor their assignors. Example: A contracted a
written proof of the loan. Exactly a day before the agreed date for debt from B. They did not draw up a promissory
payment, Matteo became insane, his mental condition now note. A died. B cannot testify. But what if the
complementing his looks . secretary of B, an employee of the creditor,
witnessed the transaction? Will the secretary be
 What does Gerald do? He goes to the guardian of Matteo, barred from testifying? The answer is no.]
Rayver, and tells him of the debt of Matteo. Rayver, having
no knowledge of the debt, refuses to pay Gerald. Gerald is Example of Riano: The case is an action for a sum of money against
forced to sue Rayver. the decedent’s estate. The decedent is Mr. D, the debtor. The
 Rayver cannot confirm the existence or validity of the debt plaintiff is Mr. C, the creditor. Mr. C claims that Mr. D borrowed
because Matteo is of course insane. [Remember, when you P200,000 from him and that the debt has been due even before the
death of Mr. D who despite demand upon him, failed to pay. Mr. C

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calls his secretary to testify about the transaction that occurred in  Example: X sues the estate of Y for the collection of
her presence. a debt which was obtained prior to the death of Y.
The executor filed a counterclaim.
 Here, the witness is not the survivor. Thus, offering the  Effect: X can now testify against the estate of Y. Is
testimony of a so-called “disinterested witness” is not a he cannot do so, he has nothing with which to
transgression of the rule since the prohibition extends only defend against the counterclaim. It would be unfair
to the party who survives or person in whose behalf the if he cannot testify because, if his lips are sealed,
case is prosecuted. [When you talk of privity here, you’re there is virtually a confession of judgment already.
talking about financial privity. Now, if I assign the credit to
somebody else, he is a successor-in-interest. He is also SUNGA-CHAN vs. CHUA (2001)
prohibited from testifying. But if my witness is simply a
mere employee, the rule will not be applicable.] Petitioner filed a compulsory counterclaim against respondents
 Ordinary witnesses, who are not the plaintiff, assignor of in their answer before the trial court, and with the filing of their
plaintiff, or person in whose behalf the case is prosecuted counterclaim, petitioners themselves effectively removed this case
may testify (Francia vs. Hipolito, 93 Phil. 968). The dead from the ambit of the rule. When it is the executor or administrator
man’s statute does not operate to close the mouth of a or representatives of the estates that sets up the counterclaim, the
witness as to any matter of fact coming to his knowledge plaintiff, herein respondent, may testify to occurrences before the
in any other way than through personal dealings with the death of the deceased to defeat the counterclaim. Moreover, as
deceased person, or communication made by the defendant in the counterclaim, respondent is not disqualified from
deceased to the witness. testifying as to matters of facts occurring before the death of the
deceased, said action not having been brought against but by the
SANSON vs. CA estate or representatives of the deceased.
(GR 127745, 22 April 2003)
3. Where the deceased contracted with the plaintiff
Felicito filed before the RTC a petition for the settlement of the through an agent and said agent is alive and can testify,
estate of Sy (the deceased). Felicito claimed that the deceased was but the testimony of the plaintiff should be limited to
indebted to him in the amount of P603,000 and to his sister acts performed by the agent (Goñi vs. CA, GR L-27434, 23
Celedonia in the amount of P360,000. September 1986).
 [If you are acting through an agent, the agent is
Felicito, in support of the claim of his sister Celedonia, testified only an extension of the personality of the
that she has a transaction with the deceased. principal. Under the law, they’re one and the
same under certain conditions. But it is different
Celedonia, in support of the claim of her brother Felicito, under the SDR because if the agent is alive and
testified that he knew that the deceased had a transaction with his can testify, he can testify but only with respect
sister. to acts performed by the agent.]
 [How to make sense out of this? An agent is like
The administratrix objected to the testimonies upon the ground
an employee and, in cases where the plaintiff is
that the witnesses are disqualified under the Dead Man’s Statute.
the corporation, he can actually testify. Also, if
there is an agent, the transaction is no longer
Is it admissible? Yes. Sanson’s and Celedonia’s claims against
unwitnessed. There is another witness, who can
the same estate arose from separate transactions. Sanson is a third
corroborate the testimony of the plaintiff.]
party with respect to Celedonia’s claim. And Celedonia is a third
party with respect to Sanson’s claim. One is not thus disqualified to
4. Land registration cases instituted by the deceased’s
testify on the other’s transaction. [If it were Felicito testifying for his
representative, where the oppositor is considered as
own transaction with the deceased, disqualified. Same thing with
defendant or in cadastral cases where there are no
respect to the sister.]
oppositors.
 [Example: When you file a land registration case
Principle to remember
and you are the applicant. You are like a
petitioner. But there is no definite party
 The rule only applies to cases where the transaction is
defendant. In fact, because it is a proceeding in
unwitnessed. If there is any other witness, the claim can
rem, it’s supposed to be filed against the whole
be proved. [The witness, however, must be
world. When it is filed, there is already notice to
“disinterested”.+
the whole world that anybody who has a claim
over the land should come forward and present
LICHAUCO vs. ATLANTIC GULF
their claims.]
 [What happens here would be, an oppositor
When the plaintiff is a corporation, the officers or
appears and that oppositor happens to be the
stockholders thereof are not disqualified. The rule does not apply to
representatives of the deceased person, who
persons who are merely employed by such disqualified parties or
becomes the defendant. The applicant-plaintiff
assignors of parties.
here is the survivor. More so in cadastral
proceedings where it is the government itself
2. If the person or persons mentioned under the rule file/s a
who is the plaintiff and invites all those
counterclaim.
interested to make their claims known. It is the
initiative of the government.]

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 [Here, the testimony is already corroborated by


5. When there is waiver. a document and the PER and BER may be
a. By not objecting to plaintiff’s testimony on applied, as the case may be.]
prohibited matters (Marella vs. Reyes, 12 Phil. 1;
Ty vs. Ty, G.R. No. 165696) BORDALBA vs. CA (2002)
 [What to do? Just manifest your
objection for the record. But do not Since the claim of private respondents and the testimony of
cross-examine.] their witnesses in the present case is based, inter alia, on the 1947
b. By cross-examining the plaintiff on prohibited Deed of Extrajudicial Partition and other documents, and not on
matters (Tongco vs. Vianzon, 50 Phil. 698) dealings and communications with the deceased, the questioned
c. By calling witnesses to testify on prohibited testimonies were properly admitted by the trial court.
matters (Arroyo vs. Azur, 76 Phil. 493)
d. When the plaintiff’s deposition is taken by the SANSON vs. CA (2003)
representative of the estate or when counsel for
the representative cross-examined the plaintiff What the Dead Man’s Statute proscribes is the admission of
as to matters occurring during the deceased’s testimonial evidence upon a claim which arose before the death of
lifetime (Goñi vs. CA, G.R. No. L-27434) the deceased. The incompetency is confined to the giving of
e. By offering evidence to rebut the prohibited testimony. Since the separate claims of Sanson and Celedonia are
testimony supported by checks-documentary evidence, their claims can be
prosecuted on the bases of said checks.
6. If the plaintiff is the executor or administrator or other
representative of a deceased person, or the person of 10. When the defendant/s, though heirs of the deceased, are
unsound mind. sued in their personal and individual capacities.
 [The plaintiff here is no longer the survivor. But  When the defendant/s, though heirs of the
what if the defendant here, the survivor, files a deceased, are sued in their personal and
counterclaim? Analyze it on your own.] individual capacities, the plaintiff may testify
against them (Go Chi Gun vs. Co Cho, supra.)
7. When the testimony refers to fraudulent transactions
committed by the persons mentioned in the rule, 11. In actions against a partnership
provided such fraud is first established by other evidence.  Example: Matteo, a partner in RayverMaYa
 When there is an imputation of fraud against the partnership with Rayver and Richard Yap,
deceased, the plaintiff is not barred from approaches Gerald, to borrow P1 million to
testifying to such fraud (Go Chi Gun vs. Co Cho, infuse capital into the partnership to be paid in
96 Phil. 622) two months time. Without hesitation, Gerald
give Matteo the amount requested without any
8. Negative testimony, that is, testimony that a fact did not contract, receipt or any other written proof of
occur during the lifetime of the deceased. the loan. Exactly a day before the agreed date
 The plaintiffs-appellees did not testify to a fact for payment, Matteo died [this time, because of
which took place before their representative’s AIDS ].
death, but on the contrary denied that it had  Gerald approaches Rayver and Richard to collect
taken place at all, i.e. they denied that a the debt. They refuse and claimed that they have
liquidation had been made or any money no knowledge of the debt. Gerald was forced to
remitted on account of their shares which is the sue the RayverMaYa partnership. Gerald was to
ground of their claim. The rule does not apply. testify about his claim when Rayver and Richard
(Mendezona vs. Vda. De Goitia, 54 Phil. 557) objected, claiming that the Dead Man’s Statute
 [The claim relates to a negative fact, that there prohibits him from testifying.
was no liquidation that was made in the o Who is testifying? The survivor, Gerald.
partnership. According to the SC, the rule does o What is he testifying about? A claim
not apply.] based on a matter of fact which
occurred prior to the death of Matteo.
9. Testimony on the present possession by the witness of a o Who is the plaintiff? Gerald.
written document signed by the deceased because such o Who is the defendant? Not the estate
fact exists even after the death of the decedent. of Matteo. It’s the partnership.
 If the proffered testimony, while ordinarily  When a partner dies, there are two options for
barred under the survivorship disqualification the surviving partners:
rule, is actually founded on a document. If the 1. They can continue the partnership. In this
claim of plaintiff and the testimony of his case, Article 1840(3) applies. [They
witnesses are based on a contract or document, continued the partnership, which is why
and not on dealings and communications with they can be sued as a partnership. The SDR
the deceased, the testimony is admissible. This is is not applicable.]
also known as the Foundation Testimony 2. Or they can dissolve, under Article 1835.
Exception. [Take note of the example. The debt was
contracted for infusing capital into the
partnership. Regardless of whether it is a

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partnership debt or a personal debt, just In their Complaint, Garcia and Salamat claimed that when their
the same. The partnership can be sued and father Eugenio died, they entered into an agreement with their
the survivor can testify.] brother Pedro that they would alternately farm the land on a “per-
season basis”. They further claim that the landowner Makapugay
12. When the survivor’s testimony is favorable to the knew of this agreement and that, when Makapugay passed away,
deceased (Icard vs. Marasigan, 71 Phil. 419) Pedro reneged on their agreement excluding them and
 When is it favorable? When the testimony tends misrepresenting to Amanda [the successor-in-interest of
to establish a claim by the estate or to negate a Makapugay+ that he is Eugenio’s sole heir.
claim against it. [Even if you are the survivor and
you are testifying but you are actually negating a As a result, Amanda was deceived into installing Pedro as sole
claim or establishing a claim by the estate, that is agricultural lessee in their 1979 Agricultural Leasehold Contract.
allowed.] When Amanda learned of Pedro’s misrepresentation, she executed
on July 10, 1996 an Affidavit stating among others that Pedro
13. Opening Doors Exception assured her that he would not deprive Garcia and Salamat of their
 If the disable party “opens the door” by cultivatory rights.
introducing a testimony or a deposition
concerning conversations and/or events in the When Pedro passed away, his wife Dominga took over the land
presence of the deceased person. and, despite demands, continued to deprive them of their rights as
o Reason: There is, in effect, a waiver of co-lessees.
the rule. (Arroyo vs. Azur, supra.)
 [Example: I am the executor-defendant. I opened On October 24, 1996, Garcia and Salamat filed a Complaint for
the door by introducing a deposition that would nullification of leasehold and restoration of rights as agricultural
lessees against Pedro’s heirs, represented by his surviving spouse
refer to a transaction that is the basis of the
claim of the survivor. And the rule does not Dominga before the office of the Provincial Agrarian Reform
apply.] Adjudicator (PARAD).

Whose deposition contains the prohibited matters?  What is the matter of fact that occurred before the death of
Pedro? The averment in Amanda’s affidavit that Pedro
 When it is the deposition of the plaintiff. assured her that he will not deprive Garcia and Salamat of
a. If the defendant himself introduces into evidence their cultivatory rights.
the deposition of the survivor which contains the  Who are the plaintiffs/survivors? Garcia and Salamat.
matter of fact occurring before the death of the  Who is the defendant? Pedro’s surviving spouse and lawful
deceased person, he waives the protection of the successor-in-interest Dominga. [This falls under the term
rule. “other representatives of the deceased person.”+
b. If it is the plaintiff himself, the defendant can object.
 When it is the deposition of the defendant. Does the SDR apply in the case?
a. This is admissible because he is not the survivor.
b. Also, if the deposition of the defendant tends to  SC said yes. Amanda’s declaration in her affidavit covering
support the claim of the survivor, it is considered an Pedro’s alleged admission and recognition of the alternate
admission against interest. farming scheme is inadmissible for a violation of the Dead
c. Thus, it does not matter who introduces the Man’s Statute. Since Pedro is deceased and Amanda
deposition into evidence. If it is the survivor, it is declaration which pertains to the leasehold agreement
allowable being an admission against interest. If it is affects the 1996 Kasunduan sa Buwisan ng Lupa, which he
the executor, he waives the protection of the law by is assigned entered into with petitioners and which is now
himself introducing evidence on prohibited matters. the subject matter of the present case and claim against
 When it is the deposition of the deceased. Pedro’s surviving spouse and lawful successor-in-interest
a. If it is the defendant (executor/administrator) who Dominga. Such declaration cannot be admitted and used
presents the deposition, he “opens the door”. against the latter who is placed in an unfair situation by
Plaintiff may now testify on the prohibited matters. reason of her being unable to contradict or disprove such
b. If it is the plaintiff (survivor), the deposition will be declaration as a result of her husband’s xxx.
allowed because the dead man’s statute does not  [The outcome of the case would have been different had
apply anymore under the foundation testimony Amanda been presented as a witness. Because Amanda is
exception. [It is only when the plaintiff presents his a witness to the assurance given by Pedro to the siblings.]
own testimony that it will not be allowed under  Anything wrong with the decision? Nothing much except
Section 23.] maybe the fact that the case is considered an agrarian
dispute under Section 3(d) of RA 6657.
14. Only under American Jurisprudence:If the testimony to be o Remember: Section 23 is supposedly applicable
introduced relates to any fact relating to the heirship of only to civil cases or special proceedings.
the decedent. o Agrarian dispute refers to any controversy relating
 [There is yet no case regarding this exception. to tenurial arrangements, whether leasehold
Just know that this exists.] tenancy, stewardship or otherwise, over lands
devoted to agriculture, including disputes
concerning farmworkers associations or
GARCIA vs. CAPARAS (2013)
representation of persons in negotiating, fixing,
maintaining, changing or seeing to arrange terms
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or conditions of such tenurial arrangements. [It is estate of a deceased or insane


heard by an administrative tribunal. Does it make person
it an administrative case?]
o Is an agrarian case a civil case? A civil action is one Dead Man’s Statute vs Parol Evidence Rule
by which a party sues another for the
enforcement or protection of a right, or the Dead Man’s Statute Parol Evidence Rule
prevention or redress of a wrong. [This is precisely Both Rules may entail a situation where certain evidence cannot be
that, a civil action. It fits the definition.] offered due to the death of a person

SUMMARY OF EXCEPTIONS [Under the DMS/SDR, you cannot testify as to a claim or demand
based on a matter of fact which occurred prior to the death or
1. Testimony of mere witnesses who are neither party before such person became of unsound mind.]
plaintiffs, nor their assignors, nor persons in whose behalf
a case is prosecuted, nor to a nominal party, nor to officers [In PER, testimony that tends to add or modify testamentary
and stockholders of a plaintiff corporation dispositions.]
2. If the person or persons mentioned under the rule file/s a Prohibits testimony that tends Prohibits testimony that tends
counterclaim to establish a claim against the to add to or modify
3. Where the deceased contracted with the plaintiff through estate of a deceased person testamentary disposition
an agent and said agent is alive and can testify, but the May be invoked only by the May be invoked by the parties
testimony of the plaintiff should be limited to acts defendant (the executor or to an agreement. In the case of
performed by the agent administrator) a will, it may be invoked by the
4. Land registration cases instituted by the deceased’s executor or administrator,
representative, where the oppositor is considered as heirs, devisees, legatees, and
defendant or in cadastral cases where there are no oppositors, if any.
oppositors
5. When there is waiver Can the PER and the SDR be invoked at the same time?
6. If the plaintiff is the executor or administrator or other
representative of a deceased person, or the person of  Why not?
unsound mind  Example: In Gerald’s will, there is a bequest of P200,000 to
7. When the testimony refers to fraudulent transactions Matteo. During the probate of the will, Matteo claimed
committed by the persons mentioned in the rule, provided that Gerald told him while he was bedridden that, in the
such fraud is first established by other evidence event of Gerald’s death, Matteo will get P2 million both as
8. Negative testimony, that is, testimony that a fact did not a gift and as payment of a debt.
occur during the lifetime of the deceased  Matteo cannot prove by extrinsic evidence that the
9. Testimony on the present possession by the witness of a bequest was P2 million and not P200,000. This is not
written document signed by the deceased because such allowed under the PER.
fact exists even after the death of the decedent  Matteo cannot also testify on his claim because it violates
10. When the defendant/s, though heirs of the deceased, are
the SDR.
sued in their personal and individual capacities.
11. In actions against a partnership Revising the Codal Provision
12. When the survivor’s testimony is favorable to the
deceased
“A party to an alleged transaction and his successors-in-interest are
13. Opening Doors Exception precluded from testifying against the representative of the other
14. If the testimony to be introduced relates to any fact party who dies or becomes insane if such testimony is offered in a
relating to the heirship of the decedent (American case which tends to establish a civil claim against the estate of the
Jurisprudence) deceased or the insane party.”
Dead Man’s Statute vs. Marital Disqualification Rule
August 31, 2016
Dead Man’s Statute Marital Disqualification Rule
Only a partial disqualification A complete and absolute DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATION
as the witness is not disqualification
completely disqualified but is Rule 130, Section 24. Disqualification by reason of privileged
only prohibited from testifying [Regardless of the tenor of the communication. – The following persons cannot testify as to matters
on the matters therein testimony, you are disqualified.] learned in confidence in the following cases:
specified
(a) The husband or the wife, during or after the marriage, cannot be
[You cannot testify if your
examined without the consent of the other as to any communication
testimony tends to establish a
received in confidence by one from the other during the marriage
claim or demand against the
except in a civil case by one against the other, or in a criminal case
estate of a deceased person or
for a crime committed by one against the other or the latter's direct
a person of unsound mind.]
descendants or ascendants (Marital Privileged Communication
Applies only to a civil case or Applies to a civil or criminal case
Rule)
special proceeding over the

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(b) An attorney cannot, without the consent of his client, be PRESUMPTION: In the absence of evidence to the contrary, any
examined as to any communication made by the client to him, or his communication given by one spouse to the other is presumed
advice given thereon in the course of, or with a view to, professional confidential.
employment, nor can an attorney's secretary, stenographer, or clerk
be examined, without the consent of the client and his employer, HYPOTHETICAL PROBLEM:
concerning any fact the knowledge of which has been acquired in
such capacity (Attorney-Client Privileged Communication Rule) Spouses Maja and Ramon were deep in conversation when Ramon
confessed to Maja that he, before they got married, killed Maja’s ex-
(c) A person authorized to practice medicine, surgery or obstetrics boyfriend, Gerald.
cannot in a civil case, without the consent of the patient, be
1. Can Maja be called to testify against Ramon?
examined as to any advice or treatment given by him or any
information which he may have acquired in attending such patient in
a professional capacity, which information was necessary to enable NO. The Marital Privileged Communication Rule applies.
him to act in capacity, and which would blacken the reputation of In Fact, the Marital Disqualification Rule applies as well.
the patient (Physician-Patient Privileged Communication Rule)
2. But the crime was committed before their marriage?

(d) A minister or priest cannot, without the consent of the person It does not really matter. What matters is that the
making the confession, be examined as to any confession made to or communication was made during their marriage.
any advice given by him in his professional character in the course of Conversely, the Marital Disqualification Rule applies also
discipline enjoined by the church to which the minister or priest because they are still married.
belongs (Priest-Penitent Privileged Communication Rule)
3. What if their marriage was annulled? Can Maja testify then?
(e) A public officer cannot be examined during his term of office or
afterwards, as to communications made to him in official confidence, Under the Marital Disqualification Rule – YES, unless
when the court finds that the public interest would suffer by the Ramon consents.
disclosure (Public Officers Privileged Communication Rule)
Under the Marital Privileged Communication Rule – NO
Briefly, they are the following: because it applies during or after the marriage, unless
Ramon waives the privilege.
a. Marital Privileged Communication Rule
b. Attorney-Client Privileged Communication Rule DISTINCTIONS (Favorite source of BAR Qs)
c. Physician-Patient Privileged Communication Rule
d. Priest-Penitent Privileged Communication Rule MARITAL DISQUALIFICATION MARITAL PRIVILEGE
e. Publuc Officers Privileged Communication Rule Can be invoked only if one of the Can be claimed WON the spouse
spouses is a party to the action is a party to the action
1. MARITAL PRIVILEGED COMMUNICATION Applies only if the marriage is
Can be claimed even after the
existing at the time the
marriage has been dissolved
(a) The husband or the wife, during or after the marriage, cannot be testimony is offered
examined without the consent of the other as to any communication Applies only to confidential
Constitutes a total prohibition
received in confidence by one from the other during the marriage communications between the
against the spouse
except in a civil case by one against the other, or in a criminal case spouses
for a crime committed by one against the other or the latter's direct
descendants or ascendants. To determine what rule applies, you look at the given facts. If it
refers to a specific confidential information, you apply the Marital
REQUISITES: Privileged Communication Rule. If it refers to a general information
between the spouses, apply the Marital Disqualification Rule.
1. There was a VALID marriage;
2. The privilege is invoked with respect to a confidential HYPOTHETICAL PROBLEM:
communication between the spouses DURING the said
Suppose that, in the foregoing problem, Ramon’s confession to Maja
marriage; and
3. The spouse against whom such evidence is being offered has was overheard by their minor daughter Majess, and their nosy
housemate Bangs.
NOT given his consent to such testimony.

EXCEPTIONS: 1. Can Majess be called to testify?

Under the Marital Privileged Communication Rule – NO


1. In a civil case by one against the other; or
because Majess is still a minor.
2. In a criminal case for a crime committed by one against the
other or the latter’s direct descendants or ascendants.
What if Majess is no longer a minor? She can testify (if she
wants) but cannot be compelled to do so.
TAKE NOTE that these are the same exceptions under the Marital
Disqualification Rule.
2. What about Bangs, the nosy housemate?

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GENERAL RULE: YES. She can testify. Third persons who, against the other or the latter’s direct descendants or
without knowledge of the spouses, overhear the ascendants. A crime by the husband against the daughter
communication are NOT disqualified to testify. is a crime against the wife and directly affects or vitally
impairs the conjugal relation. (Ordonio v Daquigan)
EXCEPTION: When there is collusion and voluntary
disclosure to third party, that third party becomes an BAR QUESTION 1995:
agent of the spouses and cannot testify.
Allan and Narita were married on August 1, 1989. After 2 months,
TAKE NOTE THAT, IN THE EXAMPLE: Narita told Allan in confidence that the 10-year old Liza whom she
claimed to be her niece was actually her daughter by a certain
1. Majess can voluntarily testify under Section 25: Basilio, a married man. In 1992, Narita obtained a judicial decree of
nullity of marriage with Allan on the latter’s psychological incapacity
Rule 130, Section 25. Parental and Filial Privilege. - No person may to fulfill his marital obligations. When the decree became final, Liza
be compelled to testify against his parents, other direct ascendants, assisted by Narita, filed 10 cases of rape against Allan purportedly
children or other direct descendants. committed in 1991. During the trial, Narita was called to the witness
stand to testify as a witness against Allan who objected thereto on
2. What is prohibited under Section 25 is testimony by compulsion. the ground of marital disqualification.
It does not forestall testimony by volition.
1. As a public prosecutor, how would you meet the objection?
DOCTRINES TO REMEMBER IN MARITAL PRIVILEGED
COMMUNICATION RULE: I would ask the court to overrule the objection. Under the
marital disqualification rule, the objection to the
1. Every communication between spouses is presumed to be testimony of one spouse against the other may be invoked
confidential. only during the marriage. At the time the testimony of
Narita was offered, the marriage was already dissolved.
2. Communications made in the presence of third parties are not (Sec 22, Rule 130, Rules of Court)
confidential, unless the third person may be considered as an agent
of the spouses. 2. Suppose Narita’s testimony as offered while the decision
nullifying her marriage to Allan was pending appeal, would your
3. Communications overheard by third persons remain confidential answer be different?
as betvween the spouses, but the third person who overheard may
be called to testify. (Pp v Carlos) NO. The answer would not be different and a valid
objection may still be interposed. The marital
rd
4. If the 3 person acquired knowledge of the communication by disqualification rule may not be invoked in a criminal case
collusion and voluntary disclosure on the part of either of the for a crime committed against the direct descendant of
spouses, he thereby becomes an agent of such spouses so that the the other spouse. Here, Liza is the daughter of Narita.
privilege is claimable against him.
3. Suppose Narita died during the pendency of the appeal, and soon
5. Communications intended for transmission to 3rd persons are not after, the legal wife of Basilio sued for legal separation on sexual
confidential. (US v Antipolo) infidelity in view of Basilio’s love affair with Narita. At the trial, Allan
was called by Basilio’s wife to testify that Narita confided to him
BAR QUESTION: (Allan) during their marriage that Liza was her love child by Basilio.

XYZ, an alien, was criminally charged of promoting and facilitating As counsel for Basilio, can you validly object to the presentation of
child prostitution and other sexual abuses under RA 7610. The Allan as witness for the plaintiff? Explain.
principal witness against him was his Filipina wife, ABC. Earlier, she
had complained that XYZ’s hotel was being used as a center for sex Yes. I could validly object to the presentation of Allan as a
tourism and child trafficking. The defense counsel for XYZ objected witness on the ground that the communication of Narita
to the testimony of ABC at the trial of the child prostitution case and was a privileged communication which could be invoked
the introduction of the affidavits she executed against her husband during or after the marriage. Moreover, the testimony of
as a violation of espousal confidentiality and marital privilege rule. It Allan would be hearsay.
turned out that DEF, the minor daughter of ABC by her first husband
who was a Filipino, was molested by XYZ earlier. Thus, ABC had filed However, Riano posits that:
for legal separation from XYZ since last year.
The testimony could not be validly objected upon by
Q: May the court admit testimony and affidavits of the wife, ABC, Basilio’s counsel on the basis of the marital privileged
against her husband, XYZ, in the criminal case involving child communication rule. Basilio does not own the privilege.
prostitution? Reason. The prerogative to object to a confidential communication
between spouses is vested upon the spouses themselves,
rd
YES. The court may admit the testimony and affidavits if particularly the communicating spouse, not a 3 person.
the wife against her husband in the criminal case where it This is clear from the provision: “…..cannot be examined
involves child prostitution of the wife’s daughter. It is not without the consent of the other…” (Sec. 24, Rule 130)
covered by the marital disqualification rule. One
exception thereof is where the crime is committed by one 2. ATTORNEY-CLIENT PRIVILEGED COMMUNICATION

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KA consulted Sakee, a lawyer. He asked about Sakee’s professional


(b) An attorney cannot, without the consent of his client, be opinion as to how to import goods and bring them out from customs
examined as to any communication made by the client to him, or his without paying any taxes or dues.
advice given thereon in the course of, or with a view to, professional
employment, nor can an attorney's secretary, stenographer, or clerk 1. Assume that KA was caught smuggling goods, can Sakee be called
be examined, without the consent of the client and his employer, to testify as to what KA asked him?
concerning any fact the knowledge of which has been acquired in
such capacity YES. Sakee can be called to testify. The privilege does
NOT extend to communications where the client’s purpose
RATIONALE is the furtherance of a future intended crime or fraud, or
for the purpose of committing a crime or tort.
The policy underlying this privilege is that of encouraging open and
honest communication between clients and attorneys, which is 2. Suppose that KA, after being arrested, sought Sakee’s services as
thought to promote obedience to law and reduce the chance of lawyer to defend him in the criminal case. KA then discussed facts
illegal behavior, whether intentional or inadvertent. As such, the that can be used in his defense. Can Sakee be called to testify?
attorney-client privilege is considered as one of the strongest
privileges available under the law. NO. The discussion of the communications in confidence
with the lawyer after the crime has been committed will
REQUISITES: be privileged even though the earlier communications
were not.
1. There must be a communication made by the client to the
attorney or an advice given by the attorney to his client; SUMMARY:
2. The communication or advice must have been given in
confidence; 1. The privilege does NOT extend to communications where the
3. The communication or advice must have been given either in client’s purpose is the furtherance of a FUTURE intended crime or
the course of the professional employment or with view to fraud or for the purpose of committing a crime or a tort.
professional employment; and
4. The client has not given his consent to the attorney’s 2. Although communications made when used to further crimes are
testimony; or if the attorney’s secretary, stenographer or clerk not privileged, the discussion of the communications in confidence
is sought to be examined, that both the client and the attorney with the lawyer after the crime has been committed may still be
have not given their consent. privileged even though the earlier ones were not.

IS A PERFECTED CONTRACT REQUIRED? However, where the lawyer himself was a co-conspirator:

NO. The present rules do not require a perfected attorney-client PP vs. SANDIGANBAYAN (1997)
relationship for the privilege to exist. The communications between
the attorney and the client no longer need be in the course of an The privilege does NOT apply where the lawyer himself was a
actual professional employment. It is enough that the CONSPIRATOR in the commission of the crime of falsification which
communication or advice be “with a view to” professional he and his clients concocted and foisted upon the authorities. It is
employment. well settled that in order that a communication between a lawyer
and his client may be privileged, it must be for a LAWFUL purpose or
EMPLOYEES OF THE LAWYER ARE COVERED in furtherance lawful end. The existence of an unlawful purpose
prevents the privilege from attaching.
The statements of the client need not have been made to the
attorney in person. Those made to the attorney’s secretary, clerk or WORK-PRODUCT DOCTRINE:
stenographer for transmission to the attorney for the purpose of the
professional relationship or with a view to such relationship or the HICKMAN vs. TAYLOR (1947)
knowledge acquired by such employees in such capacity are covered
by the privilege. Like the attorney, their employer, these persons Under the Federal Rules of Procedure, the work-product doctrine
cannot be examined as to the communication made by the client or protects materials prepared in anticipation of litigation from
the advice given by the attorney without the client’s consent. discovery by opposing counsel. Thus, during the discovery stage,
oral and written statements made by the witnesses to a defendant’s
LAWYER MUST BE CONSULTED IN HIS PROFESSIONAL CAPACITY attorney cannot be produced as it is considered work-product.

Where a person consults an attorney not as a lawyer but merely as a In the Philippines, we have Rule 27:
friend, or a participant in a business transaction, the consultation
would not be one made in the course of a professional employment
Rule 27, Section 1. Motion for production or inspection; order. —
or with a view to professional employment as required by Sec 24(b) Upon motion of any party showing good cause therefor, the court in
Rule 130, Rules of Court, and if proven to be so, would not be within
which an action is pending may (a) order any party to produce and
the ambit of the privilege. permit the inspection and copying or photographing, by or on behalf
of the moving party, of any designated documents, papers, books,
HYPOTHETICAL PROBLEM: accounts, letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material to any

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matter involved in the action and which are in his possession,


custody or control, XXXX The matters communicated to the attorney are evidently not
intended to be confidential when they were made to the lawyer but
rd
With that, is the work-product doctrine exception applicable here? in the presence of 3 persons who neither stand in a position of
peculiar confidence to the client or are not agents of the attorney. If
YES but we do not have any specific work-product rule. It is the communications made by the client to his attorney were also
rd
subsumed under the very general Attorney-Client Privileged made to 3 persons, the intention of secrecy does not appear.
Communication Rule. It has once been mentioned by the SC in the
case of Fortune vs. CA, Jan. 1994 in a mere obiter. EAVESDROPPER

BAR QUESTION 2008: Under the Marital Privileged Communication Rule, 3rd persons who
overheard the communication can be permitted to testify.
A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila
Bay while helping tow another vessel, drowning 5 of the crew in the What is the rule under the Attorney-Client Privileged
resulting shipwreck. At the maritime board inquiry, the 4 survivors Communication Rule?
testified. SPS engaged Atty. Ely to defend it against potential claims
and to sue the company owning the other vessel for damages for to Philippine jurisprudence is somehow silent about this. However, it is
the tug. Ely obtained signed statements from the survivors. He also submitted that, similar to American jurisprudence, the
interviewed other persons, in some instance making memoranda. EAVESDROPPER MAY TESTIFY. This is subject of course to the usual
The heirs of the 5 victims filed an action for damages against SPS. challenge based on right to privacy (i.e., fruit of the poisonous tree).

Plaintiff counsel sent written interrogatories to Ely, asking whether LAWYER CANNOT BE DAMNED BY THE PRIVILEGE
statements of witnesses were obtained; if written, copies were to be
furnished; if oral, the exact provisions were to be set forth in detail. 1. A lawyer may circumvent the privilege if revealing would relieve
Ely refused to comply, arguing that the documents and information him of accusations of wrongdoing.
asked are privileged.
2. When the client and attorney become embroiled in a controversy
Q: Is the contention tenable? Explain. between themselves, as in an action filed for payment of attorney’s
fees or for damages against the negligence of the attorney, the
YES, considering that he was acting in his professional privilege is removed from the attorney’s lips.
capacity in bringing about the statement he obtained from
the witnesses and the memoranda he made. The notes, This rule, however, should be made to apply only where the suit is
memoranda, and writings made by the counsel in between the attorney and his client. The communication would still
pursuance of his professional duty, form part of his private be privileged where the suit is by or against a 3rd party.
and confidential files in the cases handled by him; hence
privileged. PRIVILEGE IS OWNED BY THE CLIENT AND SURVIVES HIS DEATH

COMMUNICATIONS COVERED: 1. The privilege is PERSONAL and belongs to the client. If the
client waives the privilege, no one else including the attorney
1. The privilege is NOT confined to communications regarding can invoke it.
ACTUAL PENDING cases. The communications may refer to
ANTICIPATED LITIGATIONS or may not refer to any litigation at If the client is asked on cross examination of his
all. communications to his lawyer and reveals the same, there
would be waiver of the confidentiality of the
2. The communication may be ORAL or WRITTEN. It is deemed to communication.
extend to other forms of conduct like physical demonstration
as long as they are intended to be confidential. There would also be a waiver if the client does not object
to his attorney’s testimony on the communication.
3. The communication between a client and his lawyer is not
deemed lacking in confidentiality solely because the 2. The protection of the privilege will generally survive the client’s
communication is transmitted by facsimile, cellular telephone, death. However, where there is an attack on the validity of the
or other electronic means. will, communications made to the attorney on the drawing of
the will, while confidential during the lifetime of the client are
PP vs. SANDIGANBAYAN (1997) not intended to require secrecy after his death.

The privilege is not confined to verbal or written communications EXAMPLE:


made by the client to his attorney but extends as well to information
communicated by the client to the attorney by other means. X has 2 sons, Y and Z. Before he died, his constant companion was
A, a young lady. X went to his lawyer to have his will prepared
covering an estate worth 12M. The lawyer was surprised because X
CONFIDENTIALITY
gave 8M to A and only 2M each to Y and Z. The lawyer asked why
Before the statements of the client and the advice of the attorney and X told him that A was his lovechild with his one true love AAA
be deemed as privileged, the same should have been intended to be and that Y and Z, his children with BBB, he suspected were not really
his.
confidential.

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When X died, his will was probated. Y and Z opposed on the ground FACTS: Allegedly, Cojuancgo, et al., with the assistance of ACCRA
that they were preterited and that their legitime was impaired. Law Firm, set up, through the use of the coconut levy funds, the
They claimed that, being X’s sole heirs, they are entitled to ½ each of financial and corporate framework and structures that led to the
the whole estate. establishment of UCPB, UNICOM, COCOLIFE, COCOMARK, CIC and
more than 20 other coconut levy funded corporations, including the
Can the lawyer be compelled to reveal the information he received acquisition of San Miguel Corporation. Said corporations are subject
from X about A? to investigation by the PCGG involving ill gotten wealth. ACCRA
refuses to provide information on fear that it may implicate them in
YES. There is an attack on the validity of the will. The the very activity from which legal advice was sought from them and
communication made to the lawyer on the drawing of the it may breach the fiduciary relationship of the petitioner with their
will, while confidential during the lifetime of X, is not client.
intended to require secrecy after his death. In fact, if he
reveals the information, the will becomes perfectly valid as ISSUE: WON disclosure of the client’s identity is proper in this case
it does not impair the legitime of the heirs.
HELD: NO.
SAURA, JR. vs. ATTY. AGDEPPA (2000)
GENERAL RULE: The attorney-client privilege may not be invoked to
The request for the information regarding the sale of the property refuse to divulge the identity of the client.
and to account for the proceeds is not a violation of the attorney-
client privilege. EXCEPTIONS:
1. When a strong probability exists that revealing the name would
The information requested by petitioners is not privileged. They are implicate that person in the very same activity for which he sought
only asking for the disclosure of the amount of the sale or account the lawyer’s advice;
for the proceeds. They have the right to ask for such information
since they own the property as co-heirs. Hence, the lawyer cannot 2. When disclosure would open the client to liability;
refuse to divulge such information to them and hide behind the
cloak of atty-client relationship. 3. When the name would furnish the only link that would form the
chain of testimony necessary to convict (LAST-LINK DOCTRINE)
DOES THE PRIVILEGE PRECLUDE INQUIRIES INTO THA FACT THAT
THE LAWYER WAS CONSULTED? LAST-LINK DOCTRINE

In other words, can the lawyer be asked if a person is his client? Is By compelling petitioners, not only to reveal the identity of their
the identity of the client privileged? clients, but worse, to submit to the PCGG documents substantiating
the client-lawyer relationship, as well as deeds of assignment
GENERAL RULE: An inquiry into the fact of consultation or petitioners executed in favor of its clients covering their respective
employment is NOT privileged. Even the identity of the shareholdings, the PCGG would exact from petitioners a link that
client or the lawyer is NOT privileged. would inevitably form the chain of testimony necessary to convict
the client of a crime.
EXCEPTION: Regala vs Sandiganbayan case (Atty JZE:
Read the full text of this case) Non-privileged information such as the identity of the client is
protected if the revelation of such information would necessarily
reveal the privileged information.
REGALA vs. SANDIGANBAYAN (1996)

PRINCIPLE: As a matter of public policy, a client’s identity should 3. PHYSICIAN-PATIENT PRIVILEGE


not be shrouded in mystery. Under this premise, the general rule in
our jurisdiction as well as in the US is that a lawyer may not invoke (c) A person authorized to practice medicine, surgery or obstetrics
the privilege and refuse to divulge the name or identity of the client. cannot in a civil case, without the consent of the patient, be
examined as to any advice or treatment given by him or any
Reasons: information which he may have acquired in attending such patient in
1. The court has a right to know that the client whose privileged a professional capacity, which information was necessary to enable
information is sought to be protected is flesh and blood. him to act in capacity, and which would blacken the reputation of
the patient
2. The privilege begins to exist only after the atty-client relationship
has been established. The atty-client privilege does not attach until REQUISITES:
there is a client.
a. The action in which the advice or treatment given or any
3. The privilege generally pertains to the subject matter of the information is to used is a CIVIL CASE;
relationship.
b. The RELATION of physician and patient existed between the
4. Due process considerations require that the opposing party person claiming the privilege or his legal representative and the
should, as a general rule, know his adversary. “A party suing or sued physician.
is entitled to know who is opponent is.” He cannot be obliged to
grope in the dark against unknown forces.

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c. The advice or treatment given by him or any information was It is necessary for the operation of the privilege that the physician is
acquired by the physician while PROFESSIONALLY ATTENDING acting in his “professional capacity” and that the advice or treatment
the patient; given or acquired in such capacity. The physician may be said to be
acting in a professional capacity when he attends to the patient for
d. The information was NECESSARY for the performance of his either curative or preventive treatment.
professional duty; and
Results of autopsies may not be deemed covered by the privilege
e. The disclosure of the information would tend to BLACKEN THE because autopsies are not intended for treatment.
REPUTATION of the patient.
PROFESSIONAL CAPACITY
RATIONALE
The rule does not require that the relationship between the
To encourage the patient to freely disclose all the matters which physician and the patient be a result of a contractual relationship
may aid in the diagnosis or in the treatment of a disease or an injury. like one initiated by the patient’s voluntary act. It might have been
the result of a quasi-contractual relationship as when the patient is
For this purpose, it is necessary to shield the patient from seriously ill and the physician treats him even if he is not in a
embarrassing details concerning his condition. condition to give his consent as in the situation described in Art
2167 of the Civil Code of the Philippines. (PATIENT IN EXTREMIS)
Accordingly, this privilege protects the interest of the patient. It is
designed to promote health, not truth. It encourages free disclosure Article 2167 (Civil Code). When through an accident or other cause a
in the sickroom by preventing disclosure in the courtroom. person is injured or becomes seriously ill, and he is treated or helped
while he is not in a condition to give consent to a contract, he shall
SURVIVES THE DEATH OF THE PATIENT be liable to pay for the services of the physician or other person
aiding him, unless the service has been rendered out of pure
The privilege survives the death of the patient. Death does not generosity.
permit the living to impair the deceased’s name by disclosing
communications held confidential by law. WHEN INAPPLICABLE:

GONZALES vs. CA (1998) a. Communication is not given in confidence.

FACTS: Ricardo Abad died, leaving sizable estate. His siblings, b. Communication is irrelevant to the professional employment.
including Gonzales, filed a petition for settlement of the intestate
estate of Ricardo and alleged that they were the sole heirs. This was c. Communication was made for an unlawful purpose, as when it
opposed by Honoria Empaynado, claiming that the siblings is intended for the commission or concealment of a crime.
deliberately concealed the existence of her children with Ricardo as
well as another child with another woman. d. Information was intended to be made public.

Why is this relevant? e. There was a waiver of the privilege either by provisions of
Under the law on succession, in the absence of legitimate contract or law.
descendants or ascendants, the illegitimate children shall succeed to
the entire estate of the deceased. PRIVILEGE BELONGS TO THE PATIENT

Also, if there are no children or a surviving spouse, the collateral This privilege belongs to the patient, so that it is only he who can
relatives (siblings) shall succeed to the entire estate of the deceased. claim or waive it. It is waivable expressly or impliedly. It is impliedly
waived like any other privilege rule. The waiver may be by a
In answer thereto, the siblings presented the affidavit of Dr. Arenas, contract as in medical or life insurance.
Ricardo’s phyisician, delaring that in 1935 or prior to the birth of the
supposed children, he had examined Ricardo and found him to be When the patient answers questions on cross examination, there is
infected with gonorrhea, and that the latter had become sterile as a also a waiver.
consequence thereof.
Rule 28, Section 1. When examination may be ordered. — In an
ISSUE: Should the affidavit be excluded for violation of the action in which the mental or physical condition of a party is in
Physician-Patient Privileged Communication Rule? controversy, the court in which the action is pending may in its
discretion order him to submit to a physical or mental examination
HELD: YES. Ricardo’s sterility arose when the latter contracted by a physician.
gonorrhea, a fact which most assuredly blackens his reputation. In
fact, given that society holds virility at a premium, sterility alone,
Section 2. Order for examination. — The order for examination may
without the attendant embarrassment of contracting a sexually-
be made only on motion for good cause shown and upon notice to
transmitted disease, would be sufficient to blacken the reputation of
the party to be examined and to all other parties, and shall specify
any patient. We thus hold the affidavit inadmissible in evidence,
the time, place, manner, conditions and scope of the examination
notwithstanding the death of Ricardo.
and the person or persons by whom it is to be made.
TREATMENT

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Section 3. Report of findings. — If requested by the party examined,


the party causing the examination to be made shall deliver to him a ISSUE: WON the medical records were covered by the physician-
copy of a detailed written report of the examining physician setting patient privilege
out his findings and conclusions. After such request and delivery, the
party causing the examination to be made shall be entitled upon HELD: YES. To allow, however, the disclosure during the discovery
request to receive from the party examined a like report of any procedure of the hospital records – the results of tests that the
examination, previously or thereafter made, of the same mental or physician ordered, the diagnosis of the patient’s illness, and the
physical condition. If the party examined refuses to deliver such advice or treatment he gave him – would be to allow access to
report, the court on motion and notice may make an order requiring evidence that is inadmissible without the patient’s consent.
delivery on such terms as are just, and if a physician fails or refuses Physician memorializes all these information in the patient’s
to make such a report the court may exclude his testimony if offered records. Disclosing them would be the equivalent of compelling the
at the trial. physician to testify on privileged matters he gained while dealing
with the patient, without the latter’s prior consent.
Section 4. Waiver of privilege. — By requesting and obtaining a
report of the examination so ordered or by taking the deposition of KROHN vs. CA (1994)
the examiner, the party examined waives any privilege he may have
in that action or any other involving the same controversy, regarding Non-physician testimony on a medical psychologist’s report is NOT
the testimony of every other person who has examined or may covered by the physician-patient privilege. This is hearsay.
thereafter examine him in respect of the same mental or physical
examination. 4. PRIEST-PENITENT PRIVILEGE

Under Rule 28, the court may order a party to submit to a physical (d) A minister or priest cannot, without the consent of the person
or mental examination, so long as the mental or physical condition is making the confession, be examined as to any confession made to or
in dispute. The party examined may request a report of the any advice given by him in his professional character in the course of
examination. By doing so, he waives any privilege he may have in discipline enjoined by the church to which the minister or priest
that action regarding the testimony of every other person who has belongs.
examined him in respect of the same examination.
Atty JZE: It’s only the Catholic Church that views confession as a
LIM vs. CA (1992) course of discipline of the denomination or sect to which the priest
belongs. Whether we like it or not, this is only favorable to the
This privilege does not apply when the doctor is presented as an Catholics.
expert witness and only hypothetical problems were presented to
him. The privilege does not cover expert opinion as long as the a.k.a CLERGY PRIVILEGE
witness does not testify to matters specifically referring to the
patient. Communications made by a person to a priest, rabbi, cleric, or
minister in the course of confession, or similar course of discipline
by other religious bodies, are privileged from disclosure. The
CHAN vs. CHAN (2013)
communications to clergy members must be made while clergy
members are acting in the professional capacity of a spiritual adviser
FACTS: On Feb 6, 2006, Josielene filed a petition for the declaration
and with the purpose of dispensing religious counsel, advice, solace,
of nullity of her marriage to Johnny. Josielene claimed that Johnny
or absolution.
failed to care for and support his family and that a psychiatrist
diagnosed him as mentally deficient due to incessant drinking and
PROFESSIONAL CAPACITY
excessive use of prohibited drugs.
The person making the confession holds the privilege and the priest
During the pre-trial conference, Josielene pre-marked the Philhealth
or minister hearing the confession in his professional capacity is
Claim Form that Johnny attached to his answer as proof that he was
prohibited from making a disclosure of the confession without
forcibly confined at the rehab unit of a hospital. The form carried a
consent of the person confessing. The privilege also extends to any
physician’s handwritten notes that Johnny suffered from
advice given by the minister or priest.
methamphetamic and alcoholic abuse. Josielene filed with the RTC
a request for the issuance of a subpoena duces tecum addressed to
The confession and the advice must have been made or given
Medical City, covering Johnny’s medical records when he was
pursuant to the course of discipline of the denomination or sect to
confined there.
which the minister or priest belongs. Thus, the minister or priest
must be duly ordained or consecrated by his sect.
Johnny opposed the motion, arguing that the medical records were
covered by the physician-patient privilege.
Not every communication made to a minister or priest is privileged.
The communication must be made pursuant to confessions of sins
Josielene claims that the hospital records subject of this case are not
(Wigmore). As clearly provided in the rule, the advice given as a
privileged since it is the testimonial evidence of the physician that
result of the confession must be made in the minister’s professional
may be regarded as privileged. Sec 24(c) of Rule 130 states that the
character or in his spiritual capacity.
physician cannot in a civil case without consent of the patient, be
examined regarding their professional conversation. That the
Accordingly, where the penitent discussed business arrangements
privilege does not cover the hospital records, but only the
with the priest, the privilege does NOT apply.
examination of the physician at the trial.

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5. PRIVILEGE OF STATE SECRETS


YES. Even where the injury is in aid of legislation, there are
(e) A public officer cannot be examined during his term of office or still recognized exemptions to the power of inquiry, which
afterwards, as to communications made to him in official confidence, exemptions fall under the rubric of executive privilege
when the court finds that the public interest would suffer by the (Senate of the Phils vs Ermita, April 2006).
disclosure.
OTHER PRIVILEGED COMMUNICATIONS:
REQUISITES:
1. RULES ON ELECTRONIC EVIDENCE
1. The communication must have been made to a public officer;
2. The communication was given to the public officer in official Privileged communications apply even to electronic evidence.
confidence; and Under Sec. 3, Rule 3 of Rules on Electronic Evidence, the confidential
3. The public interest would suffer by the disclosure of the character of a privileged communication is not lost solely on the
communication. ground that it is in the form of an electronic document.

2. NEWSMAN’S PRIVILEGE
BANCO FILIPINO vs. MONETARY BOARD (1986)

This privilege is intended not for the protection of the public officers Editors may not be compelled to disclose the source of published
but for the protection of public interest. Where there is no public news.
interest that would be prejudiced, this invoked rule will not be
applicable. RA 53, Section 1. Without prejudice to his liability under the civil and
criminal laws, the publisher, editor, columnist or duly accredited
The rule that a public officer cannot be examined as to reporter of any newspaper, magazine or periodical of general
communication made to him in official confidence does not apply circulation cannot be compelled to reveal the source of any news
when there is nothing to show that the public interest would suffer report or information appearing in said publication which was
by the disclosure in question. The government must establish that related in confidence to such publisher, editor or reporter x x x
public interest would suffer by the disclosure of the papers and
documents for the privilege to be invoked. 3. POLITICAL VOTE PRIVILEGE

WHEN INAPPLICABLE: Voters may not be compelled to disclose for whom they voted,
which is a constitutional privilege to a degree inasmuch as the 1987
If what is asked: Constitution itself mandates the secrecy and sanctity of the ballot.
1. is useful evidence to vindicate the innocence of an accused;
2. lessens the risk of false testimony; 4. INFORMATION CONTAINED IN TAX CENSUS RETURNS
3. is essential to the proper disposition of the litigation;
4. the benefit to be gained by a correct disposition of the litigation Under RA 2070, as amended by RA 5268, no information in the tax
was greater than any injury which could inure to the relation by register shall be published except in the form of tabulations or
a disclosure of the information. summaries having no reference to individuals.

IS THE PRIVILEGE APPLICABLE TO ALL PUBLIC OFFICERS IN Note however that the income tax returns (ITRs) are NOT
GENERAL? confidential. Section 71 of the Tax Code makes ITRs public records
and opens them to inspection upon order of the President of the
NO. The privilege only applies to communications to such officers Philippines (Dipad vs Sps Oliban, July 2012)
who have a responsibility or duty to investigate or to prevent
public wrongs, and not to officials in general. 5. BANK DEPOSITS (RA 1405)

The court, not the witness, will determine the necessity of Section 2. All deposits of whatever nature with banks or banking
regarding the communication as privileged. institutions in the Philippines including investments in bonds issued
by the Government of the Philippines, its political subdivisions and its
CONCEPT OF EXECUTIVE PRIVILEGE instrumentalities, are hereby considered as of an absolutely
confidential nature and may not be examined, inquired or looked
Certain types of information like military, diplomatic, and other into by any person, government official, bureau or office, except
national security matters may be withheld from the public. upon written permission of the depositor, or in cases of
impeachment, or upon order of a competent court in cases of bribery
HYPOTHETICAL PROBLEM: or dereliction of duty of public officials, or in cases where the money
deposited or invested is the subject matter of the litigation.
Director of Animal Husbandry Matteo received an invitation for
questioning in a hearing from the Senate of the Philippines regarding However, This Section and Section 3 were both amended by PD No.
Animal Abuse Scam. During the hearing, Matteo did not answer the 1792 issued January 16, 1981, PD 1792 was expressly repealed by
questions propounded to him by Senator Pacman, a self-confessed Sec 135 of R.A. No. 7653, approved June 14, 1993. The original
animal lover, claiming that his position entitles him to invoke the sections 2 and 3 of R.A. No.1405 are hereby reproduced for
executive privilege. reference, as follows:

Is his contention correct?

3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

"Section 2. All deposits of whatever nature with banks or banking shall not testify in any court or body regarding the matter taken up
institutions in the Philippines including investments in bonds issued at the conciliation proceedings conducted by them.
by the Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an absolutely 8. ALTERNATIVE DISPUTE RESOLUTION ACT (RA 9285)
confidential nature and may not be examined, inquired or looked
into by any person, government official, bureau or office, except Section 9(a) – Information obtained through mediation shall be
upon written per-mission of the depositor, or in cases of privileged and confidential. Sec 23 also provides for the
impeachment, or upon order of a competent court in cases of bribery confidentiality of arbitration proceedings.
or dereliction of duty of public officials. or in cases where the money
deposited or invested is the subject matter of the litigation," Arbitral records in the CIAC are also confidential.

"Section 3. It shall be unlawful for any official or employee of a 9. CHILD WITNESSES


banking institution to disclose to any person other than those
mentioned in Section two hereof any information concerning said The guardian ad litem shall not testify in any proceeding concercning
deposits." any information, statement, or opinion received from the child in
the course of serving as a guardian ad litem, unless the court finds it
The privileged nature of bank deposits has been diluted by: necessary to promote the best interest of the child (Sec 5e, Rule on
Examination of a Child Witness).
RA 9372 (Human Security Act of 2007)
10. INFORMER’S PRIVILEGE
Section 27. Judicial Authorization Required to Examine Bank
Deposits, Accounts, and Records. “ The provisions of Republic Act Informers, for the protection of their identity, cannot be compelled
No. 1405 as amended, to the contrary notwithstanding, the justices to testify by the prosecutor when their testimony would merely be
cumulative and corroborative. It is the privilege of the Government
of the Court of Appeals designated as a special court to handle anti-
not to disclose the identity of persons who furnish information of
terrorism cases after satisfying themselves of the existence of
violations of law to officers charged with the enforcement of that
probable cause in a hearing called for that purpose that (1) a person
charged with or suspected of the crime of terrorism or conspiracy to law.
commit terrorism, (2) of a judicially declared and outlawed terrorist
PARENTAL AND FILIAL PRIVILEGE
organization, association, or group of persons, and (3) of a member
of such judicially declared and outlawed organization, association, or
group of persons, may authorize in writing any police or law Rule 130, Section 25. Parental and filial privilege. — No person may
enforcement officer and the members of his/her team duly be compelled to testify against his parents, other direct ascendants,
authorized in writing by the anti-terrorism council to: (a) examine, or children or other direct descendants.
cause the examination of, the deposits, placements, trust accounts,
assets and records in a bank or financial institution; and (b) gather or The privilege does not disqualify a person from testifying against his
cause the gathering of any relevant information about such deposits, parents or children or other direct ascendants and descendants. A
placements, trust accounts, assets, and records from a bank or person may testify against his parents or children voluntarily but if
financial institution. The bank or financial institution concerned shall he refuses to do so, the rule protects him from any compulsion. He
not refuse to allow such examination or to provide the desired cannot be compelled to testify against any of the relatives
information, when so ordered by and served with the written order mentioned in the rules.
of the Court of Appeals.
UNDER THE FAMILY CODE:
RA 10168 (An act defining the crime of financing of terrorism)
Art. 215. No descendant shall be compelled, in a criminal case, to
The AMLC is hereby authorized to inquire into or examine deposits testify against his parents and grandparents, except when such
and investments with any banking institution or non-bank financial testimony is indispensable in a crime against the descendant or by
institution and their subsidiaries and affiliates without a court order. one parent against the other.

6. TRADE SECRETS NOT COVERED:

AIRPHIL vs. PENSWELL, INC., (2007) 1. Relatives by affinity


2. Brothers and sisters
The chemical composition, formulation and ingredients of 3. Aunts, uncles, nephew, nieces
respondent’s special lubricants are trade secrets within the 4. Cousins of whatever degree
contemplation of the law. 5. Other collateral relatives

Rule 27 cannot justify production of information as the same is ADOPTED CHILDREN


limited to documents or things that are not privileged in nature.
It is believed that adopted and adopter are covered by the parental
7. ART 233 OF THE LABOR CODE and filial privilege rule but only insofar as the parent and child is
concerned.
All information and statements made at conciliation proceedings
shall be treated as privileged communications and shall not be used It does NOT extend to the direct ascendants of the adopter because
as evidence in the NLRC, and the conciliators and similar officials the adoptive relation is between the adopter and the adopted only.

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LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

A plea of guilty later withdrawn, or an unaccepted offer of a plea of


The reason for this opinion is the rationale behind the privilege, guilty to lesser offense, is not admissible in evidence against the
which is to preserve the harmonious relations between parent and accused who made the plea or offer.
child which could be ruptured through testifying in court.
Furthermore, perjury may result because the parent or the child An offer to pay or the payment of medical, hospital or other
may give false testimony to protect the other. expenses occasioned by an injury is not admissible in evidence as
proof of civil or criminal liability for the injury.
LEE vs. CA (2010)
Under this Section, an offer of compromise by the accused is
FACTS: Spouses Lee and Keh entered the Philippines in 1930s as actually an implied admission of his guilt.
immigrants from China. They had 11 children. In 1948, Lee brought
from China a young woman named Tiu, supposedly to serve as Admission by declaration
housemaid. Tiu left Lee-Keh household, moved into another
property of Lee nearby, and had a relation with him. Shortly after Example: A was sued by B for a collection of a debt. In his answer, A
Keh died in 1989, the Lee-Keh children learned that Tiu’s children categorically denied having contracted any loan to B. However, prior
with Lee claimed that they, too, were children of Lee and Keh. This to the case being filed, A spoke to C and told him that he borrowed
prompted the Lee-Keh children to request the NBI to investigate the money from B to buy a car.
matter.
Q: Can C testify as to what A told him?
Tiu who invoked the filial privilege claims that she is the stepmother
of petitioner Emma Lee. Analysis: Note that the witness to be presented, C, is one who has
no personal knowledge about whether there was really a contract of
ISSUE: WON the privilege can be invoked loan between A and B. What he knows is what A told him.

HELD: NO. The privilege cannot apply to them because the rule A: Under the law, this is hearsay which is normally inadmissible.
applies only to DIRECT ascendants and descendants, a family However, under Section 26, the declaration of a party as to a
connected by a common ancestry. A stepdaughter has no common relevant fact may be given in evidence against him. Note that in the
ancestry by her stepmother. Article 965 thus provides: present case, the declaration of A to C is relevant to the fact in issue
which is the existence of debt. Thus, C may be able to testify as to
“Art 965. The direct line is either descending or ascending. The what A declared to him.
former unites the head of the family with those who descend from
him. The latter binds a person with those from whom he descend.” Omission

Consequently, Tiu can be compelled to testify against petitioner Omission means failure to act or to make a declaration when one
Emma Lee. ought to. An example is Section 32.

September 7, 2016 Rule 130, Section 32. Admission by silence. — An act or declaration
made in the presence and within the hearing or observation of a
ADMISSIONS AND CONFESSIONS party who does or says nothing when the act or declaration is such
as naturally to call for action or comment if not true, and when
Admissions can be judicial or extrajudicial. proper and possible for him to do so, may be given in evidence
against him.
A judicial admission or an admission in judicio is a deliberate, clear,
and unequivocal statement by a party about a concrete fact within The perfect example of omission is the case of Estrada vs. Desierto.
that party’s knowledge.
Q: Are all types of admissions admissible against the party thereto?
Extrajudicial admission (Section 26)
A: No. According to whether or not an admission is favorable to the
Rule 130, Section 26. Admissions of a party. — The act, declaration party making it, an admission can either be an admission per se
or omission of a party as to a relevant fact may be given in evidence (under Section 26) or a self-serving admission.
against him.
Self-serving Admission
Admission by an Act
It is an admission made by a party out of court at one time and
Rule 130, Section 27. Offer of compromise not admissible. — In civil which is favorable to the party making it. It is excluded on the same
cases, an offer of compromise is not an admission of any liability, ground as any hearsay evidence – lack of opportunity for cross-
and is not admissible in evidence against the offeror. examination by the adverse party, on the consideration that its
admission would open the door to fraud and fabrication of
In criminal cases, except those involving quasi-offenses (criminal testimony.
negligence) or those allowed by law to be compromised, an offer of
compromised by the accused may be received in evidence as an It is an admission favorable to the party making it. (Lichauco vs.
implied admission of guilt. Atlantic Gulf)

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LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

Take note that the concept of self-serving admission does not Example (actual JZE case)
include a party’s testimony as a witness in court. Why? This is
because a party’s testimony in court is sworn and affords the other JZE: You mentioned in your answer Mr. Witness, that it was not the
party the opportunity for cross-examination. plaintiff who planted the crops in the subject land. If it was not the
plaintiff, who was it then?
What is covered therefore is when a third party witness testifies in
court about the self-serving admission made by the party. Witness (Defendant): I was the one who planted it together with my
father.
Requisites of a self-serving admission
Atty Um: Objection your honor, self-serving!

1. The testimony is favorable to the declarant. Is it self-serving? If you look at the concept of a self-serving
2. It is made extrajudicially. admission in the context of whether or not it favors the party
3. It is made in anticipation of litigation. It means that you fear making the admission, then that will be serving, but is that the self-
any case that may be filed against you. That is why you do this, serving admission guarded by the law against?
you do that.
That is actually a misconception borne out of ignorance!
In anticipation of litigation
Not every testimony that is favorable to the party is considered self-
serving. If the rule were otherwise, all testimonies of party-litigants
This requisite covers evidence that is seemingly “planted”, for the
would be self-serving and therefore inadmissible because it is very
lack of a better term.
rare for a party to advocate against his own cause.
Example: A has been in default of his loan obligations to B Bank.
Sensing that B Bank is about to sue him to collect on the debt, A CLEMEÑA vs. BIEN (2006)
goes around and tells C, D, E that he had actually paid the bank.
"Self-serving evidence," perhaps owing to its descriptive
In effect, by telling C, D, and E that he had already paid the loan, he formulation, is a concept much misunderstood. Not infrequently,
is actually planting evidence. He can use their testimony to the term is employed as a weapon to devalue and discredit a party's
corroborate his defense of payment. Is that allowed? The answer of testimony favorable to his cause. That, it seems, is the sense in
course is no. Such planted evidence is not admissible, it being self- which petitioners are using it now. This is a grave error.
serving.
"Self-serving evidence" is not to be taken literally to mean any
evidence that serves its proponent's interest. The term, if used with
Take note of the effect if the admission is not self serving:
any legal sense, refers only to acts or declarations made by a party in
his own interest at some place and time out of court, and it does not
Example: A was sued by B for collection of a debt. In his answer, A include testimony that he gives as a witness in court. Evidence of
categorically denied having contracted any loan from B. However, this sort is excluded on the same ground as any hearsay evidence,
prior to the filing of the case, A spoke to C, D, and E and told them that is, lack of opportunity for cross-examination by the adverse
that he actually borrowed money from B to buy a car. party and on the consideration that its admission would open the
door to fraud and fabrication. In contrast, a party's testimony in
What is different here? He is actually advocating something that court is sworn and subject to cross-examination by the other party,
would tend to establish a claim against him rather than something and therefore, not susceptible to an objection on the ground that it
that would establish his own interest. Will that be admissible? is self-serving.
In this case, C, D, and E can all testify because the admission by A is
Another example (actual JZE case)
one that is against his interests instead of being favorable to his
cause.
JZE: The defendant testified it was his father and himself, not the
Plaintiff, who planted the crops in the subject land. What knowledge
Rationale of the inadmissibility of a self-serving admission
do you have of this, if any?
A man may be safely believed if he declares against his own
Non-party Witness: I know this because they paid me to help them
interests, but not if he advocates his interest. (Lichauco vs. Atlantic
clear the forest.
Gulf and Pacific, 84 Phil 342)
Atty. Um: Objection, Your honor! Self-Serving!
It is excluded on the same ground as any hearsay evidence, that, the
lack of opportunity for cross examination by the adverse party.
Is Atty. Um’s objection correct? No.
(National Development Compnay vs. Workmen’s Compensation
Commission)
Take note that a self-serving admission is one made by a party. It
does not apply to the testimony of a mere witness who testifies
Self-serving admissions, when admissible
based on his personal knowledge.
1. If they are made in open court;
2. Giving full opportunity to the adverse party to exercise his right In this case, the witness has no interest in the case, unless he is a co-
of cross-examination. party plantiff or a co-party defendant.

3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

Another example (actual JZE case): My client filed an action for “You have the right to remain in silent. Anything you say can and will
declaration of the nullity of marriage on the ground of mutual be used against you in a court of law.”
psychological incapacity of both my client and his wife. His wife
opposed the petition. During the trial, I presented my client as a Requisites for the admissibility of an admission
witness to testify on what constitutes about his psychological
incapacity. 1.) It must involve matters of fact and not of law.

JZE: What psychological disorder are you referring to Mr. Witness? 2.) It must be categorical and definite.

Husband: I am a sex maniac, Sir. It means that it is not susceptible to interpretation. It has
to be categorically stated. It must also specifically relate to
JZE: Would you care to elaborate? a definite fact.

Husband: Sure! I crave for sex constantly. My wife cannot satisfy me 3.) It must be knowingly and voluntarily made.
on this aspect. Sometimes, I call her to go home just so we can do it.
If she refuses, I can’t help but look for it from someone else or I just 4.) It must be adverse to the admitter’s interest.
play with myself.
It must be adverse because if not, it will be considered as a
OC: Objection, your Honor! Self-serving! self-serving admission and therefore, inadmissible.

Court: Atty. Espejo, Comment? Adverse to the admitter’s interest

JZE: Your honor, please, this is not self-serving. Counsel can cross Flight is considered a disserving act, since it is prejudicial to the
examine. Besides, testimony is self-serving only when it is favorable interest of the accused. Flight is considered as circumstantial
to the witness. Here, your Honor, he is actually advocating against evidence of his guilt. FATETUR FACINUS IS QUI JUDICUM FUGIT.
his own interest. Testimony is self-deprecating, your Honor.
However, non-flight cannot be used as evidence to prove his
Court: Objection is overruled. It is self-deprecating. You may innocence, because that will be considered as an act that is
continue. favorable to the interest of the accused.

Was the Court or JZE correct? ADMISSION CAN EITHER BE

Yes, the court was correct in overruling the objection but the ground 1.) Express - those made in a definite and unequivocal language; or
relied upon is not correct. Therefore, I am also wrong.
2.) Implied - those which may be inferred from the act, conduct,
The fact that the testimony was self-deprecating is not a proper declaration, omission, or silence of a party.
ground. It was destructive of his personality but it is favorable to his
cause because if it is to be believed by the court that he is indeed a EXAMPLES OF IMPLIED EXTRA-JUDICIAL ADMISSIONS
sex maniac, that will prove his psychological incapacity.
1. Laches
Admissions per se under Section 26
Laches is defined as the failure or neglect for an unreasonable and
An admission is any statement made by a party to a lawsuit, either unexplained length of time, to do that which by exercising due
before a court or during its pendency, which tends to support the diligence, could or should have been done earlier.
position of the other side or diminish his own position.
It is considered to be an implied admission of lack of merit of one’s
Q: An admission about a fact in issue in a case made while the case cause of action.
is pending will always be a judicial admission. True or False?
2. Flight and Concealment
A: False. It depends on where he made the admission. If he made it
Flight strongly indicates a guilty mind and betrays the existence of
in open court, or if he made it in a deposition or in a judicial
guilty conscience. It is an implied admission of guilt. (People vs.
affidavit, that is a judicial admission. But if he made it outside the
Herrera)
court, then it becomes an extra-judicial admission.
3. Silence
For example, if a husband sues his wife for divorce on the grounds of
adultery, and she states out of court that she has had affairs, her
statement is an admission. Any admission made by a party is Rule 130, Section 32. Admission by silence. — An act or declaration
admissible evidence in a court proceeding, even though it is made in the presence and within the hearing or observation of a
technically considered hearsay (which is normally inadmissible). party who does or says nothing when the act or declaration is such
as naturally to call for action or comment if not true, and when
Now cross reference this with Miranda Rights enshrined in Article 3, proper and possible for him to do so, may be given in evidence
Section 12 (1) of the Constitution: against him.

PEOPLE vs. ESPANOL (2009)

3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

A change for the better in the financial condition of a person


Appellant’s act of pleading for his sister-in-law’s forgiveness may be accused of a crime involving money, immediately or shortly after
considered as analogous to an attempt to compromise, which in the date of the crime, may be shown upon the theory that sudden
turn can be received as an implied admission of guilt under Section and unexplained possession of funds has a tendency to connect
27, Rule 130. said person to the said crime.

Another piece of evidence against appellant was his SILENCE when COMPROMISES
his wife’s nephew asked him why he killed his wife. His silence on
this accusation is deemed an admission under Section 32, Rule 130 Rule 130, Section 27. Offer of compromise not admissible. — In civil
of the Rules of Court. cases, an offer of compromise is not an admission of any liability,
and is not admissible in evidence against the offeror.
4. Offer of Compromise
In criminal cases, except those involving quasi-offenses (criminal
An offer of compromise by the accused may be received in evidence negligence) or those allowed by law to be compromised, an offer of
as an implied admission of guilt. (Section 27, Rule 130) compromise by the accused may be received in evidence as an
implied admission of guilt.
The repeated offer of one conspirator constitutes a strong indication
and an implied admission of guilt of said conspirator and the two A plea of guilty later withdrawn, or an unaccepted offer of a plea of
accused and appellants in this case. (US vs. Torres). guilty to lesser offense, is not admissible in evidence against the
accused who made the plea or offer.
5. Plea of Forgiveness
An offer to pay or the payment of medical, hospital or other
The perfect example is the case of People vs. Abadies, which is expenses occasioned by an injury is not admissible in evidence as
about a father who raped his own daughter. He sent a letter asking proof of civil or criminal liability for the injury.
for his daughter’s forgiveness.

PEOPLE vs. ABADIES (2002) The Good Samaritan Rule provides that, in both civil and criminal
cases, an offer to pay or the payment of medical, hospital, or other
A cursory reading of the relevant parts of the letter will readily show expenses occasioned by an injury is not admissible in evidence as
that accused-appellant was indeed seeking pardon for his misdeeds. proof of civil or criminal liability for the injury.
Some of the pertinent portions read as follows: "I made this letter to
ask your 'forgiveness.’ x x x Alam mo bang sobra-sobra na ang Civil Code Provisions on Compromise
pagsisisi ko sa ginawa kong iyon. x x x Parang awa mo na Ne hirap
na hirap na ako at ang lahat ay buong puso ko ng pinagsisisihan. Art. 2028. A compromise is a contract whereby the parties, by
Patawarin mo na ako anak. x x x." making reciprocal concessions, avoid a litigation or put an end to one
already commenced.
There is no iota of doubt that accused-appellant was asking
forgiveness for having committed the acts with which he now stands Art. 2034. There may be a compromise upon the civil liability arising
charged. Settled is the rule that in criminal cases, except those from an offense; but such compromise shall not extinguish the public
involving quasi-offenses or those allowed by law to be settled action for the imposition of the legal penalty.
through mutual concessions, an offer of compromise by the accused
may be received in evidence as an implied admission of guilt. Art. 2035. No compromise upon the following questions shall be
Evidently, no one would ask for forgiveness unless he had valid:
committed some wrong and a plea for forgiveness may be (1) The civil status of persons;
considered as analogous to an attempt to compromise. Under the (2) The validity of a marriage or a legal separation;
circumstances, accused-appellant’s plea of forgiveness should be (3) Any ground for legal separation;
received as an implied admission of guilt. (4) Future support;
(5) The jurisdiction of courts;
6. Offer of Marriage (6) Future legitime.

An offer of marriage during the investigation of the rape case is Under Section 27, an offer of compromise by the accused may be
considered an implied admission of guilt. (People vs. Oliquino) received in evidence as an implied admission of guilt except:

7. Withdrawal of Appeal and Acceptance of Lowered Penalty 1. in cases involving quasi-offenses (criminal negligence);
2. those allowed by law to be compromised;
8. Influence 3. Godoy Doctrine (See discussion below)

An attempt to influence witnesses, whether the influence tended Examples of cases allowed by law to be compromised
to bring forth false testimony, or to suppress evidence, is an
implied admission of the weakness of a party’s cause. 1. Sec 204, NIRC of the 1997, as amended by Republic Act No.
7646, which lays down the power of the BIR Commissioner to
9. Sudden Affluence compromise tax liability.

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LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

2. Paragraph 2 of Article 144 of the Philippine Cooperative Code


expressly provides that all unpaid assessments of previously SECOND PART. Under Rule 130, Section 34, evidence that one did or
registered cooperatives shall be the subject of compromise did not do a certain thing at one time is not admissible to prove that
settlement on terms favorable to such cooperatives. he did or did not do the same or a similar thing at another time; but
it may be received to prove a specific intent or knowledge, identity,
3. Criminal cases which are mandatory subject of arbitration and plan, system, scheme, habit, custom, or usage and the like.
mediation.
FIRST PART OF RES INTER ALIOS ACTA RULE
Godoy Doctrine
The rights of a party cannot be prejudiced by an act, declaration, or
PEOPLE vs. GODOY (1995) omission of another. A person’s admission is binding upon himself
but his admission is binding upon himself but his admission cannot
It has long been held that in cases of public crimes, the accused is bind another. Otherwise, it would be unfair and inequitable.
permitted to show that the offer was not made under a
consciousness of guilt but merely to avoid the inconvenience of Example: A filed a case against B and C for ejectment. B and C are
imprisonment or for some other reason which would justify a claim 30-year occupants of the land which was previously unregistered
by the accused that the offer to compromise was not in truth an under the Torrens System. Suddenly, in 2015, A came to the land
admission of his guilt or an attempt to avoid the legal consequences and showed B and C his Certificate of Title and demanded that they
which would ordinarily ensue therefrom. vacate the property. In 2016, during trial, B settled with A and
executed a quitclaim stating that B has no right whatsoever over the
Atty JZE: Remember that the Godoy Doctrine is not really a direct land.
restriction but merely a limited restriction. Why? It is because of the
general rule that an offer of compromise is an implied admission of Q: Can A claim that, since B and C are similarly situated with similar
guilt. defenses, B’s quitclaim should also apply to C?

What Godoy is saying is if you made an offer, you are allowed to A: No. the right of C cannot be prejudiced by the act and declaration
plead that you made an offer not because you are guilty but because by B, applying the Res Inter Alios Acta Rule.
you want to avoid the consequences of a prolonged trial or
inconvenience of imprisonment. Q: Suppose B, in his quitclaim, also stated categorically that C’s
defenses are false and that B and C did not really possess the land
Summary: An offer of compromise is admissible as an implied for 30 years. Can that bind C?
admission of guilt. But you can rebut the presumption. That is what
Godoy is saying. IT IS ADMISSIBLE BUT REBUTTABLE. A: Again, no. By virtue of Res Inter Alios Acta Rule, C cannot be
prejudiced by the act or declaration of B. However, take note of the
PEOPLE vs. YPARRIGUIRRE (1997) effect that A can call B as his witness and ask him to testify. His
testimony is admissible, subject to cross examination by C.
An offer to compromise does not require that a criminal complaint
be first filed before the offer can be received as evidence against the EXCEPTIONS TO THE RES INTER ALIOS ACTA RULE: VICARIOUS
offeror. ADMISSIONS

This means that an offer to compromise may be made in The rights of a party may be prejudiced by the act, declaration, or
anticipation of a litigation. That is why lawyers will immediately tell omission of another when between the party making the admission
their client to settle the case before a formal complaint is filed. After and against whom it is offered, there exists a relation of:
settlement, the victim will have to sign a waiver. In that situation, if
the victim will still file a case, what you should do is file a motion to 1. partnership
dismiss and offer as evidence the waiver signed. 2. agency
3. joint interests
RES INTER ALIOS ACTA RULE 4. conspiracy or
5. privity
Rule 130, Section 28. Admission by third party. — The rights of a
VICARIOUS ADMISSIONS
party cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided.
Rule 130, Section 29. Admission by co-partner or agent. — The act
Latin Maxim: Res Inter Alios Acta Alteri Nocere Non Debet or declaration of a partner or agent of the party within the scope of
his authority and during the existence of the partnership or agency,
English Translation: Things done between strangers ought not to may be given in evidence against such party after the partnership or
injure those who are not parties to them. agency is shown by evidence other than such act or declaration. The
same rule applies to the act or declaration of a joint owner, joint
TWO PARTS OF THE RULE debtor, or other person jointly interested with the party.

FIRST PART. The rights of a party cannot be prejudiced by an act, Note that under Section 29, there are three vicarious admissions:
declaration, or omission of another. This means that statements
made or matters accomplished between two parties cannot 1. admission by a partner
prejudice a third party. (Blanza vs. Arcangel, 21 SCRA 4) 2. admission by an agent

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3. admission by a joint owner, joint debtor, or other person jointly Q: If A defaults, can C use the declaration of A in order to hold B
interested with the party. liable?

Example: A filed a case against B and C for ejectment. B and C claim A: No. The rights of B cannot be prejudiced by the act or declaration
to be co-partners or co-owners and 30-year occupants of the land of C. This is because there are no indications from the facts that he
which was previously unregistered under the Torrens system. They was able to establish the existence of the partnership by evidence
claim that they contributed money and industry in the cultivation of other than such act or declaration.
the land for 30 years. Suddenly, in 2015, A came to B and C, showed
his certificate of title, and demanded them to immediately vacate Q: What should C do?
the land. In 2016, during trial, B settled with A and executed a
quitclaim stating that B has no right whatsoever over the land. A: He must first establish by testimonial or documentary evidence
the existence of the partnership, independent of the act or
Q: Can A claim that B’s quitclaim be admitted against C? declaration of A that he and B are partners.

Atty JZE: This is similar to the previous example that I gave you under For instance, C can present documentary evidence such as an
Res Inter Alios Acta Rule. In the previous example, remember that C Articles of Partnership or contracts jointly entered by A and B as
cannot be prejudiced by the act or declaration by B. partners. C can also present the testimony of a witness other than
the declarant which establishes the partnership may be introduced.
A: This time, YES. They are co-owners or partners over the land. If C succeeds, that is the time he can now introduce into evidence
Thus, the rights of C can now be prejudiced by the act or declaration the declaration of A.
of B. The quitclaim executed by B is admissible against C. Now, they
are vicars. They stand in the place of each other. Note: The declaration alone cannot be used to establish the
partnership or agency.
RATIONALE
VILLANUEVA vs. BALAGUER (2009)
The partner or co-agent is, in legal contemplation, a MERE
EXTENSION OF THE PERSONALITY of the partner or principal and FACTS: On March 31, 1992, petitioner Francisco N. Villanueva, then
unless he acts in his own name, the partner and the principal must Assistant Manager for Operations of Intercontinental Broadcasting
comply with all the obligations which the co-partner or agent may Corporation Channel 13 (IBC-13) was dismissed from employment
have contracted within the scope of his authority. Hence, whatever on the ground of loss of confidence for purportedly selling forged
is said by a co-partner or agent to third person, during the course of certificates of performance, which are official reports certifying the
the partnership or agency and within the scope of his actual or airing of ads for the entities that placed the ads. These reflect the
apparent authority, relative to the business contemplated by the dates and times when the ads were broadcast as required by the
partnership or agency, is for legal purposes also the statement of COMELEC. Contesting his termination, petitioner filed a complaint
the co-partner or principal and is therefore, admissible against him. for illegal dismissal before the National Labor Relations Commission.

REQUISITES UNDER SECTION 29 During the pendency of the labor case, news articles about
irregularities in IBC-13 were published in several newspapers. In
1. There is an act or declaration of a partner or agent that is these news articles, respondent Virgilio P. Balaguer, then President
prejudicial to the other co-partner or principal; of IBC-13, was quoted to have said that he uncovered various
anomalies in IBC-13 during his tenure which led to the dismissal of
2. The act or declaration must have been within the scope of the an Operations Executive for selling forged certificates of
partner or agents authority; performance.

If a partner performs acts which are ultra-vires or beyond On September 25, 1992, petitioner Villanueva filed before the
the scope of his authority, then this exemption will not Regional Trial Court of Quezon City a complaint for damages against
apply. The general rule will apply that whatever he does, Balaguer, which was later amended by impleading IBC-13 as
whatever he says, it will not bind the partner and the additional defendant.
principal.
Petitioner claimed that respondents caused the publication of the
3. The act or declaration must have been made during the subject news articles which defamed him by falsely and maliciously
existence of the partnership or agency; referring to him as the IBC-13 Operations Executive who sold forged
certificates of performance.
It does not apply if made before the agency or even after
the partnership or agency is terminated. IBC-13 also denied participation in the publications, claiming that
the press statements were done solely by Balaguer without its
4. The existence of the partnership or agency must be shown by authority or sanction. IBC-13 also filed a counterclaim against
evidence other than such act or declaration. petitioner and a cross-claim against Balaguer.

Shown by evidence other than such act or declaration In its cross-claim against Balaguer, IBC stated that “The acts
complained of by the plaintiff were done solely by co-defendant
Example: A secured a loan from C. A claimed that he is obtaining the Balaguer. Balaguer resorted to these things in his attempt to stave
loan in behalf of his partnership with B. off his impending removal from IBC.”

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Villanueva therefore points to this as an admission that can be taken Accordingly, culled from the incidents and records of this case, it can
against Balaguer inasmuch as this is an admission of IBC that its own be assumed that the relationships entered between and among
agent, Balaguer, committed the libelous acts. petitioners and MBMI are no simple "joint venture agreements." As
a rule, corporations are prohibited from entering into partnership
ISSUE: Whether or not Section 29 applies. agreements; consequently, corporations enter into joint venture
agreements with other corporations or partnerships for certain
HELD: Rule 130, Section 29 does not apply. IBC-13’s cross-claim transactions in order to form "pseudo partnerships."
against Balaguer effectively created an adverse interest between
them. Hence, the admission of one defendant is not admissible Obviously, as the intricate web of "ventures" entered into by and
against his co-defendant. among petitioners and MBMI was executed to circumvent the legal
prohibition against corporations entering into partnerships, then the
relationship created should be deemed as "partnerships," and the
NARRA NICKEL MINING vs. REDMONT MINING (2014)
laws on partnership should be applied. Thus, a joint venture
FACTS: Narra Mining, Tesoro Mining, and McArthur Mining filed agreement between and among corporations may be seen as similar
to partnerships since the elements of partnership are present.
Mineral Production Sharing Agreement (MPSA) applications before
the DENR over an area in Palawan. Redmont also filed an application
Considering that the relationships found between petitioners and
for the same area and opposed the other applications on the ground
that the other applicants are disqualified as they are controlled by MBMI are considered to be partnerships, then the CA is justified in
MIBMI Resources Inc, a 100% Canadian corporation. The DENR applying Sec. 29, Rule 130 of the Rules by stating that "by entering
into a joint venture, MBMI have a joint interest" with Narra, Tesoro
granted Redmont’s application and disqualified the others.
and McArthur.
On appeal, the CA justified upholding Redmont’s contention using
the exceptions to the Res Inter Alios Acta Rule (Section 29 and 31) DOCTRINES TO REMEMBER
on the ground that corporate documents of MBMI Resources, Inc.
furnished its stockholders in their head office in Canada suggest that 1. The fact that a counter-claim was filed against the putative co-
they are conducting operations through local counterparts. partner or agent makes Section 29 inapplicable (see
VILLANUEVA vs. BALAGUER)
Petitioners question the CA’s use of the exception of Res Inter Alios
Acta or the “admission by co-partner or agent” rule and “admission 2. Section 29 is applicable to joint ventures between corporations,
by privies” under the Rules of Court in the instant case, by pointing foreign and domestic. (see NARRA vs. REDMONT)
out that statements made by MBMI should not be admitted in this
case since it is not a party to the case and that it is not a “partner” of Rule 130, Section 30. Admission by conspirator. — The act or
petitioners. declaration of a conspirator relating to the conspiracy and during its
existence, may be given in evidence against the co-conspirator after
Atty JZE: This argument is really good because if you remember, a the conspiracy is shown by evidence other than such act of
corporation cannot be a partner in a partnership. declaration.

ISSUE: Can you apply the term “partner” for a corporation doing
Under Section 30, the existence of the conspiracy, which exists
business through a local subsidiary?
when two or more persons come into an agreement concerning the
commission of a felony, must be established by evidence other than
HELD: Yes. A partnership is defined as two or more persons who
the act or declaration of the conspirator.
bind themselves to contribute money, property, or industry to a
common fund with the intention of dividing the profits among
themselves. On the other hand, joint ventures have been deemed to THE RAPE OF RRRAMON: AN ILLUSTRATION
be "akin" to partnerships. Since it is difficult to distinguish between
joint ventures and partnerships, thus: A month after Rrramon was kidnapped, rendered unconscious and
molested, Bangs was arrested as main suspect of the crime. When
[T]he relations of the parties to a joint venture and the nature of she was interviewed on TV, she admitted her participation in the
their association are so similar and closely akin to a partnership that crime and implicated Maja and Sarah as her fellow culprits in
it is ordinarily held that their rights, duties, and liabilities are to be planning and executing the crime.
tested by rules which are closely analogous to and substantially
the same, if not exactly the same, as those which govern Q: Is her statement admissible?
partnership. In fact, it has been said that the trend in the law has
been to blur the distinctions between a partnership and a joint A: It is admissible against herself by reason of Section 26, which
venture, very little law being found applicable to one that does not provides that the act, declaration, or omission of a party as to a
apply to the other. relevant fact may be given in evidence against him. But as to Maja
and Sarah, it is not admissible as a general rule because Section 28
Though some claim that partnerships and joint ventures are totally provides that the rights of a party cannot be prejudiced by an act,
different animals, there are very few rules that differentiate one declaration, or omission of another.
from the other; thus, joint ventures are deemed "akin" or similar to
a partnership. In fact, in joint venture agreements, rules and legal Q: How to implicate Maja and Sarah?
incidents governing partnerships are applied.
A: The requisites under Section 30 must be present.

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REQUISITES UNDER SECTION 30 4. Where the statement of the co-conspirator is made as witness
in court, there is no need for the conspiracy to be shown by
1. The declaration or act be made or done during the existence of independent evidence. (People vs. Serrano)
the conspiracy;
2. The declaration or act must relate to the conspiracy; and Q: Are extrajudicial admissions made by a conspirator after the
3. The conspiracy must be shown by evidence other than the act conspiracy has terminated and even before the trial admissible
or declaration (by evidence aliunde) against the co-conspirator?

Q: Going back to the example, did the declaration relate to the A: No, except in the following cases:
conspiracy? Yes.
1. If made in the presence of the conspirator who expressly or
Q: Was the declaration made during the existence of the impliedly agreed therein;
conspiracy? No, the declaration of Bangs was made long after the
conspiracy was over. 2. Where the facts in said admission are confirmed in the
individual extrajudicial confessions made by the co-conspirator
Q: Can the prosecutors prove the conspiracy other than the after their apprehension;
declaration of Bangs? Maybe. But how?
3. As a circumstance to determine the credibility of the witness;
Q: Why evidence aliunde? or

A: It is because conspiracy cannot be proved by direct evidence. 4. As circumstantial evidence to show the probability of the co-
Necessarily, it has to be proven by circumstantial evidence in the conspirators participation in the offense.
form of testimonies. There is no documentary evidence because the
conspirators do not reduce their agreement into writing. INTERLOCKING CONFESSIONS

So if the prosecutors can present testimonies that tend to establish These are extrajudicial confessions identical in their material
respects.
the existence of conspiracy by clear and convincing evidence, the
declaration may be admissible.
Extrajudicial confessions independently made without collusion and
are identical with each other in their material respects and
THE RAPE OF RRRAMON (Same example but this time, admissible) confirmatory of the others are admissible as circumstantial evidence
against co-accused implicated therein to show the probability of the
Rrramon was kidnapped, rendered unconscious and molested. latter’s actual participation in the commission of the crime. (People
Before Rrramon was abducted, Julia overheard Bangs, Maja and vs. Encipido, 146 SCRA 492)
Sarah planning the crime. Bangs also told her manager about their
plan to abduct Rrramon because he was “so darn cute but pakipot.” Rule 130, Section 31. Admission by privies. — Where one derives
Bangs was arrested and she promptly implicated Maja and Sarah. Is title to property from another, the act, declaration, or omission of
Bang’s statement to her manager admissible? the latter, while holding the title, in relation to the property, is
evidence against the former.
Q: Applying the requisites, did the declaration relate to the
conspiracy? Yes.
REQUISITES UNDER SECTION 31
Q: Was the declaration made during the existence of the 1. There must be privity between the party and the declarant;
conspiracy? Yes. The declaration of Bangs was made during the 2. The declarant as predecessor-in-interest made the declaration
existence of the conspiracy. while holding the title to the property; and
3. The admission relates to the property.
Q: Can the prosecutors prove the conspiracy other than the
declaration of Bangs? Yes. They can present Julia who overheard Take note that under Section 31, the declaration must be prejudicial
them planning the abduction. over the claim in the property because otherwise, you apply the Res
Inter Alios Acta Rule. Stated in another way, you cannot apply
DOCTRINES TO REMEMBER Section 31 as an exception if the declaration made is not adverse to
the claim in the property.
1. Incriminating declarations of a co-conspirator made in the
absence or without the knowledge of the others after the WHO ARE PRIVIES?
conspiracy has come to an end is inadmissible.
Those who have mutual or successive relationship to the same rights
2. The arrest of the declarant results in the termination of the of property or subject matter such as personal representatives,
conspiracy. Anything said by the declarant out-of-court after heirs, devisees, legatees, assigns, voluntary grantees, or judgment
that would not anymore be made “during its existence.” creditors or purchasers from them with notice to the facts. (Black
Law’s Dictionary)
3. If the declarant takes the witness stand and repeats the The Supreme Court, in certain cases, calls this as “causahabientes”
extrajudicial admission about his co-conspirators in court, the or successor, assignee, or heir.
same is admissible.
Examples:

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1. A lessor and his lessee, a grantor and a grantee, an assignor and When you admit evidence of similar acts by way of this exception,
an assignee (by contract) you are not actually receiving evidence as to the truth. In the
2. An executor or an administrator and the estate of the deceased example I gave you, there’s this guy MATEO who has this habit of
( by representation) molesting his helper. In 2010, he was accused of rape, he settled
3. An heir and his ascendant (by blood) this case. 2011 – accused of acts of lasciviousness this time by his
labandera (settled). 2012 – rape again this time, accused by his cook
Illustration: X, the father of Z, while the former was alive, openly (settled). This year, he was again accused of molesting his helper.
told his acquaintances, that the land where his house stood had
already been sold to Y. When you say that evidence of similar acts may be received to
prove a specific intent or knowledge, identity, plan, system, scheme,
habit, custom or usage, and the like, you are not actually receiving
Here the declaration by X is not admissible against Z, the sole heir of
evidence of why he did it. But this will become a circumstantial
Y, because the statement was made after X held title to the land.
evidence to prove that he has a propensity to do these acts by the
weight of this history.
DOCTRINE TO REMEMBER
Illustrative Case:
When the former owner of the property made the declaration after CRUZ vs. CA (1998)
he ceased to be the owner of the property, the rule on admission by
privies does not apply and what applies is the general rule that the FACTS: The Cruz heirs (Sunshine, Geneva and Rayver) executed a
rights of a party cannot be prejudiced by the act, declaration or deed of partition of their father's estate. In the said Deed, they
omission of another (Gevero vs. IAC, 189 SCRA 201) declared themselves to be the absolute owners over the respective
lands adjudicated to them individually. Subsequently, however, the
same heirs executed a MOA which stated that:
September 9, 2016
"Despite the execution of the Deed of Partition and the eventual
SECOND PART OF RES INTER ALIOS ACTA RULE disposal or sale of their respective shares, the contracting parties
herein covenanted and agreed among themselves that they shall
Rule 130, Section 34. Similar acts as evidence. — Evidence that one share alike and receive equal shares from the proceeds of the sale of
did or did not do a certain thing at one time is not admissible to any lot or lots allotted to and adjudicated in their individual names
prove that he did or did not do the same or similar thing at another by virtue of this deed of partial partition."
time; but it may be received to prove a specific intent or knowledge;
identity, plan, system, scheme, habit, custom or usage, and the like. Atty JZE: What I’m trying to point out here based on the facts so far
is that there is this estate, there are heirs and they already
partitioned it so they put an end to their co-ownership. They
The rule prohibits the admission of the so-called "propensity
declared that whatever was given to them by way of partition, is
evidence" which is evidence that tends to show that what a person
already theirs. They are the absolute owners of the property. But
has done at one time is probative of the contention that he has done
subsequently for whatever reason, they executed a MOA.
a similar act at another time.
So what is the effect of that? You can actually contend that because
Why is it that that is a rule of thumb? There are two simple issues
they are still sharing in the proceeds, there still exists some
that we need to remember here:
semblance of co-ownership. Why did this become an issue?
1. Issue of relevancy Because…
2. Issue of propriety
Geneva obtained a loan which she was unable to pay. A case was
WHY INADMISSIBLE? filed against her which she lost. Still unable to pay, a parcel of land
adjudicated to Geneva under the Deed of Partition was levied on
■ ISSUE OF RELEVANCY. What a person did in the past is irrelevant execution and was bought by her creditor as highest bidder. Her co-
to the issue of whether he did what he is charged at present. heirs filed a case to question the execution sale on the ground that,
as co-owners, they have the right to redeem the property.
■ ISSUE OF PROPRIETY. Evidence of similar acts or occurrences
compels the defendant to meet allegations that are not mentioned Atty JZE: Remember that there are two contracts here. First is the
in the complaint, confuses him in his defense, raises a variety of deed of partition where they declared that they are absolute owners
relevant issues, and diverts the attention of the court from the of the land adjudicated to them. Second, the MOA where they
issues immediately before it. (CRUZ vs. COURTOF APPEALS) agreed to share proceeds. So if you are a co-owner, remember that
you have the right of redemption to keep the property within the
EXCEPTIONS UNDER SECTION 34 family.

1. MODUS OPERANDI During trial, Geneva's creditor belied this co-ownership by


presenting deeds of sale and contracts of mortgage entered into by
Evidence of similar acts may be received to prove a specific intent Geneva where she stated that she was the absolute owner of the
or knowledge, identity, plan, system, scheme, habit custom or lands given to her by the Deed of Partition, including the one levied
usage, and the like. upon during execution. Geneva objected on the ground of Res Inter
Alios Acta.

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Atty JZE: What is the creditor here trying to do? The creditor is trying 1. MODUS OPERANDI – What do you need to remember here?
to establish that by prior contracts entered into by Geneva, she has When you admit evidence of similar acts by way of exception of
already declared that she is the absolute owner of such property. MODUS OPERANDI, you are not admitting evidence for its
This includes a contract of mortgage executed over the very same truth, YOU ARE ADMITTING IT AS CIRCUMSTANTIAL EVIDENCE
property levied at execution. OF SUCH PROPENSITY.
.
HELD: Res inter alios acts prohibits the admission of evidence that In all probability, because this is what he tends to do all the
tends to show that what a person has done at one time is probative time, there is probability that he may have done something
of the contention that he has done a similar as act at another time. similar to it.
Evidence of similar acts or occurrences compels the defendant to
meet allegations that are not mentioned in the complaint, confines 2. RATIONAL SIMILARITY- When there is a rational similarity or
him in his defense, raises a variety of irrelevant issues, and diverts resemblance between the conditions giving rise to the fact
the attention of the court from the issues immediately before it. offered and the circumstances surrounding the issue or fact to
Hence, this evidentiary rule guards against the practical be proved. (Cruz vs. CA)
inconvenience of trying collateral issues and protracting the trial and
prevents surprise or other mischief prejudicial to litigants. 3. In actions based on fraud and deceit, because it sheds light on
the state of mind or knowledge of a person; it provides insight
The rule, however, is not without exception. While inadmissible in into such person's motive or intent; it uncovers a scheme,
general, collateral facts may be received as evidence under design or plan; or it reveals a mistake.
exceptional circumstances, as when there is a rational similarity or
resemblance between the conditions giving rise to the fact offered Rule 130, Section 32. Admission by silence. — An act or declaration
and the circumstances surrounding the issue or fact to be proved. made in the presence and within the hearing or observation of a
party who does or says nothing when the act or declaration is such
Atty JZE: According to the SC, this is an exception that is applicable. as naturally to call for action or comment if not true, and when
Is there any rational similarity? Is there any resemblance to prove proper and possible for him to do so, may be given in evidence
what was probably the state of mind of Geneva at the time the against him.
property was levied at execution? Is she of the belief that there is co-
ownership or that she is the absolute owner of the property?
Now, what’s the first instinct of man? Self-preservation. If you hear
Evidence of similar acts may frequently become relevant, especially something that’s damning to you, your natural reaction is to correct
in actions based on fraud and deceit, because it sheds light on the a possible misconception. But when something is done or said that
state of mind or knowledge of a person; it provides insight into such ought to have affected you and you did not react, the logical
person’s motive or intent; it uncovers a scheme, design or plan; or it presumption is that maybe you did not react because it might be
reveals a mistake. true.

In this case, petitioners argue that transactions relating to the other REQUISITES UNDER SECTION 32
parcels of land they entered into, in the concept of absolute owners,
1. The party must have heard or observed the act or declaration
are inadmissible as evidence to show that the parcels in issue are
not co-owned. The court is not persuaded. Evidence of such of the other person.
transactions falls under the exception to the rule on the res inter 2. He must have had the opportunity to deny it.
3. He must have understood the statement.
alios acta. Such evidence is admissible because it is relevant to an
4. He must have an interest to object, such that he would
issue in the case and corroborative of evidence already received.
naturally have done so, if the statement was not true;
Atty JZE: So that’s when you apply this exception. First, when it is 5. The facts were within his knowledge; and
relevant – there’s a rational resemblance. Second, if it is used as 6. The fact admitted or the inference to be drawn from his silence
is material to the issue.
corroborative evidence of evidence already received. READ THIS
CASE! IT IS VERY IMPORTANT. Gamay man gud questions under this
DOCTRINES TO REMEMBER
section so in all probability, if this topic is asked in the bar, this will
be the case.
1. The rule does not apply when a person is under an official
investigation. A person under a custodial investigation for the
The relevancy of such transactions is readily apparent. The nature of commission of an offense has the right to remain silent and to
ownership of said property should be the same as that of the lots in
be informed of that right.
question since they are all subject to the MOA. If the parcels of land
were held and disposed by petitioners in fee simple, in the concept Why? Because even if it is under custodial investigation, you
of absolute owners, then the lots in question should similarly be
have the right to remain silent. You have even the right to be
treated as absolutely owned in fee simple by Geneva's creditor. told that you have the right to remain silent. So when your
Unmistakably, the evidence in dispute manifests petitioner’s
silence is pursuant to that, then it is not admission.
common purpose and design to treat all the parcels of land covered
by the deed of partition as absolutely owned and not subject to co-
2. The silence of an accused under custody or his failure to deny
ownership. statements by another implicating him in a crime cannot be
considered as a tacit confession of his participation in the
SUMMARY OF ALL EXCEPTIONS commission of the crime. (People vs. Alegre, 1979)

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3. Where no good reason exists for the party to comment on the Estrada did not object to the suggested option but simply said he
act or declaration, as when the act or declaration was not could never leave the country.
specifically directed to the party who remained silent, the rule
does not apply. HELD: His silence on this and other related suggestions can be taken
as adoptive admissions by him. An adoptive admission is a party's
4. The rule also does not apply when the party had no opportunity reaction to a statement or action by another person when it is
to comment on the act or declaration. reasonable to treat the party's reaction as an admission of
something stated or implied by the other person.
5. Where the act or declaration was made in the course of an
official investigation (People v. Tia Fong, 98 Phil. 609) or when SIR: Again, I criticize this case:
his silence is upon the advice of counsel, the rule does not
apply. 1. It is based on Hearsay Evidence. It is not based on personal
knowledge. To my mind, this is triple-deck hearsay.
There are reasons why lawyers do the talking and the clients are just
supposed to keep quiet unless they are asked. 2. The SC practically invented an exception to the doctrine of Res
Inter Alios Acta Rule taken from American Jurisprudence.
DOCTRINE OF ADOPTIVE ADMISSION Somehow, to my mind, what is important here is to really put
the Arroyo administration on legit grounds. The grounds by the
It states that a party may, by his words or conduct, voluntarily adopt SC are quite flimsy but the SC had no choice because at that
or ratify another's statement. Where it appears that a party clearly time, Arroyo is already in Malacanang. SC said “WE ARE FINAL
and unambiguously assented to or adopted the statements of NOT BECAUSE WE ARE INFALLIBLE, WE ARE INFALLIBLE ONLY
another, evidence of those statements is admissible against him. BECAUSE WE ARE FINAL.”

It is a party's reaction to a statement or action by another person Section 32: “Qui Tacet Consentire Videtur.” - He who is silent is
when it is reasonable to treat the party's reaction as an admission of deemed to consent.
something stated or implied by the other person.
Rule 130, Section 33.Confession. — The declaration of an accused
EFFECT: A third person's statement becomes the admission of the
acknowledging his guilt of the offense charged, or of any offense
party embracing or espousing it.
necessarily included therein, may be given in evidence against him.
Why is it discussed under Sec. 32? Because the effects are the same.
WHAT IS A CONFESSION?
Section 32 – admission by silence, you ought to have reacted but
failed to do so despite having an opportunity to do so. So the effect It is a categorical acknowledgment of guilt made by an accused of
is you admit it by your silence. the offense charged or of any offense necessarily included therein,
without any exculpatory statement or explanation. Thus, even if he
Under the doctrine of adoptive admission, someone says a admits the offense but alleges a justification therefor, the same is
statement but somehow, because of what you say or what you do, merely an admission. It cannot be considered a confession.
you did not refute it, you are deemed to have adopted it. That
statement becomes the admission of the party who adopts the From the definition, what do we need to remember, CATEGORICAL.
statement. He has to say “YES I DID IT! I killed that guy.”

ADOPTIVE ADMISSION MAY OCCUR WHEN: AND WITHOUT ANY EXCULPATORY STATEMENT – “Yeah I killed him
but…” No buts.
a. Expressly agrees to or concurs in an oral statement made by
another; CLASSIFICATIONS OF CONFESSION
b. Hears a statement and later on essentially repeats it;
c. Utters an acceptance or builds upon the assertion of another; 1. Judicial confession is one made by the accused before a court
d. Replies by way of rebuttal to some specific points raised by in which the case is pending and in the course of legal
another but ignores further points which he or she has heard proceedings therein and, by itself, can sustain conviction.
the other make; or
e. Reads and signs a written statement made by another. It can happen while the witness is in the witness stand or it
(Republic v. Kendrick Development Corp., G.R. 149576, Aug. 8, could be during pre-trial. Remember the so called Fule Doctrine
2006) that we discussed where it was categorically declared by the SC
that any agreement, confession or admission made during pre-
ESTRADA vs. DESIERTO (2001) trial must be signed by the accused and counsel, otherwise
those admissions are inadmissible.
One good example of adoptive admission is the alleged admission
made by President Estrada. His options had dwindled when, 2. Extrajudicial confession— is one made in any other place or
according to the Angara Diary, the Armed Forces withdrew its occasion and cannot sustain a conviction unless corroborated
support from him as President and Commander-in-Chief. Thus, by evidence of corpus delicti.
Angara had to allegedly ask Senate President Pimentel to advise
Estrada to consider the option of "dignified exit or resignation." So, a judicial confession is sufficient in itself to convict. An
extrajudicial confession, on the other hand, is not sufficient to

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LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

convict but admissible, and when corroborated by evidence of 4. If they are charged as co-conspirators of the crime which was
corpus delicti, would be sufficient to produce a conviction. confessed by one of the accused and said confession is used
only as corroborating evidence;
REQUITES FOR A CONFESSION TO BE ADMISSIBLE AS EVIDENCE
5. Where the confession is used as circumstantial evidence to
1. It must involve an express and categorical acknowledgement of show the probability of participation by the co-conspirator;
guilt;
6. When the confessant testified for his co-defendant; and
This must be unequivocal.
7. Where the co-conspirator's extrajudicial confession is
2. Facts admitted must be constitutive of a criminal offense; corroborated by other evidence of record.

In other words, if you are charged with murder and yet Admission vs. Confession
you admitted only to a robbery, it would not suffice as a
confession. Admission Confession
Definition Statement of fact
3. It must have been given voluntarily; which does not
involve an
4. It must have been intelligently made, the accused realizing the acknowledgement of
Declaration
importance or legal significance of his act; guilt or liability
acknowledging
one’s guilt of the
During trial or even during plea bargain, the judge should : it may be an
offense charged
always ask: “Are you making this intelligently, voluntarily acknowledgment of
and with full knowledge of the consequences?” guilt or liability but
not all the time,
5. There must have been no violation of Section 12 (Miranda remember that there
rights), Art. III of the 1987 Constitution. are self serving or
favorable admission
CONFESSION IS EVIDENCE OF HIGHER ORDER (compared to object Form Must be express
evidence) Express/Implied should be
categorical
There is no evidence of a higher quality than a confession. It Made by Party or 3rd person
represents the outward manifestation of a man. Unless, therefore,
The party himself
the confession is nullified by evidence of duress, the same is example of 3rd
(accused)
admissible as an evidence of guilt of a high quality. (People v. Garcia, persons: partner,
54 Phil. 329) agent, privy
Type of case Any case Criminal case
If a confession be true and voluntary, the deliberate act of the
accused with a full comprehension of its significance, there is no BAR QUESTION 2014
impediment to its admission as evidence and it then becomes
evidence of a high order, since it is supported by the presumption, a Rene, bothered by his conscience, surrendered to the authorities
very strong one, that no person of normal mind will deliberately and with his counsel. As his surrender was broadcasted all over media,
knowingly confess himself to be the perpetrator of a crime, Rene opted to release his statement to the press which goes:
especially if it be a serious crime, unless prompted by truth and
conscience. (People v. Zea, et al., 130 SCRA 87) "I believe that I am entitled to the presumption of innocence until my
guilt is proven beyond reasonable doubt. Although I admit that I
Q: May the extra-judicial confession of an accused be admitted in performed acts that may take one's life away, I hope and pray that
evidence against his co-accused? justice will be served the right way. God bless us all”

A: No, because of the general rule on Res Inter Alios Acta. However, Love, Rene
there are exceptions.
Q: Is this a confession?
EXCEPTIONS
Atty JZE: Is it a categorical and express acknowledgement of guilt
1. In case of implied acquiescence of the co-accused to the that is also unconditional and unqualified? Take note that he only
extrajudicial confession; said “Although I admit that I performed acts that may take one's life
away” So it is not categorical. It is not constitutive of an offense.
2. In case of interlocking confessions;
A: No. Rene's statement is not a confession but an admission. A
“I confessed!” and then the other co accused would also confession is one wherein a person acknowledges his guilt of a
testify as to practically the same confession. crime, which Rene did not do.
3. Where the accused admitted the facts stated by the confessant
after being apprised of such confession; RULE RE: EXTRAJUDICIAL CONFESSIONS

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Rule 133, Section 3. An extrajudicial confession made by an accused, Atty JZE: Be mindful of these things because these are the kind of
shall not be sufficient ground for conviction, unless corroborated by questions that I love to ask in the exam. Something that would test
evidence of corpus delicti. your foundation or stock knowledge.

Corpus delicti (body of the crime) means the actual commission of Rule 130, Section 35. Unaccepted offer. — An offer in writing to pay
the crime charged (People vs. Madrid, 88 Phil. 1), or the specific fact a particular sum of money or to deliver a written instrument or
of loss or injury (People vs. Garcia, 99 Phil. 381). specific personal property is, if rejected without valid cause,
equivalent to the actual production and tender of the money,
In a crime of murder, the corpus delicti therefore is the body of the instrument, or property.
deceased person. So you cannot convict an accused unless you
present the body of the deceased? TAMA or MALI? MALI, you don’t Atty JZE: Sleep the night away because Section 35 will never be asked
need to produce the body of the victim. That would be scary! in the bar exams.
Objection your honor, I’m scared!

Is it possible to convict an accused for the crime of murder if the September 14, 2016
body of the victim was never found? YES. Jurisprudence provides
that there can still be conviction. So do not interpret corpus delicti HEARSAY RULE
literally because it does not mean “the body”. It means the actual
commission of the crime charged or the specific fact or loss. Rule 130, Section 36. Testimony generally confined to personal
knowledge; hearsay excluded. — A witness can testify only to those
EXAMPLES OF CORPORA DELICTI facts which he knows of his personal knowledge; that is, which are
derived from his own perception, except as otherwise provided in
1. In murder or homicide, the corpus delicti is the fact of death these rules.
which may be proved even circumstantially. (People vs. Garcia)
Atty. Espejo: In my experience, majority of objections come from this
2. In robbery or theft, the corpus delicti is fact of loss (People v. (hearsay rule) after objections based on relevancy and competency
Niem, 75 Phil. 668).
of witnesses.
3. In arson, the corpus delicti is the fact of burning. (People v.
Take note on the requirement that when you testify or give
Marquez, 77 Phil. 83)
testimonial evidence in a case in court, it has to be based on personal
knowledge, your own personal perception. What did you see, smell,
Rule 133, Section 3 in effect requires that, for a conviction to be taste, or touch? Beyond that, or when it was related to you by
made based on an extrajudicial confession, there must be evidence
somebody else, that is no longer considered as an admissible
of corpus delicti. Thus, the law absolutely requires more than one
testimony.
type of evidence to convict the accused. (extrajudicial confession +
corpus delicti).
BASICS
Q: What are other instances where the law absolutely mandates the
Hearsay evidence is evidence given by a witness based on
presentation of more than one type or piece of evidence in order to
information passed to that person by others rather than evidence
prove a matter of fact?
experienced at first hand by the witness.
Atty JZE: I’ll tell you examples where even one piece of evidence is
UNCHUAN vs. LOZADA (2009)
sufficient to convict:
Evidence is hearsay when its probative force depends, in whole or in
1. Conviction for rape can be made even from the sole testimony
part, on the competency and credibility of some persons other than
of the victim.
the witness by whom it is sought to be produced.
2. Conviction for murder can be made even from just the
testimony of one eyewitness.
Atty. Espejo: The situation in vision there is that there would be a
A: Going back to the question, the following are the other instances witness who will testify in court as to what somebody else told him.
where the law mandates the presentation of more than one type of Have you cross-examined that person who told him the information?
evidence to prove a matter of fact: No. When you swear to tell the truth, the whole truth and nothing
but the truth, you are the only one who can be subjected to perjury.
1. A conviction based on circumstantial evidence requires that The witness could not lawfully attest that what he will be saying is
there be more than one circumstance (Rule 133, Section 4). the truth. He could not have had the idea whether or not the
2. In the crime of treason under Art. 114 of the Revised Penal declarant’s information is true.
Code, no person shall be convicted unless on the testimony of
two witnesses at least to the same overt act or on confession of CHARACTERISTICS
the accused in open court.  It is an out-of-court declaration repeated by a witness who
3. A person executing the notarial will should sign on every page himself did not make the declaration
and must be witnessed by at least three (3) persons who should  It is offered to prove the truth of the matter asserted
also sign the will (Art. 805, Civil Code of the Philippines).  It is inadmissible, as a general rule

Atty. Espejo:

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[On out-of-court declaration]


If you heard it from a different court in a different case, that would On no. 2
still be considered an out-of-court declaration. So, the venue would As a judge, you have the ability to observe the demeanor of a
not matter. It is when and where you made it. Did you make your witness. You are not a passive referee. When a witness testifies, the
testimony in court based on personal knowledge? If not, then it is judge would be able to remember if the witness was immediately
hearsay. able to offer an explanation to a particular question or naghuna-
huna pa basya? This may mean that the witness is trying to contrive
[On offered to prove the truth of the matter asserted] something. The judge will be able to ascertain the credibility of the
This is a very important characteristic that you need to remember. If witness. This is very important in determining the weight of the
your statement is simply to prove that it was said but you are not evidence that may be considered by the court.
offering it as the truth of the statement, then it is not considered
hearsay. AS A RULE OF EXCLUSION
The hearsay character of evidence may be waived by failure to
TWO CONCEPTS OF HEARSAY EVIDENCE object. However, admissibility is not the same as evidentiary weight
or probative value.
1. Second hand information (not derived from personal
knowledge of witness); and PHILIPPINE REALTY HOLDINGS CORPORATION vs. FIREMATIC
2. Testimony by a witness derived from his personal knowledge PHILIPPINES, INC. (2007)
BUT the adverse party is not given opportunity to cross-
examine. The lack of objection may make an incompetent evidence
For example, Plaintiff presents witness A. A testifies in admissible, but admissibility of evidence should not be equated
court on matters personally known to him. After direct with weight of evidence. Indeed, hearsay evidence whether
examination, court tells that defendant can cross examine objected to or not has no probative value.
on next scheduled hearing. On the next scheduled hearing,
witness A no longer appears and could no longer be HEARSAY EVIDENCE MAY BE:
located. The remedy here now is to ask that the testimony ORAL, WRITTEN or NON-VERBAL CONDUCT
of witness A be stricken out since it now becomes hearsay.
The rule excluding hearsay is not limited to oral statements. It also
Atty. Espejo: [On no. 2] This is subject to a motion to strike on the applies equally well to written evidence (such as affidavits, letters,
ground that it is hearsay since there was no cross-examination. sworn statements) as well as to non-verbal conduct (such as
gestures and actions).
On second-hand information made by out-of-court declarant
repeated by a witness in court, you cannot examine the declarant. AFFIDAVITS
Therefore, it is hearsay. The constitutional right to confrontation precludes reliance on
affidavits. Such a constitutional safeguard cannot be satisfied unless
REQUISITES: the opportunity is given to the accused to test the credibility of any
A statement will be considered hearsay if it is: person, who, by affidavit or deposition, would impute the
commission of an offense to him. It would be to disregard one of the
1. An assertive statement most valuable guarantees of a person accused if solely on the
[it has to be an intentional communication of a fact] affidavits presented, his guilt could be predicated.
2. Made by an out-of-court declarant
[Remember the postulate that even if it was made in court but Atty. Espejo: If you are going to submit an affidavit, as a general
in a different case, it would still be considered as an out-of-court rule, that affidavit will not testify for itself. The witness, the affiant,
declaration] has to repeat the testimony in court unless counsel is allowed to
3. Offered to prove the truth of the matter asserted therein conduct the affidavit as the witness’ testimony.
[If you only repeat a declaration but then you do not say it is
true, that would be different] But in quasi-judicial tribunals such as in labor cases, an illegal
dismissal for example. What happens before the Labor Arbiter? You
REASONS FOR INADMISSIBILITY [of hearsay] do not conduct direct examinations of witnesses. The cases are
decided through the position papers. Remember, position papers do
1. Absence of cross-examination not only show *the party’s+ legal position. It also shows a factual
 While you can examine the witness, you cannot cross- position. For example, an employee submits a position paper, he
examine the source of his information proves the circumstances that led to his dismissal by attaching an
2. Absence of demeanor evidence affidavit. The LA, by deciding the case through the position papers
 The court cannot determine the credibility of an out-of- alone, is in effect ruling based on hearsay evidence.
court declarant by judging his demeanor
3. Absence of oath or affirmation UNCHUAN vs. LOZADA
 The out-of-court declarant cannot be subjected to perjury
It is a hornbook doctrine that an affidavit is merely hearsay
Atty. Espejo: evidence where its maker did not take the witness stand. Verily,
On no. 1 the sworn statement of Anita was of this kind because she did not
Here, there is no telling whether the information is true or not. You appear in court to affirm her averments therein.
cannot test the truthfulness and accuracy of the statement of an out-
of-court declarant. NEWSPAPER ARTICLES

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Double Deck Hearsay


 It is hearsay within hearsay. It is when a witness testifies as ESPINELI vs. PEOPLE (2014)
to an assertion by an out-of-court declarant which in turn
is merely second-hand information. Double hearsay is Regardless of the truth or falsity of a statement, when what is
actually mere third-hand information. relevant is the fact that such statement has been made, the
hearsay rule does not apply and the statement may be shown. As
Atty. Espejo: Recall Estrada vs. Desierto. The Angara diary itself is a matter of fact, evidence as to the making of the statement is not
hearsay. When it was published in a newspaper and used as secondary but primary, for the statement itself may constitute a
evidence in the Supreme Court, that is already triple deck hearsay. fact in issue or is circumstantially relevant as to the existence of
such a fact. This is known as the doctrine of independently
However, in American Jurisprudence, newspapers are considered relevant statements.
self-authenticating.
Atty. Espejo: What we need to determine therefore is when would
Atty. Espejo: This is because of the sheer number of units (of the hearsay statement be the very fact in issue and when would it be
newspapers) published. You can expect that the copy of the a circumstantial evidence of the fact in issue. Either way, it is not
newspaper that you have is the very exact copy that another person covered by the hearsay rule. (?)
has. Then, there is no need for authentication. It is already self-
authenticating. Tenor
The testimony of a witness is made to prove the mere fact that
BAR QUESTION 2003 something said to him by someone and not the truth of what was
said.
Homer Honesto Henson was charged with robbery. On the
strength of a warrant of arrest issued by the court, Homer PEOPLE vs. MALIBIRAN (2009)
Honesto Henson was arrested by the police operatives. They
seized from his person a handgun. A charge for illegal possession The law provides for specific exceptions to the hearsay rule. One is the
of firearm was also filed against him. In a press conference called doctrine of Independently Relevant Statements (IRS), where only the fact
by the police, Homer Honesto Henson admitted that he had that such statements were made is relevant, and the truth or falsity thereof
robbed the victim of jewelry valued at P 500, 000. is immaterial. xxx The witness who testifies thereto is competent because he
heard the same, as this is a matter of fact derived from his own perception,
The robbery and illegal possession of firearm cases were tried and the purpose is to prove either that the statement was made or the
jointly. The prosecution presented in evidence a newspaper tenor thereof.
clipping of the report to the reporter who was present during the
press conference stating that Homer Honesto Henson admitted Atty. Espejo: An evidence is relevant when it tends in any reasonable
the robbery. It likewise presented a certification of the PNP degree the truth of the probability and improbability of the fact in
Firearms and Explosive Office attesting that the accused had no issue. So when it is an IRS, the fact that the statement was made is in
license to carry any firearm. The certifying officer, however, was itself relevant.
not presented as a witness. Both pieces of evidence were
objected to by the defense. When is a hearsay statement is the very fact in issue?
CASE SAMPLE
Question: Is the newspaper clipping admissible in evidence
against Homer Honesto Henson? The accused told his neighbor (private complainant),
“Nganongastig-astig man ka?” However, the complainant heard it
Suggested Answer: as “Nganongadik-adik man ka?” The latter statement is an
Yes, the newspaper clipping is admissible in evidence against imputation of a vice or defect which can be a source of
Henson. Regardless of the truth or the falsity of a statement, the prosecution for defamation.
hearsay rule does not apply and the statement may be shown
where the fact that it has been made is relevant. Evidence as to Here, when the private complainant testifies in court, he will
the making of such statement is not secondary but primary, for narrate to the court what is technically hearsay. He is not
the statement itself may constitute a fact; in issue, or be testifying based on his personal information. He is merely relating
circumstantially relevant as to the existence of such a what was told by the accused.
fact. (Gotesco Investment Corporation vs. Chatto, 1992)
But because in the prosecution for slander and defamation, the
Doctrine of Independently Relevant Statements (IRS) very fact in issue is the mere fact that the statement was made. It
While the testimony of a witness regarding a statement made by is not covered by hearsay rule it being an independently relevant
another person given for the purpose of establishing the truth of the statement.
fact asserted in the statement is clearly hearsay evidence, IT IS NOT
HEARSAY if the purpose of placing the statement on the record is Why is IRS admissible despite being hearsay?
merely to establish the fact that the statement, or the tenor of such 1. Because it is RELEVANT.
statement, was made. 2. They are relevant because the statement itself is:
a. Either the very fact in issue; or
Atty. Espejo: In an IRS, as an exception to the hearsay rule, you are b. Circumstantial evidence of a fact in issue
not offering it as truth. You are not trying to convince the court that
what you are repeating in court is true but only to prove that the The very fact in issue:
statement was made.

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Consider an action for oral defamation where the following (7) The possibility of faulty recollection of the declarant
exchange took place between the prosecutor and his witness: child is remote; and
Prosecutor: What did you hear the accused say? (8) The circumstances surrounding the statement are
Defense: Objection, Your Honor. Question calls for hearsay such that there is no reason to suppose the declarant
testimony! child misrepresented the involvement of the accused.
Court: Not so fast! Witness may answer.
Witness: The accused said while pointing to the victim: (c) The child witness shall be considered unavailable under the
“You are a thief. You stole my money! You are a liar!” following situations:
(1) Is deceased, suffers from physical infirmity, lack of
Circumstantial evidence of the fact in issue: memory, mental illness, or will be exposed to severe
Let us assume we have a special proceeding in court. Let us say it is psychological injury; or
the probate of a testator’s will. Some heirs who felt aggrieved by the (2) Is absent from the hearing and the proponent of his
dispositions in the will have raised the issue of the testator’s sanity. statement has been unable to procure his attendance by
The will was purportedly executed on January 3 of the previous year. process or other reasonable means.
A witness for the oppositor is on the stand to testify on the
testator’s alleged incapacity. (d) When the child witness is unavailable, his hearsay testimony
Q: How long have you known the testator? shall be admitted only if corroborated by other admissible
A: For 20 years by the time he died, Sir. evidence.
Q: How did you come to know him?
A: I was her nurse for 20 years, Sir. Section 26. Admission of a party. — The act, declaration or
Q: On January 3, 2004, what did you hear the testator say? omission of a party as to a relevant fact may be given in evidence
Objection, Your Honor! (Opposing counsel objects) against him.
Court: Not so fast, witness may answer!
A: In the morning of January 3, he said, “I am DARNA!” Atty. Espejo: When you make an admission to a third person, which
is a deserving admission, it is admissible. When that third person is
Atty. Espejo: The statement of the testator is not the very fact in presented in court, what he will be testifying is what was your
issue but it is circumstantially relevant to the fact in issue, which is admission against your interest. This is admissible.
that the testator was of unsound mind at the time the will was
made. Technically speaking, this is hearsay. You are testifying to a Section 26 of Rule 130 provides that "the act, declaration or
second hand information. omission of a party as to a relevant fact may be given in evidence
against him. It has long been settled that these admissions are
OTHER NON-CODAL EXCEPTIONS admissible even if they are hearsay. (Unchuan vs. Lozada, ibid.)

Section 28 of Rule on Examination of a Child Witness: RELAXATION OF THE HEARSAY EXCLUSION IN WRIT OF AMPARO
Section 28. Hearsay exception in child abuse cases. - A statement CASES
made by a child describing any act or attempted act of child
abuse, not otherwise admissible under the hearsay rule, may be RAZON, JR. vs. TAGITIS (2009)
admitted in evidence in any criminal or non-criminal proceeding (Note: This is a potential BQ. It is very informative on Writ of
subject to the following rules: Amparo)

(a) Before such hearsay statement may be admitted, its proponent The fair and proper rule, to our mind, is to consider all the pieces
shall make known to the adverse party the intention to offer such of evidence adduced in their totality, and to consider any
statement and its particulars to provide him a fair opportunity to evidence otherwise inadmissible under our usual rules to be
object. If the child is available, the court shall, upon motion of the admissible if it is consistent with the admissible evidence
adverse party, require the child to be present at the presentation adduced. In other words, we reduce our rules to the most basic
of the hearsay statement for cross-examination by the adverse test of reason i.e., to the relevance of the evidence to the issue
party. When the child is unavailable, the fact of such circumstance at hand and its consistency with all other pieces of adduced
must be proved by the proponent. evidence. Thus, even hearsay evidence can be admitted if it
satisfies this basic minimum test.
Atty. Espejo: Here, the act of cross examination removes the
[testimony] from the advent of hearsay. Atty. Espejo: Razon vs. Tagitis is a case of enforced disappearance.
Mrs. Tagitis was told by a certain Col. Kasim that her husband was in
(b) In ruling on the admissibility of such hearsay statement, the custody of the police and was being interrogated. This statement
court shall consider the time, content and circumstances thereof was the basis of filing of the writ of amparo. When the wife testifies
which provide sufficient indicia of reliability. It shall consider the in court, her testimony of what was told by Col. Kasim is hearsay. In
following factors: fact, the information coming from Col. Kasim was also related to him
(1) Whether there is a motive to lie; by somebody else. It is double deck hearsay already. But SC said in
(2) The general character of the declarant child; this case, there is no need to be strict.
(3) Whether more than one person heard the statement;
(4) Whether the statement was spontaneous; Somehow without saying, SC took judicial notice of the fact that in
(5) The timing of the statement and the relationship cases of forced disappearances, guarded against writ of amparo, the
between the declarant child and witness; usual pieces of evidence is hearsay.
(6) Cross-examination could not show the lack of
knowledge of the declarant child; PRESENT SENSE IMPRESSION

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The Fugitive (A Movie)


LOZANO vs. PEOPLE (2010) One popular example of a dying declaration was in the movie “The
Fugitive”. Dr. Richard Kimble (Harrison Ford), a successful vascular
A statement describing or explaining an event or condition made surgeon in Chicago, came home one night to find his wife Helen
while the declarant was perceiving the event or condition, or fatally wounded by a man with a prosthetic arm, and though he
immediately thereafter, is not barred by the rule against hearsay. attempted to subdue the killer, the man escaped.
The rationale for the “present sense impression” exception is that:
1. There is no substantial danger that defects in the Before the wife died while she was being attacked, she managed
declarant’s memory will affect the value of the to contact 911. While on the line, she saw her husband (Ford)
statement; arriving home and all she could say was “Richard. Richard.” Then,
2. The declarant would not have had much time to she died.
fabricate before making the statement; and
3. In many cases, the person to whom the statement was The lack of evidence of a break-in, fingerprints being found on the
addressed would have been in a position to check its gun and the bullets, and Helen’s misunderstood 911 call led the
accuracy; hence, the declarant could speak with care. Chicago Police Department to charge Kimble with murder, and he
is sentenced to death by lethal injection.
Atty. Espejo: This is when you speak according to your present sense,
how you feel at the very moment. This is your immediate REASONS FOR ADMISSIBILITY
spontaneous reaction to particular event. This somehow relates to
one of the exceptions, the res gestae exception. PEOPLE vs. BAUTISTA
G.R. No. 111149 September 5, 1997
For example, you say “It is cold!” when it is cold. People around you
would most likely agree. This present sense impression is admissible There are two (2) obvious reasons for the admissibility of a dying
because it could be easily verified. declaration: (a) NECESSITY and (b) TRUSTWORTHINESS.

CODAL EXCEPTIONS TO THE HEARSAY RULE Necessity, because the declarants death renders impossible his
taking the witness stand. And trustworthiness, since the
CODAL EXCEPTIONS: declaration is made in extremity, when the party is at the point of
1. Dying declaration death and every hope of this world is gone; when every motive to
2. Declaration against interest. falsehood is silenced, and the mind is induced by the most
3. Act or declaration about pedigree powerful consideration to speak the truth. A situation so solemn
4. Family reputation or tradition regarding pedigree and awful is considered by the law as creating an obligation equal
5. Common reputation to that which is imposed by an oath administered in court
6. Part of res gestae
7. Entries in the course of business TRUSTWORTHINESS
8. Entries in official records
9. Commercial lists and the like MARTURILLAS vs. PEOPLE
10. Learned treatises G.R. No. 163217April 18, 2006
11. Testimony or deposition at a former proceeding
FACTS: Lito Santoswas eating supper in their kitchen when he
Rule 130, Section 37. Dying declaration. — The declaration of a heard a gunshot. From a distance of about ten (10) meters, he
dying person, made under the consciousness of an impending also noticed smoke and fire coming from the muzzle of a big gun.
death, may be received in any case wherein his death is the subject Moments later, he saw his neighbor Artemio (the victim) clasping
of inquiry, as evidence of the cause and surrounding circumstances his chest and staggering backwards to the direction of his (Lito’s)
of such death. kitchen. Artemio shouted to him, ‘Tabangiko Pre, gipusil ko ni
kapitan.’ (Help me, Pre, I was shot by the captain.)
Other Names:
1. Ante Mortem Statement Shortly, Lito saw Ernita Pantinople, the wife of Artemio, coming
2. Statements in Articulo Mortis from her house towards the direction where Artemio was
sprawled on the ground. Ernita was hysterical, jumping and
A dying declaration is one of the oldest exceptions to the hearsay shouting, ‘Kapitan, ngano nimo gipatay ang akong bana!’
rule. In fact, as early as 1928, the Supreme Court ruled anent the
object of dying declarations that: HELD: Statements identifying the assailant, if uttered by a victim
A dying declaration is admitted of necessity in order, as on the verge of death, are entitled to the highest degree of
the Supreme Court of Mississippi states, "to reach those credence and respect. Persons aware of an impending death have
man slayers who perpetrate their crimes when there are been known to be genuinely truthful in their words and extremely
no other eyewitnesses." (People vs. Toledo, 1928) scrupulous in their accusations. The dying declaration is given
credence, on the premise that no one who knows of one’s
Atty. Espejo: Note that a dying man (and who subsequently died) impending death will make a careless and false accusation.
who declared to his child that he is not his biological son would not
destroy the legitimate filiation of the child. This is not a dying PEOPLE vs. PALANAS
declaration. It fulfills none of the requisites except that it was made G.R. No. 214453 June 17, 2015
under the consciousness of an impending death.
This declaration is considered evidence of the highest order and is

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entitled to utmost credence since no person aware of his Requisite #2: When the declaration was made, the declarant is
impending death would make a careless and false accusation. conscious of his impending death
Verily, because the declaration was made in extremity, when the
party is at the point of death and when every motive of falsehood What factors should be considered in determining whether the
is silenced and the mind is induced by the most powerful declarant is conscious of his impending death?
considerations to speak the truth, the law deems this as a 1. Utterances;
situation so solemn and awful as creating an obligation equal to 2. Actual character and seriousness of his wounds; and
that which is imposed by an oath administered in court. 3. By the declarant’s conduct and the circumstances at the
time he made the declaration, whether he expected to
REQUISITES (Bar 1998) – Memorize! survive his injury.
PEOPLE vs. PALANAS
On No. 2: Actual character and seriousness of the wounds:
For a dying declaration to constitute an exception to the hearsay PEOPLE vs. VILLARIEZ
evidence rule, four (4) conditions must concur: G.R. No. 211160 September 2, 2015
(a) the declaration must concern the cause and surrounding
circumstances of the declarant’s death; FACTS:At the brink of death and with a voice she could hardly
(b) that at the time the declaration was made, the declarant hear, her father uttered the name “Toti.”
is conscious of his impending death;
(c) the declarant was competent as a witness (if he HELD: This is a DYING DECLARATION. Although he made no
survived); and express statement showing that he was conscious of his
(d) the declaration is offered in a criminal case for impending death, it was clear however, considering the fatal
Homicide, Murder, or Parricide where the declarant is quality of his injury and that he was barely heard by Ana when he
the victim. uttered accused-appellant's name, that his death was imminent.

Requisite #1: Declaration concerns the cause and surrounding On No. 3: Conduct and the circumstances at the time the declaration
circumstances of the declarant’s death was made:

Example: X, the husband, was shot while Y, the wife, was stabbed. Gerald was shot but he can still walk and talk. He went home to his
At the emergency room of the hospital, X said that it was Z who house, cleaned up his own wounds and went out to go to the
stabbed his wife. Then, he died. hospital. Along the way, he rode a taxi. The driver was a childhood
friend, Matteo who asked him what happened to him. He answered
Q: Can this qualify as a dying declaration? that Luis shot him but that he was okay. It was only a flesh wound.
A: NO. The statement is not a dying declaration because it pertains At the hospital, Gerald died after a couple of hours.
to the cause and surrounding circumstances of the wife’s death and
not of the declarant’s OWN death. Q: Is the statement of Gerald to Matteo a dying declaration?
A: NO, because he made the statement without having thought that
More often than not, the requisite relates to the inquiry of who he is already dying. He made the statement thinking that it was a
killed the declarant but it does not preclude information as to the flesh wound and the he would survive it. In order to be admissible,
motive and other conditions that attended the killing of the the declarant must have thought that he was about to die because it
declarant. is the fact that the declaration is “made in extremity, when the party
is at the point of death and every hope of this world is gone; when
(Example: When the victim, after being attacked uttered “A red car!” every motive to falsehood is silenced, and the mind is induced by
before he died, it could be a vital information on surrounding the most powerful consideration to speak the truth” that makes the
circumstance of his case.) declaration trustworthy.

This also means that a dying declaration may be used not only MARTURILLAS vs. PEOPLE
against the Accused but also in his favour:
Consciousness of an impending death need to be explicitly stated
nd
The Case of John Adams, 2 President of U.S.A.: The Boston but may be established by circumstantial evidence.
Massacre
The law does not require the declarant to state explicitly a
In 1770, a street confrontation, known as the Boston Massacre, perception of the inevitability of death. The perception may be
resulted in British soldiers killing five civilians. The accused soldiers established from surrounding circumstances, such as the nature of
were arrested on criminal charges. One of the victims, Patrick the declarant’s injury and conduct that would justify a conclusion
Carr, told his doctor before he died that the soldiers had been that there was a consciousness of impending death. Even if the
provoked. The doctor’s testimony helped John Adams to secure declarant did not make an explicit statement of that realization,
acquittals for some of the accused and reduced charges for the the degree and seriousness of the words and the fact that death
rest. occurred shortly afterwards may be considered as sufficient
evidence that the declaration was made by the victim with full
It may thus be used as proof of a justifying circumstance or as consciousness of being in a dying condition.
proof that another person committed the killing other than the
accused. DOCTRINES TO REMEMBER:
#1
PEOPLE vs. TANAMAN

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G.R. No. 71768 July 28, 1987 This means that, had the declarant survived, he would have not have
been disqualified or otherwise prohibited to testify.
 The victim need not state that he has lost all hope of
recovery. It is sufficient that circumstances are such as to Thus, the utterance of the deceased must have been one borne of
inevitably lead to the conclusion that at the time the personal knowledge.
declaration was made, the declarant would not expect to
survive the injury from which he actually died. GERALDO vs. PEOPLE
 The degree and seriousness of the wounds and the fact that G.R. No. 173608 November 20, 2008
death supervened thereafter constitute substantial evidence
of the victim's consciousness of his impending death. COMPETENCE OF A WITNESS MEANS HE HAD THE OPPORTUNITY
TO SEE ASSAILANT.
#2
Dying declaration has weight even if declarant did not die It has not been established, however, that the victim would have
immediately after his declaration: The fact that the declarant died 4 been competent to testify had he survived the attack. There is no
hours after his statement does not diminish the probative value of showing that he had the opportunity to see his assailant. Among
the dying declaration since it is not indispensable that the declarant other things, there is no indication whether he was shot in front.
expires immediately thereafter.
At all events, even if the victim’s dying declaration were
#3 admissible in evidence, it must identify the assailant with
PEOPLE vs. BAUTISTA certainty; otherwise it loses its significance.

It is the belief in impending death and not the rapid succession of Compare with:
death, in point of fact, that renders the dying declaration PEOPLE vs. VILLARIEZ
admissible.
The victim made a dying declaration about the person who shot
#4 him. The accused was convicted based on this and the SC affirmed
PEOPLE vs. RARUGAL alias “AMAY BISAYA” and appreciated the qualifying circumstance of treachery. It found
G.R. No. 188603 January 16, 2013 that the victim was shot at the back.

FACTS: On the night of October 19, 1998, at around 9:45 p.m., Atty. Espejo: Though there is a direct contrast between the ruling
while victim ArnelFlorendo (Florendo) was cycling along cases of Geraldo vs. People and People vs. Villariez, the difference
Sampaguita St., Brgy. Capari, Novaliches, Quezon City, Rarugal, here is factual. In Villariez (though the victim was also shot at the
with the use of a long double-bladed weapon, stabbed Florendo; back like in Geraldo), it did not say anything on whether the victim
thus, forcibly depriving him of his bicycle. Immediately thereafter, saw the attacker.
appellant hurriedly fled the scene. This incident was witnessed by
Roberto Sit-Jar, who positively identified appellant in court. Requisite #4: Offered in a Criminal Case for Homicide, Murder, or
Parricide where the declarant is the victim.
Florendo arrived home bleeding. He was quickly attended to by
his siblings, including his brother Renato. When Renato recounted Compare this requisite with what is stated in the codal provision:
the events of that night to the court, he testified that Florendo “in any case wherein his death is the subject of inquiry”
told him and his other relatives that it was Rarugal who had
stabbed him. They then took Florendo to Tordesillas Hospital but Atty. Espejo: The provision states that “in any case”. Could this mean
had to transfer him to Quezon City General Hospital, due to the that the dying declaration may be used in civil cases as well?
unavailability of blood. It was there that Florendo diedon October
26, 1998. A: No. On Art.2176 on quasi-delict for example. When a car
accidentally crashed to a pedestrian who eventually died, a dying
NOTE: declaration of the victim could not be used. The death here is not the
1. The victim was still alive after the stabbing incident. He subject of inquiry in a quasi-delict case. The fact in issue in a quasi-
had time to reach his house and confide in his brother, delict case is the fault or negligence.
witness Renato, that it was appellant who had stabbed
him. Though the provision states “in any case”, the SC has clarified
2. The victim also did not die immediately. (through jurisprudence) that dying declaration may only be used in a
3. He was stabbed on Oct. 19 and died on Oct. 26 Criminal Case for Homicide, Murder, or Parricide.

ISSUE: Is it a dying declaration? THE DECLARANT MUST HAVE NOT SURVIVED

HELD: It is of no moment that the victim died seven days from the The requirement of the Rules is that the statement is offered in a
stabbing incident and after receiving adequate care and case where the declarant’s death is the subject of inquiry. This
treatment, because the apparent proximate cause of his death, means actual death and does not apply to cases of mere
the punctures in his lungs, was a consequence of Rarugal’s unavailability such as when the patient is in a comatose condition or
stabbing him in the chest. merely “brain” dead. There is no dying declaration in cases of
homicide or murder in their attempted or frustrated stage.
Requisite #3: The declarant was competent as a witness
Query: Does the requirement of death include presumptive death?

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Anent this issue, two questions must be asked: The policemen, however, were unsuccessful in catching them and
when it became evident that they could no longer find them, they
First: Can the prosecution for unlawful killing be made without the continued patrolling the area. There they saw Januario lying on
victim being found? the street in front of Dom’s studio. As he was severely injured, the
A: Yes policemen immediately boarded Januario to the patrol vehicle and
brought him to the Zigzag Hospital. While inside the vehicle, SPO3
PEOPLE vs. ROLUNA Mendoza asked Januario who hurt him. He answered that it was
G.R. No. 101797 March 24, 1994 "Jay-R and his uncle" who stabbed him. The uncle turned out to be
the appellant herein, while Jay-R is his co-accused who remains at-
In the early case of People v. Sasota, the Court affirmed the large.
conviction of the accused for murder although the body of the
victim was not found or recovered. In said case, we ruled that in At the Zigzag Hospital, Januario was attended to by Dr. Rasa who
case of murder or homicide, it is not necessary to recover the found him in critical condition. Three fatal wounds caused by a
body of the victim or show where it can be found. It is enough that bladed weapon were found in Januario’s body which eventually
the death and the criminal agency causing death is proven. The caused his death.
Court recognized that there are cases where the death and Maria Castillo, for her part, testified on how she learned of what
intervention of the criminal agency that caused it may be happened to her husband, the victim herein, the amount allegedly
presumed or established by circumstantial evidence. stolen from her husband, as well as on the expenses and loss
incurred by reason of Januario’s death. She, further, quantified
Second: Can there be a situation where a dying declaration can be the sorrow and anxiety the family suffered by reason of such
made in circumstances where there is presumptive death? death.

(Note: The scenario below must have been a product of the creative As to the identity of the perpetrators, the court considered the
mind of Sir. This example is for your consideration.) victim’s response to SPO3 Mendoza’s question as to who
Mokong, Gerald and Tumulmol crash-landed in a deserted island. committed the crime against him as part of the res gestae, which
Before they were actually rescued, Mokongsaw Gerald clutching is an exception to the hearsay rule.As to appellant’s defense of
his stomach and saw that he appeared to be stabbed several alibi, the court gave more weight to the prosecution’s rebuttal
times. He then asked Gerald what happened and Gerald said that evidence that indeed the former was an actual resident of Mabini,
Tamulmol stabbed him repeatedly with a jungle knife. As he was Batangas.
saying this, a boat appeared at the horizon. Hoping for rescue,
Gerald swam towards the direction of the boat. A few moments On appeal, the CA affirmed the RTC decision. Contrary, however,
later, Gerald disappeared at the deeper part of the sea and was to the RTC’s conclusion, the appellate court considered Januario’s
never found again. After 4 years, Tamulmol was prosecuted for statement to SPO3 Mendoza, that the accused were the ones who
murder. stabbed him and took his wallet, not only as part of res gestae but
also as a dying declaration.
Q: Can the statement made by Gerald to Mokong prior to his
disappearance be considered Gerald’s dying declaration? ISSUE: WON there is a Dying Declaration

A: Yes. It has satisfied all of the four requisites. (see Palanas case HELD: Not all the requisites of a dying declaration are present.
for the requisites)
From the records, no questions relative to the second requisite
Q: What is the effect if the victim survives? was propounded to Januario. It does not appear that the declarant
A: If the victim survives but is unable to testify, the declaration can was under the consciousness of his impending death when he
no longer be considered a dying declaration. However, the made the statements. The rule is that, in order to make a dying
declaration may still be admitted as part of the res gestae. declaration admissible, a fixed belief in inevitable and imminent
death must be entered by the declarant. It is the belief in
PEOPLE vs. SONNY GATARIN impending death and not the rapid succession of death in point of
G.R. No. 198022 April 7, 2014 fact that renders a dying declaration admissible. The test is
whether the declarant has abandoned all hopes of survival and
FACTS: On the 3rd day of November 2004, at 8:00 o’clock in the looked on death as certainly impending. Thus, the utterances
evening, Umali was riding a bicycle on his way home when he saw made by Januario could not be considered as a dying declaration.
Januario being mauled by two persons opposite Dom’s Studio in
PoblacionMabini, Batangas. Upon seeing the incident, he stayed in However, even if Januario’s utterances could not be appreciated
front of the church until such time that the accused ran away and as a dying declaration, his statements may still be appreciated as
were chased by policemen who alighted from the police patrol part of the res gestae. Res gestae refers to the circumstances,
vehicle. facts, and declarations that grow out of the main fact and serve to
illustrate its character and are so spontaneous and
On the same night, SPO3 Mendoza and PO1 Jeffrey Jefferson contemporaneous with the main fact as to exclude the idea of
Coronel were on board their patrol vehicle performing their deliberation and fabrication. The test of admissibility of evidence
routine patrol duty when they met two men, later identified as as a part of the res gestae is, therefore, whether the act,
the accused, who were running at a fast speed. When asked why declaration, or exclamation, is so interwoven or connected with
they were running, the accused did not answer prompting the the principal fact or event that it characterizes as to be regarded
policemen to chase them. as a part of the transaction itself, and also whether it clearly
negates any premeditation or purpose to manufacture testimony.

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complete in itself. To be complete in itself does not mean that the


Atty. Espejo: One thing you need to take away from this case is that declarant must recite everything that constituted the res gestae of
if you are for the prosecution (having known the elements of a dying the subject of his statement, but that his statement of any given
declaration) there has to be positive testimony on all the requisites. fact should be a full expression of all that he intended to say as
conveying his meaning in respect of such fact.
FORM OF DYING DECLARATIONS
ADMISSIBILITY IS DIFFERENT FROM WEIGHT
PEOPLE vs. BOLLER What the law merely assures is admissibility. There is no assurance
G.R. No. 144222-24 April 3, 2002 that the dying declaration is automatically believed. If it is
controverted by other competent evidence, the dying declaration
A dying declaration may be oral or written. If oral, the witness may be set aside.
who heard it may testify thereto without the necessity of
reproducing the word of the decedent, if he is able to give the Take note that admissibility is different from believability.
substance thereof. An unsigned dying declaration may be used as
a memorandum by the witness who took it down. CRITICISM OF THE RULE
“Physical or mental weakness consequent upon the approach of
PEOPLE vs. COMILING death, a desire of self-vindication, or a disposition to impute the
G.R. No. 140405 March 4, 2004 responsibility for a wrong to another, as well as the fact that the
declarations are made in the absence of the accused, and often in
The dying declaration was made with the police investigators response to leading questions and direct suggestions, and with no
writing down the statement and thumbmarked later by the opportunity for cross-examination: all these considerations conspire
deceased when he was still alive. to render such declarations a dangerous kind of evidence.”
 Orenstein, Aviva (2010). “Her Last Words: Dying
It may be in the form of an affidavit for as long as the requisites are Declarations and Modern Confrontation Jurisprudenct”.
present. University of Illinois Law Review

BUT: A DEATHBED CONFESSION IS NOT A DYING DECLARATION


PEOPLE vs. PADRONES
G.R. No. 85823 September 13, 1990 Example 1: Luis, at his death bed, confessed to Rayver that he is the
father of Jessy’s child. He died 2 seconds later. During the
The victim's alleged ante-mortem statement is not in fact, an settlement of his estate, Jessy appeared in court to assert the rights
ante-mortem statement. It was executed on August 13, 1986, of her child with Luis and wanted to present Rayver to testify as to
when the deceased died on August 21, 1986. Luis’ admission of paternity. Can the legitimate children of Luis
object to the admissibility of Rayver’s testimony?
It bears to stress that a mere cursory examination of the three
signatures appearing on the three-page statement, in bold and A: Yes. The ground for objection is that the testimony is hearsay.
clear strokes with two of them occupying four inches of the page,
and in grand flourishes, pronounced and considered by the trial Example 2: Luis, at his death bed, confessed to Jessy’s daughter,
judge as a dying declaration, precludes any indication that the Lucy that he is her father and wanted to give her P 3 Million so that
signer thereof was under an impending death. Further, if the she can finish law school and take the bar. He died 2 seconds later.
deceased were truly on the point of death, he could not have had During the settlement of his estate, Lucy appeared in court and
the strength to affix three signatures as above described. wanted to testify as to Luis’ admission of paternity and the gift of P 3
Million. Can the legitimate children of Luis object to the admissibility
Atty. Espejo: In this case, the statement was actually a three-page of Lucy’s testimony?
statement. The SC also said that the declarant signed it in bold
strokes which would belie the seriousness of his wounds. Therefore, A: Yes. The grounds for objection are:
it could not have been made under the consciousness of an 1. The testimony is hearsay
impending death. It is inadmissible as a dying declaration. 2. Deadman’s Statute:

CAN NON-VERBAL ACTS BE USED AS DYING DECLARATIONS? “Section 23.Disqualification by reason of death or insanity
of adverse party. — Parties or assignor of parties to a case,
Example: While Gerald was lying in a pool of his own blood and or persons in whose behalf a case is prosecuted, against an
dying, he pointed with a very angry face at one of the bystanders, executor or administrator or other representative of a
Matteo. deceased person, or against a person of unsound mind,
upon a claim or demand against the estate of such
A: Not a dying declaration. It violates the DOCTRINE OF deceased person or against such person of unsound mind,
COMPLETENESS. A dying declaration is complete when it is a full cannot testify as to any matter of fact occurring before the
expression of all that the declarant wanted to say with regard to the death of such deceased person or before such person
circumstances of his death. (People vs. Comiling) became of unsound mind.”

PEOPLE vs. DE JOYA Note: There is already a claim on the deceased’s estate.
G.R. No. 75028 November 8, 1991 Hence, deadman statute applies.

It has been held that a dying declaration to be admissible must be

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Example 3: Luis, at his death bed, confessed to his daughter, Lucy, (c) the circumstances must render it improbable that a
that he killed Matteo, not Gerald who currently stands trial for motive to falsify existed.
Matteo’s murder. Luis died 2 seconds later. During the trial of
Matteo he wanted to present Lucy to testify as to the deathbed Atty. Espejo: On example 3, apply the above requisites. Luis is
confession of Luis. Can the prosecution object? already dead, so he would be unable to testify. The statement he
made to Lucy also concerns a fact cognizable by him. Finally, there is
A: Yes. The ground for the objection is that testimony is hearsay. not motive to falsify in court since he was about to die.

But would the court now overrule on sustaining the conviction? That Q: Bangs was charged with crime of kidnapping of Adonis, her
a hearsay evidence would now be used to acquit an accused? Is husband. One of the testimonies presented by the prosecution was
there a specific rule in Philippine law about deathbed confessions? that of Maja who testified that Adonis confided to her that he and
 In England, in R. vs. Gray (1841) Ir. Circ. Rep. 76, a death Sarah were having an affair. Undoubtedly, Adonis’ infidelity was
bed confession by a third person that he, not the accused, ample reason for Bangs to contemplate revenge. Consequently, the
had committed the murder charged was held admissible. trial court convicted Bangs based on the testimonies of the
 In the US, however, under Rule 804 of the Federal Rules, a witnesses. Was the testimony of Maja admissible as evidence?
deathbed confession can be admissible in court under the
right circumstances. If someone confesses knowledge of a A: Yes.Adonis’ revelation to Maja regarding his illicit relationship
crime and then dies or his condition worsens, the law does with Sarah is admissible in evidence pursuant to Section 38, Rule
not consider the statement to be hearsay and can be used 130. Declaration against interest includes all kinds of interest, that is,
in criminal trial. pecuniary, proprietary, moral or even penal.

Example: Adonis, having been missing since his abduction, cannot be called
James Brewer Case upon to testify. His confession to Maja, definitely a declaration
against his own interest, since his affair with Sarah was a crime, is
James Brewer was suffering from stroke and thought he was going admissible in evidence because no sane person will be presumed to
to die when he decided to come clean about his life. In 1977, tell a falsehood to his own detriment. (People vs. Bernal, G.R. No.
James, in his jealous rage, killed his neighbour, skipped bail, and 113685June 19, 1997)
then ran away with his wife and they took on new identities as the
Andersons. They were model citizen and even lead a Bible study Distinguish Admission against Interest from Declaration against
group. He confessed this in 2009 to the police on his deathbed. Interest:

Subsequently, he recovered. When he was already fit to stand LAZARO, ET. AL. vs. MODESTA AGUSTIN
trial, he was prosecuted. He was later found guilty of murder and G.R. No. 152364April 15, 2010
was sentenced to the death penalty. (Probable BQ)

Going back to Example 3: Admissions against interest are those made by a party to a litigation
or by one in privity with or identified in legal interest with such
Q: What is the ground for objection? party, and are admissible whether or not the declarant is available
A: That the testimony is hearsay. as a witness.

Q: Should the court overrule or sustatin the objection? Declarations against interest are those made by a person who is
A: Overrule. There is a rule that can be used to justify departing neither a party nor in privity with a party to the suit, are secondary
from the hearsay rule and that is DECLARATION AGAINST INTEREST: evidence, and constitute an exception to the hearsay rule. They are
admissible only when the declarant is unavailable as a witness.
Rule 130, Section 38. Declaration against interest. — The
declaration made by a person deceased, or unable to testify,
against the interest of the declarant, if the fact is asserted in the September 16, 2016
declaration was at the time it was made so far contrary to
declarant's own interest, that a reasonable man in his position Recap
would not have made the declaration unless he believed it to be We discussed already declaration against interest. What you need to
true, may be received in evidence against himself or his successors take note there are the requisites. Again, the reason why you make
in interest and against third persons. a declaration against interest, an exception to the hearsay, rule is
simple. The rationale is necessity and trustworthiness.
FUENTES, JR. vs. CA
G.R. No. 111692 February 9, 1996 HEARSAY and EXCEPTIONS CONTINUED

[On Sec. 38 of Rule 130] The admissibility in evidence of such Declaration against interest
declaration is grounded on necessity and trustworthiness.
Rule 130, Section 38. Declaration against interest. — The
There are three (3) essential requisites for the admissibility of a declaration made by a person deceased, or unable to testify,
declaration against interest: against the interest of the declarant, if the fact is asserted in the
(a) the declarant must not be available to testify; declaration was at the time it was made so far contrary to
(b) the declaration must concern a fact cognizable by the declarant's own interest, that a reasonable man in his position
declarant; and would not have made the declaration unless he believed it to be

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true, may be received in evidence against himself or his successors declarant is unavailable as a
in interest and against third persons. witness.

JZE: It is necessary because the person is already dead. He is no Act or Declaration about pedigree
longer able to testify by some incapacity that has befallen him or it is
also trustworthy in the sense that a reasonable man in such a Rule 130, Section 39. Act or declaration about pedigree. — The act
position will not make a declaration that is contrary to his interest or declaration of a person deceased, or unable to testify, in respect
had not the same be true. And under the circumstances he was to the pedigree of another person related to him by birth or
compelled to say it. It is simple as that. marriage, may be received in evidence where it occurred before the
controversy, and the relationship between the two persons is
Take note of the case of Fuentes vs. CA. We already discussed that shown by evidence other than such act or declaration. The word
last meeting. "pedigree" includes relationship, family genealogy, birth, marriage,
FUENTES, JR. vs. CA (1996) death, the dates when and the places where these fast occurred,
and the names of the relatives. It embraces also facts of family
The admissibility in evidence of such declaration is grounded on history intimately connected with pedigree.
necessity and trustworthiness.
JZE: Diba, during the semester, one of the first questions I asked you
There are three (3) essential requisites for the admissibility of a was, “when was your birthday?” Do you know exactly when was
declaration against interest: your birthday? Kinsa ganin tong akong gipangutana? Ikaw to?
(a) the declarant must not be available to testify; (Pointing to Ms. Queenie R.) Kabalo na ka? What I’m trying to point
(b) the declaration must concern a fact cognizable by the out here is the fact that, technically speaking, your knowledge of
declarant; and when you were born is actually hearsay because remember that
(c) the circumstances must render it improbable that a motive to information is NOT hearsay only when it is based on your own
falsify existed. perception. Were you able to perceive the time when you were born
or about to be born? Of course not. Wala pa kay buot. Well, unless
Let me just explain this example that we skipped last meeting. you claim otherwise. Then you would have to prove to me that you
were really able to perceive that you were coming out of your
Example: Bangs was charged with the crime of kidnapping Rrrramon, mother. Wala kay perception ana.
her husband. One of the testimonies presented by the prosecution
was that of Maja who testified that Rrramon confided to her that he So, your information about your birth definitely comes from
and Sarah were having an affair. Undoubtedly, Rrramon’s infidelity someone else who told you that your birthday is on this day. What
was ample reason for Bangs to contemplate revenge. Consequently, reinforces that is the fact that many of us or at least 90% of us really
the trial court convicted Bangs based on the testimonies of the have families who celebrate our birthdays. That is the basis of what I
witnesses. Was the testimony of Maja admissible as evidence? have been telling you: that you have no personal knowledge of your
birthday.
Yes. (Now remember that the declarant here is Rrramon. That
declaration was used as evidence.) Rrramon’s revelation to Maja But because clearly, it’s something that relates to your pedigree
regarding his illicit relationship with Sarah is admissible in evidence, because pedigree relates to birth, or includes birth, then it becomes
pursuant to Section 38, Rule 130 of the Revised Rules on Evidence. an exception to the hearsay rule. More often than not, it will be
Declaration against interest includes all kinds of interest, that is, accepted as true even if it is secondhand information.
pecuniary, proprietary, moral or even penal. Rrramon, having been
missing since his abduction, cannot be called upon to testify. His REQUISITES UNDER SECTION 39
confession to Maja, definitely a declaration against his own interest,
since his affair with Sarah was a crime, is admissible in evidence (1) The actor or declarant is dead and unable to testify.
because no sane person will be presumed to tell a falsehood to his (2) The act or declaration is made by a person related to the
own detriment. (People v. Bernal, G.R. No. 113685, June 19, 1997) subject by birth or marriage. (consanguinity or affinity)
(3) the relationship between the declarant or the actor and the
This is very important and I am going to emphasize this once again. subject is shown by evidence other than such act or declaration

Distinguishing Admission against Interest from Declaration against Ex. Kanang the declarant said na iya nang paryente si X.
Interest That would now be the basis for X in claiming the
relationship.
LAZARO, ET.AL. vs. MODESTA AGUSTIN (2010)
(Definitive case as to Section 38) Now, in a case where the relationship between X and the
declarant, and the declarant’s family is in issue, let’s say
Admissions against interest Declarations against for example paternity suits or suits of filiation, would that
are those made by a party to a interest are those made by a declaration by itself be sufficient to prove the fact in issue?
litigation or by one in privity person who is neither a No. There must be corroborative evidence or evidence
with or identified in legal party nor in privity with a aliunde to prove such a relationship.
interest with such party, and party to the suit, are
are admissible whether or not secondary evidence and (4) The act or declaration was made ANTE LITEM MOTAM (prior to
the declarant is available as a constitute an exception to the controversy; cannot be ‘during’ and cannot be in anticipation of
witness. the hearsay rule. They are litigation/ you are not planting the evidence)
admissible only when the

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Genealogy FACTS: Born on June 8, 1999, Arhbencel claimed to have been


A line of descent traced continuously from an ancestor. begotten out of an extramarital affair of petitioner with Araceli;
Simply, lineage. (Do you remember the lolo sa imong lolo? that petitioner refused to affix his signature on her Certificate of
Story about great grand father.) Birth; and that, by a handwritten note dated August 7, 1999,
petitioner nevertheless obligated himself to give her financial
th th
In the olden times, people really keep track of family support in the amount of P1,500.00 on the 15 and 30 days of
lineage and write them down in family heirlooms. (It’s a each month beginning August 15, 1999.
big thing.) However, nowadays, what we know of our
lineage comes specifically from mere oral traditions. Q: Was the pedigree of Archbencel sufficiently established?
A: First, the SC summarized the rules as follows:
Birth 1. In Pe Lim v. CA, a case petitioner often cites, we stated
Recall that you do not really have personal knowledge of that the issue of paternity still has to be resolved by such
your birthday. Whatever you know about this was merely conventional evidence as the relevant incriminating
told to you, making it hearsay. verbal and written acts by the putative father.
2. Under Article 278 of the New Civil Code, voluntary
Revisiting an example recognition by a parent shall be made in the record of
Luis, at his death bed, confessed to Rayver that he is the father of birth, a will, a statement before a court of record, or in
Jessy’s child. He died 2 seconds later. During the settlement of his any authentic writing. To be effective, the claim of
estate, Jessy appeared in court to assert the rights of her child with filiation must be made by the putative father himself and
Luis and wanted to present Rayver to testify as to Luis’ admission of the writing must be the writing of the putative father. A
paternity. Can the legitimate children of Luis object to the notarial agreement to support a child whose filiation is
admissibility of Rayver’s testimony? admitted by the putative father was considered
acceptable evidence. (Because he signed it clearly)
Q: What’s the ground for objection? 3. Letters to the mother vowing to be a good father to the
A: THAT THE TESTIMONY IS HEARSAY child and pictures of the putative father cuddling the
Q: Should the court sustain the objection? child on various occasions, together with the certificate
It’s now time to apply Section 39. of live birth, proved filiation.
A: YES, if Jessy cannot present evidence other than the act 4. A student permanent record, a written consent to a
or declaration of Luis that he is the father of her child. (You father’s operation, or a marriage contract where the
need evidence aliunde. It has to be proven or corroborated putative father gave consent, CANNOT be taken as
by evidence other than the act or declaration itself.) authentic writing. Standing alone, neither a certificate of
baptism nor family pictures are sufficient to establish
Q: WHAT SHOULD JESSY’S COUNSEL DO? filiation. (But we are talking about filiation here. Filiation
A: Counsel can ask to have the testimony of Rayver regarding Luis’ is not necessarily pedigree. You need to make that
statement conditionally admitted. (Right now, you cannot admit the distinction.)
corroboration. You’re presenting the witness right now. You cannot
corroborate it with evidence assuming that person is your first The Handwritten note:
witness. So you ask the court that it be conditionally admitted. “I, Ben-Hur C. Nepomuceno, hereby undertake to give
and provide financial support in the amount of P1, 500.00 every
Recall: fifteenth and thirtieth day of each month for a total of P3,000.00 a
CONDITIONAL ADMISSIBILITY – evidence is admissible only month starting Aug.15, 1999, to Arhbencel Ann Lopez, presently in
in dependence upon other facts. It is received on the the custody of her mother Araceli Lopez without the necessity of
express assurance of counsel, when objection is demand, subject to the adjustment later depending on the needs of
manifested, that other facts will be duly presented at a the child and my income.”
suitable opportunity before the case is closed.
Q: Is that an act or declaration about pedigree? Will that be
So, conditionally, the testimony will be admitted subject to the sufficient to establish the filiation of the child claiming support?
condition that counsel or the party admitting such Does the note indicated anywhere therein that he is admitting to
supposedly admissible evidence will make a condition to his parenthood toward the child? What he concedes is that he is
other admissible evidence. So i-corroborate gyud niya. He going to provide financial support depending on the needs of “the
has to present other evidence, i.e. documentary evidence child” (not my child) and “my income.” Clearly advised by lawyer.
proving the pedigree haha

Suppose the court conditionally admits the testimony… HELD: The above quoted note does not contain any statement
But Jessy is unable to present corroborative evidence, what whatsoever about Arhbencel’s filiation to petitioner. It is,
is the remedy of her opponents? therefore, not within the ambit of Article 172 (2) vis-à-vis Article
A: They can move to strike the testimony on the ground 175 of the Family Code which admits as competent evidence of
that the condition for admitting the hearsay evidence was illegitimate filiation an admission of filiation in a private
not fulfilled. handwritten instrument signed by the parent concerned.
Remember this principle of conditional admissibility.
The note cannot also be accorded the same weight as the notarial
Now here’s an interesting case. agreement to support the child referred to in Herrera v. Alba. For it
NEPOMUCENO vs. LOPEX (2010) is not even notarized. And Herrera instructs that the notarial
agreement must be accompanied by the putative father’s

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admission of filiation to be an acceptable evidence of filiation.


Here, however, not only has petitioner not admitted filiation a. If the victim is alleged to be below 3 years of age and what is
through contemporaneous actions. He has consistently denied it. sought to be proved is that she is less than 7 years old;
b. If the victim is alleged to be below 7 years of age and what is
The only other documentary evidence submitted by Arhbencel, a sought to be proved is that she is less than 12 years old;
copy of her Certificate of Birth, has no probative value to establish c. If the victim is alleged to be below 12 years of age and what is
filiation to the petitioner, the latter not having signed the same. sought to be proved is that she is less than 18 years old… In the
absence of a certificate of live birth, authentic document, or the
Family Reputation or Tradition Regarding Pedigree testimony of the victim’s mother or relatives concerning the
victim’s age, the complainant’s testimony will suffice provided
Rule 130, Section 40. Family reputation or tradition regarding that it is expressly and clearly admitted by the accused.
pedigree. — The reputation or tradition existing in a family
previous to the controversy, in respect to the pedigree of any one of Family Bibles
its members, may be received in evidence if the witness testifying Not every bible belonging to a family, even if handed down from
thereon be also a member of the family, either by consanguinity or generation to generation, can be considered as proof of pedigree
affinity. Entries in family bibles or other family books or charts, under Section 40.
engravings on rings, family portraits and the like, may be received
as evidence of pedigree. It will be admissible only if it is a bible that has spaces reserved for
recording of important family events. This is because of the
One of the things you will have to notice here immediately is: “who’s presumption that a family will not put an entry there unless they
testifying?” The witness must necessarily be a member of the family. have personal knowledge of what happened. Kahibalo gyud sila nga
But in Section 39, what did you notice? Anybody can be the witness kani siya natawo sa kani nga pamilya ining adlawa. So isuwat na nila.
there provided that the declarant is the one who is related to the It’s a statement of their belief regarding the pedigree of the person.
subject of pedigree; kadtung nagaclaim ug relationship. That’s the And then it’s handed down from generation to generation, which
main difference between Section 39 and 40. means that everybody who followed will of course have that belief
that their ancestor was born on a particular date and that they are
REQUISITES UNDER SECTION 40 related to that ancestor.

1. There is controversy in respect to the pedigree of any member (Pictures of samples shown i.e. family charts/family trees of Black
of the family; and Padilla Families, engravings on rings, family portraits)
2. The reputation or tradition of the pedigree of the person
concerned existed previous to the controversy (something that JZE: So, somebody can bring the ring and testify to what it says; that
did not just come up because a case was filed; must exist ante Rrramon and Lailanie were married at a certain time. That can prove
litem motam and not in anticipation of litigation. Kaniadto pa their marriage.
lang, wala pay kaso, naa nay nagclaim na related na siya sa akoa
o sa pamilya.); and You can use family portrait to be part of the family tradition or
3. The witness testifying to the reputation or tradition regarding reputation regarding pedigree.
pedigree of the person concerned MUST BE A MEMBER of the
family of said person either by consanguinity or affinity. DOCUMENTARY/OBJECT EVIDENCE
Kini ang daghan. In one case, what they presented to prove the
TWO PARTS filiation of a person would be letters of introduction to relatives. It
1. Testimony Evidence of Pedigree (testimony of a family member was custom before that when you are travelling let’s say to Manila,
based on the reputation existing within the family about the gikan ka ug probinsya, magsuwat ang imong relative, “Kaning
pedigree of a person under consideration. He may not be tawhana, kini siya ako ni siyang pag-umangkon, anak ni Procopio.
testifying based on personal knowledge but this is the Unta imo ni siyang tabangan inig naa na siya dinha sa Manila.”
reputation existing in the family. It is a statement of the family’s
belief as to the pedigree of a person.) Can the following private documents be considered under the
2. Documentary or Object Evidence of Pedigree (entries in family second part of Section 40? SC: Not really.
Bibles or other family books or charts, engravings on rings,  Letters of introduction to possible relatives,
family portraits and the like) recommendation letter for employment from a putative
relative, photograph taken at a birthday party, letter of
Testimony introduction from former Vice President Fernando Lopez
Recall the case of People vs. Pruna (Rules on how to prove the age of (relative of putative father) addressed to then United
a victim in the case of rape for example) and read the case of States Consul Vernon McAnnich.
PEOPLE vs. SARIEGO, G.R. No. 203322, February 24, 2016. The SC is
still using the ruling in People vs. Pruna. It is really good law. JISON vs. CA (1998)

If the certificate of live birth or authentic document is shown to have The second portion of this provision, in light of the rule of ejusdem
been lost or destroyed or otherwise unavailable, the testimony, if generis, is limited to objects which are commonly known as family
clear and credible, of the victim’s mother or a member of the family possessions, or those articles which represent, in effect, a family’s
either by affinity or consanguinity who is qualified to testify on joint statement of its beliefs as to the pedigree of a person. These
matters respecting pedigree such as the exact age or date of birth of have been described as objects openly exhibited and well known to
the offended party pursuant to Section 40, Rule 130 of the Rules on the family, or those which, if preserved in a family, may be
Evidence shall be sufficient under the following circumstance: regarded as giving a family tradition. Other examples of these

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objects are inscriptions on tombstones, monuments or coffin declarant, who is already reputation or tradition covering
plates. dead or unable to testify, has matters of pedigree. (It is already
said concerning the pedigree an existing reputation)
Plainly then, the Exhibits, as private documents not constituting of the family
“family possessions” as discussed above, may not be admitted on
the basis of Rule 130, Section 40. JZE: Recall the exceptions to the res inter alias acta rule. Admission
by a co-conspirator. Remember that the conspiracy must be proved
“These have been described as objects openly exhibited and well by other proof other than the act or declaration itself. Same with a
known to the family x x x” – i.e. albums partnership. The partnership must be proved by evidence other than
by such act or declaration. Same thing with Section 39: the
Tombstones relationship must be proved other the act or declaration; Section 40
Why can these be used as evidence of pedigree? For the simple no need because the person testifying is himself a member of the
reason that a tombstone has been used [?] since time immemorial. family.
In certain cases, inscribed there is the date of birth, and the date of
death. Naa gyud na siya sa tombstones. In Section 39, you can even say that the information relating to the
pedigree became relevant only because a person deceased and
Monuments unable to testify made that particular declaration. Without it there is
What kind are we talking about? Family monuments. no problem; there is no controversy whatsoever.

Coffin plates In Section 40, existing na nang reputation or tradition covering


Dili na uso karon. It’s expensive. What substitute these now are matters of pedigree.
kadtung nakabutang bitaw na “Cosmopolitan…date of birth, age,
death, internment, mass on…” Final Note about Section 40

Q: Why is it that tombstones, for example, can be considered as It is the common reputation in the family, and not the common
secondary evidence of pedigree, as proof at least of the entries reputation in the community, that is a material element of evidence
there (i.e. date of birth, date of death)? going to establish pedigree. (So importante na i-limit nimo siya sa
A: Because it is something that is very important to the family na family. The courts will not care as to what the community thinks
kung naa gani mali, usabon gyud. So there is a presumption that it is because if the rule is otherwise, Grace Poe is already the daughter of
correct. Ferdinand Marcos. Diba? Because that is what the community
believes.) Thus, matters of pedigree may be proved by reputation in
Family Monument the family, and not by reputation in the neighborhood or vicinity,
It is bigger than a tombstone. It will usually indicate kung pila ka except where the pedigree in question is marriage which may be
buok nga family members and naka-bury dira. proved by common reputation in the community.

(Picture of ribbons with family members’ names inside coffin was Important Cases
shown; prevalent in the Philippines. Can it be used as evidence of  Tecson, et. al. vs. Comelec, FPJ (G.R. Nos. 161434, 161634
pedigree? & 161824, March 3, 2004)
JZE: To my mind, yes, it can be circumstantial evidence to pedigree. o What proof of pedigree allowed FPJ to run for
Why? Because a family, especially in the Philippines, we make a president despite questions regarding his
distinction as to illegitimate and legitimate filiation. Dili nimo citizenship?
ibutang ang pangalan dira if you are not of the belief that that  Tison vs. CA (G.R. No. 121027, July 31, 1997)
person is your relative or relative of the deceased. I believe it can be o Read this for Sections 39 and 40 (If you are going
used as evidence even if it is not of the same league as a tombstone, to read only case and one case only. It’s the
a family monument or a coffin. definitive case for these provisions.)

Distinguish (Both refer to pedigree) TISON vs. CA (1997)

Section 39 Section 40 The general rule, therefore, is that where the party claiming seeks
Act or declaration about Family reputation or tradition recovery against a relative common to both claimant and
pedigree regarding pedigree declarant, but not from the declarant himself or the declarant’s
Witness need not be a estate, the relationship of the declarant to the common relative
member of the family. may not be proved by the declaration itself (JZE: evidence aliunde).
Witness is necessarily a member There must be some independent proof of this fact. As an
(Enough that somebody
of the family exception, the requirement that there be other proof than the
uttered a declaration made by
a family member) declaration of the declarant as to the relationship, does not apply
Relation of the declarant and where it is sought to reach the estate of the declarant himself and
the person subject of inquiry The witness is the one to whom not merely to establish a right through his declarations to the
must be established by the fact relates, it is not property of some other member of the family.
independent evidence. necessary for him to establish by
(Evidence aliunde; independent evidence his JZE: That is why you have to read this. Why did the Supreme Court
independent corroborative relationship to the family make that distinction when in fact they were referring to practically
evidence) the same type of situation covered by Section 39. Nganung nay
Testimony is about what Testimony is about family evidence aliunde sa is aka case na kinahanglan ug nganong dili

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kinahanglan in the other case? That is for me to know and for you to It is necessary to admit this into evidence because of the inherent
find out. Basaha na ninyo. difficulty in obtaining evidence that can be taken from common
reputation.
Common Reputation
It is trustworthy because (everybody believes it) of
Rule 130, Section 41. Common reputation. — Common reputation (1) The presumption that the public is conversant with the fact to
existing previous to the controversy, respecting facts of public or be so proved because of their general interest in them, and
general interest more than thirty years old, or respecting marriage (2) The fact that any error in such evidence can easily be corrected
or moral character, may be given in evidence. Monuments and by other testimony due to the public’s interest in such fact.
inscriptions in public places may be received as evidence of
common reputation. TRINIDAD vs. CA (1998)

(Revelation na common reputation ra diay sa city nang Uyangguren Attendance in wedding and baptisms where a man and a woman
street kay Ramon Magsaysay diay na siya, sama sa Claveria na C.M. purport themselves to be husband and wife evidence of common
Recto diay. Well, kay before, Uyangguren and Claveria gyud na sila reputation regarding marriage.
sa una, named after some well-known individuals. Na- change na
ang names pero kay common reputation na man sa city na Res Gestae
Uyangguren and Claveria na sila, mao nang they are still referred as
such.) Rule 130, Section 42. Part of res gestae. — Statements made by a
person while a startling occurrence is taking place or immediately
(Magellan’s cross…original casing lang diay sa cross.) prior or subsequent thereto with respect to the circumstances
(Calamba, Laguna… Birth place of Dr. Jose Rizal. We know this thereof, may be given in evidence as part of the res gestae. So,
because of common reputation…Location of Register of Deeds as also, statements accompanying an equivocal act material to the
common reputation of people there. Unahan sa balay ni Rizal, issue, and giving it a legal significance, may be received as part of
muliko ka sa wala, naay daghang punerarya, then Register of the res gestae.
Deeds.)
RES GESTAE (things done)
What is common reputation?
It is the definite opinion of the community in which the fact to be When you talk about res gestae, what clearly lingers in your head is
proved is known or exists. It means the general or substantially the fact that it is a statement made during a “startling” occurrence.
undivided reputation, as distinguished from a partial or qualified
one, although it need not be unanimous. (Regalado, Vol. 11, p. 787, (Recitation with a big bang from sir. He made a new best friend.
2008 ed.) Haha)

JZE: So not everybody would know that Uyangguren is actually JZE: Kung makakita ka ug butang o maka-experience ka ug isa ka
Ramon Magsaysay Avenue or that Claveria is actually C.M. Recto. butang that would normally elicit a reaction because of surprise,
Magallanes is actually Pichon. what usually comes out of your mouth is what comes natural. Like,
“pak!” Nakuratan ka. Maghuna-huna pa ba ka ug, “unsa kaha ang
Note: As a general rule, the reputation of a person should be that akong reaction?” You don’t. What comes out of your mouth is
existing in the place of his residence; it may also be that existing in naturally truthful. When you fall down, you yell out in pain. You don’t
the place where he is best known. contemplate anymore if what you should say is, “aray” or “ouch.”
Lol. It’s a spontaneous reaction. That is precisely what res gestae is
REQUISITES UNDER SECTION 41 all about.

1. The facts must be of public or general interest and more than A startling occurrence contemplated in Section 42 could be anything.
30 years old; Like when you witnessed a person being shot, that is a startling
2. The common reputation must have been ancient, i.e. 30 years occurrence. When you are asked what you saw immediately
old; thereafter, or while the startling occurrence is taking place, what
3. The reputation must have been one formed among a class of would usually come out of your mouth is the truth. You would have
persons who were in a position to have some sources of no time to fabricate. So there is that all important element of
information and to contribute intelligently to the formation of spontaneity.
the opinion; and
4. The common reputation must have been existing previous to JZE: Again, this is admitted in evidence because of necessity and
the controversy. trustworthiness.

JZE: So why do we admit evidence of common reputation despite the Necessity and Trustworthiness
fact that it is hearsay? Hearsay man siya. There is necessity because, due to the unavailability of the
declarant, there is otherwise no way to know the existence and
Rationale condition of the declarant. (Like when it was supposed to be a dying
Again, the evidence of common reputation is admissible on grounds declaration but the person did not die; he was in comatose and he
of NECESSITY and TRUSTWORTHINESS. cannot testify. But before he was in comatose, immediately after the
startling occurrence [ex. He was shot], and he uttered who his
assailant was, that would mean that it cannot be admitted as a
dying declaration but it can be admitted as part of the res gestae.)

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4. the presence or absence of intervening events between the


There is trustworthiness because this exception presupposes a occurrence and the statement relative thereto (like when you
declaration made out of instinct and spontaneity and the lack of made the statement, naa na ba kay naistorya na tao who might
opportunity to contrive or concoct a story. have influenced the way you interpret the situation);
5. the nature and the circumstances of the statement itself.
What are admissible as part of the res gestae?
 Statements made by a person while a startling occurrence Dying Declaration vs. Res Gestae
is taking place or immediately prior or subsequent thereto,
with respect to the circumstances thereof; and Dying Declaration (DD) Res Gestae (RG)
 Statements accompanying an equivocal act material to the A sense of impending death
issue and giving it a legal significance. It is the event itself which speaks.
takes the place of an oath and
(You are merely reacting to the
the law regards the declarant
event)
FIRST PART – Excited Utterances as testifying.
May be made by the victim or
REQUISITES Can be made by the victim the killer after or during the
only killing or by a 3rd person
1. The principal act, the res gestae, is a startling occurrence (anybody)
(something out of the ordinary); Confined to matters occurring May precede, or accompany or
2. The statements were made before the declarant had time to after the homicidal act follow the principal act
contrive or devise (because time changes perception); and Justified by trustworthiness,
3. The statements concern the occurrence in question and its Justification is the spontaneity of
being given by the person
immediately attending circumstances. (So if you exclaimed the statement. (No time to
who was aware of his
something; you made an exciting utterance that is not related contrive)
impending death
to the principal fact, the startling occurrence or the res gestae, Declarant need not die. A
then it is immaterial and irrelevant and should not be admitted statement inadmissible as DD
into evidence.) Declarant must die
may be admissible as part of the
(People vs. Guting, G.R. No. 205412, September 9, 2015) RG.

Startling Occurrence SECOND PART – Verbal/Equivocal Acts


There is no standard form of human behavioral response to a
shocking incident (mag-vary gyud siya), a startling occurrence or a Statements accompanying equivocal acts – Equivocal means
frightful experience. ambiguous; capable of different interpretations.

The workings of the human mind under emotional stress are (Sir JZE shows an example by giving a money bill to Ms. Lomondot
unpredictable, such that people react differently to similar without saying anything…Equivocal siya. It could mean anything
situations: some may shout; some may faint; some may be shocked under the law i.e. loan, donation, payment of purchase price of a
into insensibility; and others may even welcome the intrusion. sale, or damages [hahaha])
(Some might act like freaking maniacs… insert pic of Coco Martin
and Maja Salvador) JZE: What if when I gave her money, I said, “You pay me back the
money next month,” there’s an equivocal act which without the
MANULAT vs. PEOPLE (2015) statement on my part would clearly be susceptible to different
interpretations. So that statement, when heard by somebody and
Two tests in applying the res gestae rule: repeated by a witness, will be admissible even if technically it’s
(a) the act, declaration or exclamation is so intimately interwoven hearsay. Why? Because it is a verbal act. It accompanies an
or connected with the principal fact or event that it equivocal act and gives it a legal significance.
characterizes as to be regarded as a part of the transaction
itself; and A witness testifies on the stand for the plaintiff in a collection case
(b) the said evidence clearly negatives any premeditation or where the defendant denies having borrowed P10, 000 from the
purpose to manufacture testimony. (ELEMENT OF plaintiff. The debt is not evidenced by a promissory note because
SPONTANEITY). plaintiff claims that defendant had orally borrowed money from him
in the past and had always paid. This time he refuses to pay. The
Spontaneity witness testifies that one year ago he saw the plaintiff give money to
There is no hard and fast rule by which spontaneity may be the defendant. And that he hears the plaintiff say that, “Here’s the
determined although a number of factors have been considered, money you are borrowing from me.” Further, he said that he heard
including, but not always confined to: the defendant say, “Thank you. I will pay one year after.”
[Here, the equivocal act of handing the money was given significance
1. the time that has lapsed between the occurrence of the act or by the statement of the plaintiff.]
transaction and the making of the statement (magchange
imong recollection); REQUISITES
2. the place where the statement is made (like if the statement
was made where the startling occurrence took place or 1. The fact or occurrence characterized must be equivocal;
somewhere where he’s comfortable na); 2. The verbal act must characterize or explain the equivocal act;
3. the condition of the declarant when the utterance is given 3. The equivocal act must be relevant to the issue; and
(relax na ba siya or agitated pa);

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4. The verbal acts must be contemporaneous with the equivocal


act (meaning, at about the same time). FACTS: On December 8, 1994, at around 12:30 to 1:00 in the
afternoon, seven (7) members of the Sigma Rho fraternity were
Excited Utterances vs. Verbal Acts (possible Bar question) eating lunch at the Beach House Canteen, near the Main Library of
the University of the Philippines, Diliman, when they were attacked
Excited Utterances Verbal Acts by several masked men carrying baseball bats and lead pipes.
Principal fact is a startling Principal fact is an equivocal Some of them sustained injuries that required hospitalization. One
occurrence act of them, Dennis Venturina, died from his injuries.
Statement may precede,
Statement must accompany
accompany or succeed the According to Leandro Lachica, Grand Archon of Sigma Rho
the equivocal act Fraternity, he looked around when Venturina shouted, and he saw
startling occurrence
Statement need not Statement must explain the about ten (10) men charging toward them. The men were armed
necessarily explain the principal fact and give it legal with baseball bats and lead pipes, and their heads were covered
principal fact significance with either handkerchiefs or shirts. Within a few seconds, five (5)
of the men started attacking him, hitting him with their lead pipes.
Cases During the attack, he recognized one of the attackers as Robert
 Golden (Iloilo) vs. Pre-Stress (G.R. No. 176768, January 12, Michael Beltran Alvir because his mask fell off. Other members of
2009) Sigma Rho were able to identify some of the attackers, members of
o Res gestae in a Civil Case for Replevin the Scintilla Juris fraternity, allegedly because some of the
o There’s this warehouse. Somebody withdrew attackers either took their masks or some of them did not wear
stocks stored there. The employees of the masks at all.
warehouse took note of what was taken. It
wasn’t signed; just scribbled onto a piece of According to the testimony of U.P. Police Officer Salvador, when he
paper. The SC said that is a statement which arrived at the scene, he interviewed the bystanders who all told
explains an equivocal act. What is the equivocal him that they could not recognize the attackers since they were all
act? Kadtong pagkuha sa mga stocks. That is masked. This, it is argued, could be evidence that could be given
admissible in evidence as part of the res gestae. part of the res gestae.

 People vs. Sace (G.R. No. 178063, April 5, 2010) (Why is this important? If the res gestae statements of the
o The res gestae statement may come from the bystanders were to be admitted and believed, it may cast
accused himself. reasonable doubt on the supposed positive identification of the
o Naa siyay gipatay nga tao. When he was accused by the victims.)
apprehended, he was still in shock, naglupad pa
ang huna-huna. When he was asked if he did it, HELD: There is no doubt that a sudden attack on a group peacefully
he said, “Yes, I did it.” Then the police officer eating lunch on a school campus is a startling occurrence.
heard it, sat on the witness stand and repeated Considering that the statements of the bystanders were made
what the accused said. However, according to immediately after the startling occurrence, they are, in fact,
the accused, he never said anything. SC said that admissible as evidence in res gestae.
what the police witness was testifying on is
actually part of the res gestae, specifically the In People vs. Albarido, however, this Court has stated that “in
first part. Excited utterance, even if you are the accord to ordinary human experience: “x x x persons who witness
assailant, it is still startling to you because you an event perceive the same form their respective points of
don’t kill people every day. reference. Therefore, almost always, they have different accounts
of how it happened. Certainly, we cannot expect the testimony of
 Marturillas vs. People (G.R. No. 163217, April 18, 2006) witnesses to a crime to be consistent in all aspects because
o The shooting itself is a startling occurrence. different persons have different impressions and recollection of
o The husband who was shot was still alive and the same incident x x x.”
coherent when he told his wife, “Si Kapitan, si
Kapitan.” Sooner rather than later, he died. That The statement made by the bystanders, although admissible, have
is a startling occurrence and whatever he said little persuasive value since the bystanders could have seen the
can be used as part of the res gestae. So also events transpiring at different vantage points and at different
kadtong gi-ingon sa iyang asawa na, “Kapitan, points in time. Even Frisco Capilp, one of the bystanders at the
kapitan, nganong gipatay nimo akong asawa” is time of the attack, testified that the attackers had their masks on
also a res gestae statement because it is startling at first, but later on, some remained masked and some were
to see your husband about to die. So that can be unmasked.
considered as part of the res gestae.
When the bystanders’ testimonies are weighed against those of
 People vs. Feliciano (G.R. No. 196735, May 5, 2014) the victims who witnessed the entirety of the incident from
o What prevails between res gestae (which is beginning to end at close range, the former becomes merely
admissible, reliable and trustworthy according to corroborative of the fact that an attack occurred. Their account of
jurisprudence) and positive identification? the incident, therefore, must be given considerably less weight
Positive identification. than that of the victims.

PEOPLE vs. FELICIANO (2014)

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JZE: To my mind, it all boils down to what prevails, positive evidence


or negative evidence? Diba positive evidence: positive identification. REPUBLIC VS. MANGOTARA (2010)
When the bystanders were asked, they said wala sila kaila. They
didn’t know: that’s negative evidence. So what prevails? Positive The admissibility of baptismal certificates absent the testimony of
identification. the officiating priest or the official recorder, was settled, thus –

PEOPLE vs. PASCUAL (2009) xxx the entries made in the Registry Book may be considered as
entries made in the course of the business under Section 43 of Rule
The statements of accused-appellant’s wife, Divina, immediately 130, which is an exception to the hearsay rule. The baptisms
after the fateful incident all the more convince the Court as to the administered by the church are one of its transactions in the
accused-appellant’s guilt. Part of the res gestae and admissible in exercise of ecclesiastical duties and recorded in the book of the
evidence as an exception to the hearsay rule were Divina’s church during the course of its business.
utterances to Gorospe after seeing the dead and raped body of the
victim, i.e.. “May nangyari sa itaas at galing doon si Boyet,” and her Q: Is there an instance where business entries may be admitted in
subsequent narration of seeing the accused-appellant going out of evidence even where the declarant is alive?
the victim’s room and running away therefrom.
A: The entries will not be admitted as an exception to the hearsay
rule, but they may nevertheless be availed of by said entrant as a
September 21, 2016 memorandum to refresh his memory while testifying on the
transactions reflected therein.
Business Records Exception
We’ll go to that kang mga Present Recollection recorded and so on
Rule 130, Section 43. Entries in the course of business. – Entries and so forth, these are quite technical aspects that we need to
made at, or near the time of transactions to which they refer, by a discuss still.
person deceased, or unable to testify, who was in a position to know
the facts therein stated, may be received as prima facie evidence, if Entries in Official Records
such person made the entries in his professional capacity or in the
performance of duty and in the ordinary or regular course of Rule 130, Section 44. Entries in official records. – Entries in official
business or duty. 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 especially
What you need to remember here would be that being an exception enjoined by law, are prima facie evidence of the facts therein stated.
to the hearsay rule, the same rationale of necessity and
trustworthiness are applicable. When we say “prima facie”, once that it is established, it will stand
unless it is rebutted by contrary evidence.
Necessity. Why? Because the declarant or the proper witness is
already deceased or unable to testify for reasons that we will go to REQUISITES UNDER SECTION 44
later on.
1. Entries were made by a public officer in the performance of his
Trustworthy, because the presumption is something is done in the duties or by a person in the performance of a duty especially
ordinary or regular course of business and it is repeated over and enjoined by law;
over again. It gives it a certain degree of accuracy. 2. Entrant had personal knowledge of the facts stated by him or
such facts were acquired by him from reports made by persons
REQUISITES UNDER SECTION 43 under a legal duty to submit the same; and
3. Such entries were duly entered in a regular manner in the
1. The person who made the entry must be dead or unable to official records.
testify;
2. The entries were made at or near the time of the transactions So we’re talking here about people in the government who regularly
to which they refer; take entries and records.
3. The entrant was in a position to know the facts stated in the
entries; Examples
4. The entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral or  PEOPLE VS. MAYINGQUE (G.R. No. 179709, July 6, 2010)
religious; and Anatomical Skeletons, Medico-Legal Report
5. The entries were made in the ordinary or regular course of
business or duty. (Regalado, Vol. II, pp. 791-792, 2008 ed.) That is entry in the official record. They are prima facie evidence of
the facts therein stated even if the person, who himself prepared
Take note that the capacity by which the entrant has made the entry the anatomical sketch or the medico-legal report, is not present to
is not limited to business. Dilikaykang a going concern that makes testify.
profit.That’s not the “course of business” that the law is referring to,
so it’s not limited to that. It can be moral or religious. Example: There’s a report on an autopsy being made upon a cadaver
and then it was made by somebody else, then later on he resigned.
Example: A priest officiates a baptism and so naaymga records diha But when the case came where that medico-legal report became
or let’s say baptismal certificates. This has been known to be one of relevant and should have been presented, it was his successor who
those covered by Section 43.

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LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

testified. Pwede ba na siya? According to the SC: Yeah! In the case of Excludes mere price quotations or replies to queries
People vs. Mayingque. as to costs.

 PEOPLE VS. PRESAS (G.R. No. 182525, March 2, 2011) What happened was there was a collision of maritime vessels.
Report of an official forensic chemist regarding a Katongdili sad-an, the plaintiff, wanted to have the vessel repaired.
recovered prohibited drug What it did, it secured quotations coming from those engaged in the
repair of marine vessels to determine kung pila iyahang gi-claim as
Again, that is prima facie evidence of the facts therein stated even if damages for the repair. He got a lot of quotations and according to
the forensic chemist himself did not testify. him they can be presented without presenting those who made the
quotations themselves because it’s considered a commercial list.
If you are the opponent or the accused, let’s say in the case of The SC said NO, that’s not a commercial list. It excludes price
People vs. Presas, what should you have done? You have to rebut, quotations or replies to queries as to costs.
prima facie evidence lang man siya it can still be rebutted. Rather
than object to its admissibility on the ground that it is not the  MERALCO VS. SECRETARY OF LABOR (G.R. No. 127598,
forensic chemist who made the examination to testify in court. February 22, 2000)
Excludes mere newspaper accounts
 PEOPLE VS. SAN GABRIEL (G.R. No. 107735, February 1,
1996) Regarding wages to be paid by an employees, ang pangutana diha
Advance Information Sheet, Police Blotter and newspaper accounts, listing what is supposed to be paid by an
Other Police Reports employer to an employee all throughout the country is not
considered as a commercial list? According to the SC, NO. It excludes
Although in practice what we usually do would be to subpoena the such newspaper accounts as to wages.
officer who made the blotter. Then they testify as to what that
blotter includes. Q: What are the examples of commercial lists and the like?

If you ask me, there is nothing much about the police blotter. Why? 1. Trade journals and reporting current prices and other market
Because it can be influenced, wala mana siyay actual probative data;
value except to prove that a particular incident took place. Is it proof 2. Mortality tables compiled for life insurance;
that a person is already guilty? No. 3. Abstracts of title compiled by reputable title examining
institutions or individuals; or
Is it proof that in a collision case, in a traffic accident report, does it 4. Business directories, animal pedigree registers, and the like.
mean that if you’re Vehicle 2 you are supposed to be the one guilty? (Francisco, p. 339, 1992 ed.)
Although that’s usually what happens. If you meet an accident make
sure you are Vehicle 1, because it’s supposed to be the one na None of them I am familiar with. To illustrate why it is necessary and
nabanggaan, that’s the misconception. To my mind, there’s really trustworthy, let me explain it to you this way. Let’s go back to the
no probative value especially so when traffic accident reports are past, 10 years ago, when people still use directories. Naay yellow
based on interviews made by the officer after the accident took pages di ba? And the yellow pages there would normally include a
place. Makita ba diay sa officer ana kung giunsa an gpagbangga, division of numbers, addresses and companies based on the
kung kinsa gyud ang sala? business they’re engaged to. So it’s a list. If you’re looking for a
printing press, you go to a directory.
Commercial Lists
Question is who compares that? Isn’t it a fact that every year naay
Rule 130, Section 45. Commercial lists and the like. – Evidence of bag-ong version sa directory. So it’s conceivable that every year the
statements of matters of interest to persons engaged in an entries would change and it goes back a long long time ago when
occupation contained in a list, register, periodical, or other published they first issued directories. Can you trace who made the first
compilation is admissible as tending to prove the truth of any directory when it was first issued? Dili na nimo na ma-trace, maybe
relevant matter so stated if that compilation is published for use by if it’s necessary to admit a directory for example. Is it trustworthy?
persons engaged in that occupation and is generally used and relied Well apparently it is because people use them. If you’re looking for a
upon by them therein. printing press, you go to the directory, you call the first one that you
see. If you’re not satisfied, call another one and so on and so forth.
REQUISITES UNDER SECTION 45 That’s how to illustrate why commercial list are supposed to be
exceptions to the hearsay rule because they are necessary and they
1. It is a statement of matters of interest to persons engaged in an are trustworthy.
occupation;
2. Such statement is contained in a list, register, periodical or Learned Treatises
other published compilation;
3. Said compilation is published for the use of persons engaged in Rule 130, Section 46. Learned treatises – A published treatise,
that occupation, and periodical or pamphlet on a subject of history, law, science, or art is
4. It is generally used and relied upon by persons in the same admissible as tending to prove the truth of a matter stated therein if
occupation. the court takes judicial notice, or a witness expert in the subject
testified, that the writer of the statement in the treatise, periodical
Cases or pamphlet is recognized in his profession or calling as expert in the
subject.
 PNOC SHIPPING VS. CA (G.R. No. 107518, October 8, 1998)
Q: When are learned treatises admissible?
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1. When the court can take judicial notice of them; or again, given in a former case or proceeding, judicial or
administrative, involving the same parties, the same subject matter,
If the court takes judicial notice of the fact that that is really a may be given in evidence against the adverse party. But the
learned treatise, meaning that is supposed to be a full compendium important requisite to remember here was that in the previous case
of knowledge related to a particular branch of study then it will be there must have been opportunity given to the adverse party to
admitted as such. The court can now quote from the learned cross-examine the witness or the deponent.
treatise.
REQUISITES UNDER SECTION 47
2. When an expert witness testifies that the author of such is
recognized as expert in that profession. (Sec. 46) 1. Witness whose testimony is offered in evidence is dead or
unable to testify;
What about if walani-take ugjudicial notice angcourt? Take note of 2. The testimony or deposition was given in a former case or
the requirement that an expert of the subject must testify that the proceeding, judicial or administrative, between the same
writer himself of the learned treatise is an expert. So there’s that parties or those representing the same interests;
prequalification requirement under Section 46. 3. Former case involved the same subject as that in the present
case, although on different causes of action;
Grey’s Anatomy, it’s not just a name of the show, it’s a book that is 4. Issue testified to by the witness in the former trial is the same
used by medical professionals. Everybody in the medical field would issue involved in the present case; and
know what this Grey’s Anatomy book is all about. Meaning it’s a 5. Adverse party had an opportunity to cross-examine the witness
treatise, and they say that Grey is an expert on that subject. That’s in the former case.
the reason why it’s considered as a learned treatise.
“Opportunity to cross-examine” – it does not necessarily mean
Examples: actual conduct of cross-examination. It is enough that cross-
examination or the opportunity to cross-examine was given to the
1. Historical works; adverse party. What if he said “No cross-examination, Your Honor”,
2. Scientific treatises; or he refuses to cross-examine for whatever reasons. That would be
3. Law (Francisco, pp. 340-341, 1992 ed.) enough, no need for actual cross-examination, what’s important was
that the adverse party was given an opportunity to cross-examine.
Law, that I do not agree with. Remember that the law in the
Philippines will always be subject to an adversarial reckoning. It will Now again, balik ta, what would be the rationale why Section 47 is
depend on how the plaintiff argues and how the defendant counter- an exception to the hearsay rule? Necessity, trustworthiness. Why
argues. Regardless of what a particular legal treaty would say, necessity? Because the witness is already deceased or otherwise
parties will always try to get portions of that legal treatise that unable to testify. Why is it trustworthy? Because in the previous
would benefit their cause. Always subject to argumentation, to case, the adverse party was given an opportunity to cross-examine.
counter-interpretation by different parties. So to my mind, I don’t So that further cross-examination in the present case would not be
think that a legal treatise should be a proper exception to the expected to be different. It would illicit more or less the same facts.
hearsay rule.
Q: What are the grounds, aside from death, which makes a witness
Do you consider the SCRA to be a legal treaty? No, I’ve never seen a unable to testify in a subsequent case?
lawyer bring a SCRA to the court presenting as evidence. But if you
look at how the law is worded, naa gyud nakabutang na law. Akoa 1. Insanity or mental incapacity or the former witness’ loss of
lang walay practical application. memory through old age or disease;
2. Physical disability by reason of sickness or advanced age;
Testimony or deposition at a former proceeding 3. The fact that the witness has been kept away by contrivance of
the opposite party; or
Rule 130, Section 47. Testimony or deposition at a former 4. The fact that after diligent search the former witness cannot be
proceeding. – The testimony or deposition of a witness deceased or found. (Francisco, p. 342, 1992 ed.)
unable to testify, given in a former case or proceeding, judicial or
administrative, involving the same parties and subject matter, may Again let me remind you, all the exceptions of the hearsay rule
be given in evidence against the adverse party who had the pareha ra gyud na ug rationale. Necessity and Trustworthiness.
opportunity to cross-examine him.
Common reputation for example. Why necessity? Because you really
What happens here is that there’s a present case, a case under do not know who should testify there. Why trustworthy? Because
consideration by a particular court but sometimes cases for just it’s been common knowledge of the people in the community for at
offshoots of other cases. It’s quite possible that between the least 30 years.
plaintiff and the defendant, the present case is not the only case
between the two. And it’s also quite possible that evidence OPINION RULE
presented in a particular case is evidence that has already been
presented in a previous case, or that the parties have already Is it allowable for a litigant to go to court and as part of his evidence
testified during that related case. present the opinion of the people? At the witness stand, “Mr.
witness in your opinion is the accused guilty or is he innocent?”
What Section 47 foresees is the use of testimonies or depositions Witness: “Guilty.” “Okay you’re excused.” Call another witness and
previously taken in probably a different case in the present case ask the same question. So if that is the case, if that was allowed,
under consideration in the court. The testimony or deposition of a what will happen to litigations? It will practically become an exercise
witness deceased or unable to testify, making it necessary once where you’re just testing the popularity of a particular party.

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A: None. It is sufficient that the following factors are present:


Q: What is an opinion?
1. Training and education;
It is an inference or conclusion based or drawn from the facts 2. Particularity, first-hand familiarity with the facts of the case;
established. and
3. Presentations of authorities or standards upon which his
When a witness states an opinion, he does not testify based on opinion is based. (PEOPLE VS. ABRIOL, 2001)
personal knowledge. Instead of saying what he saw, heard, smelled,
tasted or touched, he is testifying as to what he thinks about a Take note that the law mentions “training and education.”
particular matter. Education may make you an expert but training is sometimes
acquired. Example: You graduate from medical school. You took and
So when you hear a question like, “So what do you think Mr. passed the licensure examination for physicians. You became a full-
Witness?” “Objection Your Honor, calls for an opinion.” fledged doctor. Are you now an expert? No, you have to undergo
certain trainings. You have to specialize.
General Rule
Q: How is expertise acquired?
Rule 130, Section 48. General rule – The opinion of witness is not
admissible, except as indicated in the following sections. There is no precise requirement as to the mode in which skill or
experience shall have been acquired. Scientific study and training
BERNARDINO VS. PEOPLE (2006) are not always essential to the competency of a witness as an
expert. Knowledge acquired by doing is no less valuable than that
Witnesses can testify only to those facts which they know of their acquired by study. (DILAG CO. VS. MERCED, 1949)
personal knowledge, that is, which is derived from their own
perception. They are not generally allowed to testify on their What’s an example? Kanang mga karpintero, mga panday, mason,
opinion or conclusion but must state facts within their knowledge as those who work with concrete. You think they studied a four-year
it is the province of the court to make deductions from pertinent course just to know how to build a house? Or to carve a wood or
facts placed in evidence and to decide matters directly in issue. Their manipulate wood or concrete? No, but years of experience
testimony must be confined to statements of concrete facts within somehow gives them that expertise. Kinsa ba nagadala sa usa ka
their own observation, knowledge, and recollection – that is, facts construction? Is it the architect, engineer and the contractor or the
perceived by the use of their own senses – as distinguished from foreman? It’s the foreman who is usually unlettered. Wala
their opinions, inferences, impressions and conclusions drawn from nakahuman ug skwela pero hawud kaayu. He knows that if this is
such facts, which are incompetent and inadmissible. the structure, this would be the amount of posts that you need
without even computing anything. It’s expertise made by
Exceptions experience.

1. Opinion of Expert Witness (Section 49) Q: What is expert evidence?


2. Opinion of an Ordinary Witness as to:
a. The identity of a person about whom he has adequate It is testimony of a person (expert witness) possessing knowledge
knowledge; not usually acquired by other persons in a particular subject matter.
b. A handwriting with which he has sufficient familiarity’
c. The mental sanity of a person with whom he is sufficiently There’s that requirement of specialization. There’s no person in the
acquainted; and world who can be considered an expert on everything, a master of
d. The witness’ impressions of the emotion, behavior, everything.
condition or appearance of a person (Section 50)
Q: When is expert evidence admissible?
Expert Opinion
A: It is admissible when:
Rule 130, Section 49. Opinion of expert witness. – The opinion of a
witness on a matter requiring special knowledge, skill, experience or 1. the matter to be established requires expertise; and
training which he shown to possess, may be received in evidence. 2. the witness has been qualified as an expert.

Q: What is an expert witness? Let’s discuss the first requisite. For example: You go to court and
then because somebody bumped you then there’s this injury in your
PEOPLE VS. ABRIOL (2001) part. An injury that is incapacitating that it now affects your capacity
to earn a living for the future or your ability to procreate. If that’s
An expert witness is “one who belongs to the profession or calling to the case, what do you need to show to the court? Experts, scientific
or medical opinion would be the one that is desired.
which the subject matter of the inquiry relates and who possesses
special knowledge on questions on which he proposes to express an
opinion.” Another example: You go to a doctor and you had an appendectomy
but you came out with a vasectomy. What is the meaning of that?
There’s negligence on the part of the practitioner. Is that usual? Is
Q: Is there a definite standard of determining the degree of skill or
that the standard operating procedure in a court of law or in the
knowledge that a witness must possess in order to testify as an
field of medicine? The court will not know. You cannot expect the
expert?
court to be an expert in everything. That’s the reason why in certain
issues that when the court is confronted with them, the court must

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necessarily draw from expert evidence. Evidence that normally a Procedure


court cannot appreciate on its own.
1. Introduce and qualify the witness, if his qualifications are not
Q: What is the test in determining whether there is need to resort to otherwise stipulated upon by the opponent;
expert evidence?
What’s the process of qualifying a witness? We already
A: The test is whether the opinion called for will aid the court in illustrated that.
resolving an issue.
2. Present his factual testimony, if he has knowledge of the facts;
If the court already knows the science about it then no need to call
for an expert witness because it can solve the issue on its own. But Because an expert witness will of course be briefed as to
more often than not, the court is forced to rely on expert opinion. the facts in the case na he’s supposed to testify about.
Let’s say he’s a ballistic expert, of course he has already
Q: How an expert witness testifies? made his own independent investigation as to what
happened in the case that necessitated his testimony as a
An expert witness is always offered as such. ballistic expert.
STIPULATION. If the opponent admits that he is an expert,
he can immediately proceed with his testimony. 3. Begin the hypothetical question by asking him to assume
certain facts as true;
Meaning you have to tell the court that the purpose of the
testimony of this witness is to give expert opinion. That’s how you Assuming for the sake of argument, a sexually
offer, “The testimony of this witness is offered to prove the transmissible disease could result in sterility making a
following matters, . . . he will testify Your Honor, as an expert person unable anymore to procreate. Is it now possible
witness” That’s the way we did it before prior to the judicial affidavit that the child claiming paternity is not really a child of A,
rule. Right now in the judicial affidavit rule, you still have to cite the the defendant? So that’s a hypothetical question.
purposes at the beginning of the judicial affidavit. You have no
problem if your opponent admits or stipulates that the witness you 4. Conclude the question, by first asking the expert if he has an
are presenting is actually an expert. opinion on a certain point assuming that these facts are true
and secondly, asking him, after he has answered affirmatively,
In psychological incapacity cases, what do you need to prove there? to give his opinion on the point.
Pursuant to Article 36, Republic vs. Molina, you need to prove
psychological incapacity. There’s this doctor from Davao who I 5. After he has stated his opinion, ask him to give his reasons or
always see in Article 36 cases elsewhere. It’s funny because every the bases for his opinion.
time that guy testifies, nobody ever stipulates as to his expertise.
That’s why the judge would always tell the adverse party, “Would Definitely there should be a basis. Say for example, sterility
you care to stipulate as to the expertise of the witness on this field, caused by sexually transmissible disease. You cannot cite a
on the issue of psychological incapacity?” And then the adverse legal treatise. Asa gikan ang imong opinion?
party say, “No, we do not stipulate.” This guy has been a constant
fixture in this court, every time na nay Article 36, siya ang witness sa Nature of expert opinions
mga party. So if the adverse party does not stipulate as to the Expert opinions are not ordinarily conclusive in the sense that they
qualification of the witness, what do you need to do? You go to the must be accepted as true on the subject of their testimony, but are
process called qualifying a witness. generally regarded as purely advisory; the courts may place
whatever weight they choose upon such testimony and may reject
Qualifying a Witness it, if they find that it is inconsistent with the facts in the case or
If the opponent does not admit that he is an expert witness, then otherwise unreasonable.
before a witness proposed as an expert may testify, he must first be
qualified. “Qualifying a witness” means the act of proving that the What you’re doing when you present an expert witness will be not
witness is an expert. This is done by making him testify, through to establish a matter of fact but you’re giving the court an advisory,
preliminary questions, as to his training, education and expertise. an advice that the court can base his opinion upon.

What we usually do would be to ask the witness to bring his TABAO VS. PEOPLE (2011)
certifications, his diploma, his certificate of admission to a particular
profession that he belongs. What evidence does he have as to The use of the word “may” signifies that the use of opinion of an
certain trainings that would help establish his expertise and so on expert witness is permissible and not mandatory on the part of the
and so forth. So it’s a very long process actually. But now because of courts. Allowing the testimony does not mean, too, that the courts
the judicial affidavit rule, you just put it all down to paper. You just are bound by the testimony of the expert witness. The testimony of
assume that there’s no stipulation as to the expertise of the witness. an expert witness must be construed to have been presented not to
sway the court in favor of any of the parties, but to assist the court
Basis of Opinion in the determination of the issue before it, and is for the court to
An expert witness may base his opinion either on the first-hand adopt or not to adopt depending on its appreciation of the
knowledge of the facts or on the basis of hypothetical questions attendant facts and the applicable law.
where the facts are presented to him and on the assumption that
they are true, formulates his opinion on the hypothesis. “Permissive” that’s the keyword that you need to remember. The
use of expert opinion is at most permissive.

3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

Q: Are there instances under the law where expert evidence is


actually mandated? YES. For example: On March 30, 2000, at around 11:00 p.m., Juan delaLlana was
driving a 1997 Toyota Corolla car along North Avenue, Quezon City.
 Medical Malpractice Cases His sister, Dra. delaLlana, was seated at the front passenger seat
(CASUMPANG VS. CORTEJO, G.R. No. 171127, March 11, while a certain Calimlim at the backseat.
2015)
Juan stopped the car across the Veterans Memorial Hospital when
 Section 46, on learned treatises the signal light turned red. A few seconds after the car halted, a
If the court does not take judicial notice that the writer of the dump truck containing gravel and sand suddenly rammed the car’s
treatise is an expert, you have to present a witness expert on the rear end, violently pushing the car forward. Due to the impact, the
subject who will testify that that guy, the author of the treatise, is car’s rear end collapsed and its rear windshield was shattered. Glass
really an expert. splinters flew, puncturing Dra. delaLlana. Apart from these minor
wounds, Dra. delaLlana did not appear to have suffered from any
 Article 36 Cases (REPUBLIC VS. MOLINA, 268 SCRA 198) other visible physical injuries. The truck driver revealed that his
Is it absolutely required or mandated in the case for declaration for employer was Rebecca Biong.
nullity of marriage that psychological incapacity should be proven by
expert? Remember naa na siya sa elements, the testimony or A month and a half after the accident, Dra. delaLlana began to feel
examination of a psychologist or a clinical psychiatrist that should moderate pain on the left side of her neck and shoulder. Her health
prove the psychological capacity. What do you need to prove deteriorated to the extent that she could no longer move her left
regarding psychological incapacity? Gravity, Incurability and Juridical arm. She consulted with Dr. Rosalinda Milla to examine her
Antecedence. condition. Dr. Milla told her that she suffered from a whiplash injury,
an injury caused by the compression of the nerve running to her left
BIER VS. BIER (2008) arm and hand.

The personal examination of the party alleged to be psychologically She sued the defendants for damages for her whiplash injury. During
incapacitated by a psychiatrist or psychologist is no longer trial, as a medical doctor, Dra. delaLlana herself testified about her
mandatory for the declaration of nullity of the marriage under alleged whiplash injury.
Article 36 of the Family Code but the totality of evidence must still
prove the gravity, juridical antecedence and incurability of the Evidence of delaLlana
alleged psychological incapacity. 1. The pictures of her damaged car
To show that the collision was strong and it can be
That’s the basis now for the holding that you can actually dispense reasonably inferred from these pictures that the massive
with it. Pwede na di ka magpa-testify ug psychiatrist or psychologist. impact resulted in her whiplash injury.
Anyway kaning mga tawhanani, I have seen cases na they don’t 2. The medical certificate dated November 20, 2000
really make a thorough psychological evaluation of a party. So kinta Dr. Milla categorically stated in the medical certificate that
hayang nag-hire sa iyaha kayang bana, so pangutan-on niya ang Dra. delaLlana suffered from whiplash injury.
bana, “Unsa man gyud diay ang character sa imong asawa?” 3. Her testimony that collision can cause whiplash injury.
Husband: “Nagger, mahjongera, bigaon” And then based on the Credible because she was a surgeon.
statements made by the husband, the psychiatrist will now only
know that psychologically incapacitated ang asawa despite not Ruling:
being able to physically examine or psychologically evaluate the 1. The pictures of her damaged car
wife. According to the SC, it only proves impact. It cannot be
used to infer whiplash injury.
CASUMPANG VS. CORTEJO (2015) 2. The medical certificate dated November 20, 2000
HEARSAY. The doctor who issued it did not testify.
Expert testimony is essential to establish not only the professional 3. Her testimony that collision can cause whiplash injury.
standards observed in the medical community, but also that the EXCLUDED FOR BEING A MERE OPINION.
physician’s conduct in the treatment of care falls below such
standard. As to the Medical Certificate – The medical certificate has no
probative value for being hearsay. It is a basic rule that evidence,
When can there be a charge for medical practice? The keywords whether oral or documentary, is hearsay if its probative value is not
there would be deviation from standard of care required under the based on the personal knowledge of the witness but on the
situation. Example: How do you usually treat, in the case of knowledge of another person who is not on the witness stand.
Casumpang vs. Cortejo, dengue fever? What are the accepted
medical standards in the treatment of a person afflicted with As to her testimony – Dra. delaLlana, as the plaintiff in this quasi-
dengue fever? Did the doctor deviate from those standards? How delict case, was the lone physician-witness during trial. Significantly,
would the court know that if there’s no testimony by the expert in she merely testified as an ordinary witness before the trial court.
the medical field as to what are the acceptable standards of Dra. delaLlana essentially claimed in her testimony that Joel’s
treatment for dengue fever? So in ana ang reason nganung reckless driving caused her whiplash injury. Despite the fact that
kinahanglan absolutely required ang expert testimony in medical Dra. delaLlana is a physician and even assuming that she is an expert
malpractice cases, simply because a court is a court of law, not a in neurology, we cannot give weight to her opinion that Joel’s
tribunal of medicine. reckless driving cause her whiplash injury without violating the rules
on evidence.
DE LA LLANA VS. BIONG (2013)

3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

In the present case, Dra. delaLlana’s medical opinion cannot be


given probative value for the reason that she was not presented as Opinion of Ordinary Witness
an expert witness. As an ordinary witness, she was not competent to
testify on the nature, and the cause and effects of whiplash injury. Rule 130, Section 50. Opinion of ordinary witnesses. – The opinion
Furthermore, we emphasize that Dra. delaLlana, during trial, of a witness for which proper basis is given, may be received in
nonetheless did not provide a medical explanation on the nature as evidence regarding:
well as the cause and effects of whiplash injury in her testimony. (a) The identity of a person about whom he has adequate
knowledge;
She was offered as an ordinary witness, a factual witness, that (b) A handwriting with which he has sufficient familiarity; and
makes her testimony inadmissible. Dili ka pwede mahimong expert (c) The mental sanity of a person with whom he is sufficiently
kung gi-offer ka as an ordinary witness even if incidentally you can acquainted.
be considered as an expert. Remember that’s the reason why a The witness may also testify on his impressions of the emotion,
witness is qualified, if you are proposed to be as an expert witness, behavior, condition or appearance of a person.
you have to give the opponent the opportunity to question your
qualification. Otherwise, kita tanan pwede ta maghatag ug Identity – If you look at all of these subjects of ordinary opinion, you
opinion/expert evidence on a particular case. will really consider them to be purely opinion. None of them are
based on personal knowledge. Example: You got a phone call and
CASES: then it’s trying to prank you or threaten but the voice seems
familiar. Si Duterte na. How do you know? Nakitan nimo? The caller
 PAJE VS. CASIÑO (G.R. No. 207257, February 3, 2015) did not identify himself but somehow you got an opinion that the
Expert opinion in environmental cases person on the other side of the line is a person you know with but
you do not know that for your personal knowledge. That is merely
- How do you prove that the opening of a power plant would cause an opinion as to the identity of that person.
irreparable environmental damage?
Handwriting – Example: A secretary testifying that the handwriting
 SAN DIEGO VS. PEOPLE (G.R. No. 176114, April 8, 2015) there is the handwriting of her boss or the signature there is purely
Dueling expert witnesses in criminal cases involving the signature of her boss. For 10 to 12 years, she has been the
mishandling or theft of money. secretary of that person so she knows.

This is a case for qualified theft that it was made possible through Mental Sanity – The mental sanity of a person, opinion lang na. How
the manipulation of financial records. So an expert was presented by do you know for sure that that person is not sane? You don’t know
the prosecution and then an expert presented by the accused about that but in your opinion, “I think that guy is crazy.”
the financial records may be used as evidence.
Emotion – The witness may also testify on his impressions of the
Reminds me of a concept that they have in the United States, the so- emotion. “Was he angry at that time? Was he shocked? How do you
called “Gibson’s Law”, states that for every expert there is an equal know that?” You cannot state that out of your personal knowledge
and opposite expert. but based on your observation of him, your opinion is that he was
angry. You don’t know that for sure.
 TOLENTINO VS. LATAGAN (G.R. No. 179874, June 22, 2015)
Is it required for a handwriting expert to examine the Behavior – “He was acting crazy.” That’s just an opinion because
original documents allegedly forged? how a person acts will always be subjective. An act maybe crazy to
one but it may not be so crazy to another person.
And as a corollary issue, would a showing of possible bias
on the part of the expert adversely affect the Condition/Appearance of a Person – Pangit, gwapa, opinion lang na
proponent? tanan.

There was an allegation that the expert witness was beholden to Identity
one of the parties because one of the parties gave him money for PEOPLE VS. PRIETO (2003)
the appendectomy.
This Court has ruled that identification by the sound of the voice of a
 PUNZALAN VS. COMELEC (G.R. No. 126669, April 27, 1998)
person identified, is a sufficient and acceptable means of
Are handwriting experts required in examining or identification where it is established that the witness and the
comparing handwriting in a ballot? accused had known each other personally and closely for a number
of years.
A possible allegation during election time some years ago, dili pa
automated ang atoang elections, was that in certain precincts and
Handwriting
certain municipalities, only one person would write the names of
MARIANO VS. ROXAS (2002)
candidates that they favor and then replace those ballots na dili
ilaha. So to determine whether or not there is electoral fraud, is it
That the receipts are not genuine was confirmed by Lorna Caraga.
possible or is it required for the Comelec to get handwriting experts
She testified that she is familiar with the signature of complainant
to show that the ballots have been accomplished by just one
who was her officemate for a period of 5 years in the RTC of
person? According to the SC, NO need. The Comelec can see for
Caloocan City. In many occasions, complainant signed documents in
itself. But karon dili na, we don’t need handwriting experts anymore
her presence. Her opinion as to complainant’s genuine signature is
in election cases, as in absolutely not. What you would need would
admissible in evidence pursuant to Section 50, Rule 130.
be tech experts to rig the PCOS machines.

3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

appearance of a person.” Because I always ask this in my


Mental Sanity examinations as well, I am less impressed with people who do not
When a person not an expert testifies as to the mental sanity of a get it in the proper order in which they appear in the codal. So you
person, he is actually stating a matter of opinion derived from his memorize that.
own perception. However, in order to be admissible, the witness
must have been sufficiently acquainted with the person and his CHARACTER EVIDENCE
mental sanity. To be considered sufficiently acquainted, the
proponent must establish the degree of familiarity between the What is character evidence? Simply, it’s the perception about a
witness and the person whose sanity he is testifying about. person. Whether he is perceived as a good person or a bad person.
Whether he is a person of good reputation or a person of bad
This is particularly useful in Succession cases considering that one of reputation. That’s character evidence and the prevailing rule there
the requirements for testamentary capacity is that the testator must would be Section 51.
be of sound mind.
Rule 130, Section 51. Character evidence not generally admissible,
Emotion/Behavior/Condition or Apperance exceptions:
(a) In Criminal Cases:
BAR Question: Dencio barged into the house of Marcela, tied her to (1) The accused may prove his good moral character which is
a chair and robbed her of assorted pieces of jewelry and money. pertinent to the moral trait involved in the offense
Dencio then brought Candida, Marcela’s maid, to a bedroom where charged.
he raped her. Marcela could her Candida crying and pleading: (2) Unless in rebuttal, the prosecution may not prove his bad
“Huwag! Maawa ka sa akin!” After raping Candida, Dencion fled moral character which is pertinent to the moral trait
from the house with the loot. Candida then untied Marcela and involved in the offense charged.
rushed to the police station about a kilometer away and told Police (3) The good or bad moral character of the offended party
Officer Roberto Maawa that Dencion had barged into the house of may be proved if it tends to establish in any reasonable
Marcela, tied the latter to a chair and robbed her of her jewelry and degree the probability or improbability of the offense
money. Candida also related to the police officer that despite her charged.
pleas, Dencion had raped her. The policeman noticed that Candida (b) In Civil Cases:
was hysterical and on the verge of collapse. Dencio was charged Evidence of the moral character of a party in civil case is
with robbery with rape. During the trial, Candida can no longer be admissible only when pertinent to the issue of character
located. involved in the case.
(c) In the case provided for in Rule 132, Section 14.
If the police officer will testify that he noticed Candida to be
hysterical and on the verge of collapse, would such testimony be So the general rule is if you’re prosecution, you cannot convict the
considered as opinion, hence, inadmissible? Explain. accused of evidence that his reputation in the community was bad.
“He’s an known hitman/drug user/thief in the community.” You
UP Suggested Answer: No, it cannot be considered as opinion, cannot do that because it is not material or relevant to the issue of
because he was testifying on what he actually observed. The last whether or not he committed the crime of which he is charged.
paragraph of Section 50, Rule 130, Revised Rules of Evidence,
expressly provides that a witness may testify on his impressions of Rule 132, Section 14. Evidence of good character of witness. -
the emotion, behavior, condition or appearance of a person. Evidence of the good character of a witness is not admissible until
such character has been impeached.
-Although to my mind, mali ang pagkatubag nila. Still opinion, it’s
just that it is an admissible opinion. Pwede man siya, impression You cannot therefore bolster a witness. You may only resort to
lang gud na siya of a person. “In you opinion, what was she?” “She introducing evidence about, let’s say, the good character of a
was hysterical and on the verge of collapse.” Although you do know witness only for the purpose of what we call “Rehabilitation”. To
that for a certainty, you did not physically examine her. rehabilitate the credibility of the witness after his credibility has
been breached.
BAR Question: At Nolan’s trial for possession and use of the
prohibited drug, known as “shabu”, his girlfriend Kim, testified that So these are the three very related matters:
on a particular day, he would see Noland very prim and proper, alert
and sharp, but that three days after, he would appear haggard, tired 1) Bolstering – You prove the good character or reputation of the
and overly nervous at the slightest sound he would hear. Nolan witness even if his character has not been impeached.
objects to the admissibility of Kim’s testimony on the ground that 2) Impeachment – You destroy the credibility of the witness. You
Kim merely stated her opinion without having been first qualified as can do so by telling the court that the witness has a bad
expert witness. Should you, as judge, exclude the testimony of Kim? reputation.
3) Rehabilitation – Kung gidaot sa kalaban nimo ang reputation
Answer: No. The testimony of Kim should not be excluded. Even sa imong witness at the witness stand, you’re allowed to
though Kim is not an expert witness, Kim may testify on her present evidence to counteract that.
impressions of the emotion, behavior, condition or appearance of a
person. (Sec. 50, last par., Rule 130) Rationale
Generally, the character of a party is regarded as LEGALLY
You know what I realized because this is a repeating question in the IRRELEVANT in determining a controversy. IT IS PURELY
bar examinations, I think you need to memorize that. At least the CIRCUMSTANTIAL. That is the reason why it is inadmissible.
order in which the terms appear, “emotion, behavior, condition and

3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

The rule is that the character or reputation of a party is regarded as Example: In a prosecution for rape, where the defense of the
legally irrelevant in determining a controversy, so that evidence accused is consent, he may present evidence of the bad character of
relating thereto is not admissible. Ordinarily, if the issues in the case the woman (i.e., bigaon, that the woman is a prostitute, etc.)
were allowed to be influenced by evidence of the character or
reputation of the parties, the trial would be apt to have the aspects Homicide, etc.
of a popularity contest rather than a factual inquiry into the merits In homicide cases, a pertinent character trait of the victim is
of the case. After all, the business of the court is to try the case, and admissible in two situations: (1) as evidence of the deceased’s
not the man; and a very bad man may have a righteous case aggression; and (2) as evidence of the state of mind of the accused.
(PEOPLE VS. LEE, G.R. No. 139070, May 29, 2002)
The purnacious, quarrelsome or trouble-seeking character of the
Exceptions deceased or his calmness, gentleness and peaceful nature, as the
When are you allowed to present evidence as to the good character case may be, is relevant in determining whether the deceased or the
of the accused? accused was the aggressor.

Good character of the accused When the evidence tends to prove self-defense, the known violent
When the accused presents proof of his good moral character, this character of the deceased is also admissible to show that it
strengthens the presumption of innocence, and where good produced a reasonable belief of imminent danger in the mind of the
character and reputation are established, an inference arises that accused and a justifiable conviction that a prompt defensive action
the accused did not commit the crime charged. This view proceeds was necessary.
from the theory that a person of good character and high reputation
is not likely to have committed the act charged against him. But proof of the victim’s bad moral character is not necessary in
cases of murder committed with treachery and premeditation.
I heard this a lot in court. A person being tried for murder will (PEOPLE VS. LEE, G.R. No. 139070, May 29, 2002)
present witnesses tending to show that he is a responsible son, a
conscientious member of the community and so on and so forth. It doesn’t matter. It will only be relevant, the bad character of the
What’s the purpose of that? So that the court might be swayed to victim if you’re pleading self-defense.
think that the accused is not actually a bad person.
PEOPLE VS. SAZON (1990)
Thus, a person accused of a crime involving dishonesty may present
evidence tending to prove that he is honest. The bad moral character of the offended party may be proved in
evidence to establish in any reasonable degree the probability of the
By the Prosecution offense charged, e.g., the quarrelsome nature of the victim may
tend to establish that he started the unlawful aggression.
Example: If Gerald is accused of stealing from the purse of Maja, the Nonetheless, such evidence, seeking to establish as it does only a
prosecution cannot present witnesses tending to show that Gerald probability, cannot prevail over facts sufficiently proven by the
has the propensity to steal. prosecution during the trial belying such aggression.

However, if Gerald presented character evidence tending to show Kung nay lain naka witness clearly stating that he initiated the
that he is honest or that he is not a thief, the prosecution now altercation and in the process killed the victim, it wouldn’t matter.
present adverse character evidence (only in rebuttal).
PEOPLE VS. ADONIS (1995)
Kung nag-present siya ug evidence of good character, that’s the only
time that the prosecution can present evidence of his bad character. Even if it had been proved by competent evidence that the deceased
was of a quarrelsome disposition, such evidence would only have
In both (1) and (2) established a probability that he had indeed started an unlawful
The character evidence must be relevant and germane to the kind of assault on Eleuterio. This probability cannot overcome the positive
the act charged, e.g., on a charge of rape, character for chastity; on a statement of the prosecution witnesses during trial that the
charge of assault, character of peacefulness or violence; on a charge accused-appellant had assaulted Basas without any provocation.
for embezzlement, character for honesty and integrity.
Rape and Similar Offenses
So there is that basic requirement of relevancy. Kung ang crime in
ani, dapat in ani pud ang imohang character evidence that you can General Rule
present. In rape and acts of lasciviousness or in any prosecution involving an
unchaste act perpetrated by a man against a woman where the
Offended Party willingness of a woman is material, the woman’s character as to her
Character evidence, whether good or bad, of the offended party chastity is admissible to show whether or not she consented to the
may be proved “if it tends to establish in any reasonable degree the man’s act.
probability or improbability of the offense charged.”
Exceptions
Example: In a prosecution for murder where the accused pleads the
justifying circumstance of self-defense, he may present evidence of  When the woman’s consent is immaterial such as in statutory
the bad character of the victim (i.e., that the victim is a violent rape or rape with violence or intimidation.
person, proving unlawful aggression).  In the crimes of qualified seduction or consented abduction
where the offended party must be a “virgin” which is

3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

“presumed if she is unmarried and of good reputation,” or a the codal provision lang gyud. You just need to remember when it is
“virtuous woman of good reputation.” permissible, when it’s not, what are the exceptions.

Child Sexual Abuse Cases

Section 30. Sexual abuse shield rule. –


(a) Inadmissible evidence. – The following evidence is not
admissible in any criminal proceeding involving alleged
child sexual abuse:
(1) Evidence offered to prove that the alleged victim
engaged in other sexual behavior; and
(2) Evidence offered to prove the sexual predisposition
of the alleged victim.
(b) Exception. – Evidence of specific instances of sexual
behavior by the alleged victim to prove that a person other
that the accused was the source of semen, injury, or other
physical evidence shall be admissible.

Adult Rape
The evidence of complainant’s past sexual conduct, or reputation or
opinion thereof shall not be admitted unless and only to the extent
that the court finds that such evidence is material and relevant to
the case (Rape Shield, Sec. 6, R.A. 8505 or Rape Victim Assistance
and Protection Act of 1998)

So what’s the effect of this provision under R.A. 8505? Gi-reverse


raniya, kungunsaanggeneral rulemaonakaronangexception. Because
the general rule, the offended party you can introduce character
evidence to prove bad reputation for example, if your defense is
consent. But karonbaliktadna. The exception is when the court
won’t allow such evidence if it is of course material and relevant to
the fact in issue in the case but the rule remains practically the
same.

In Civil Cases
Evidence of the moral character of a party in civil case is admissible
only when pertinent to the issue of character involved in the case.

Examples:

 Declaration of Nullity of Marriage due to Psychological


Incapacity

Where a party is alleged to be psychologically incapacitated to


comply with the essential marital obligations of marriage, there are
times when evidence of his character must be adduced (Example:
The respondent is a compulsive gambler, a womanizer, a sex addict,
etc.)

 Custody Cases

In custody cases, more often than not, one parent would be


attacking the moral character of the other if only to prove that he or
she is the better parent to take sole custody of the child. If the child
is a minor below 7 years old, the mother is preferred. It seems that
the only way for the father to take custody is to prove that the
mother is manifestly unfit.

For Section 50, you memorize for obvious reasons. It’s asked in the
bar examinations all the time.

For Section 51, what I need you to do would be to memorize the


codal provision because the questions asked in the bar examinations
will all depend on their knowledge on the codal provisions. It’s kinda
long but any questions asked in bar examinations will be based on
3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.