LAW ON EVIDENCE
JESS ESPEJO
August 17, 2016
INTERPRETATION OF DOCUMENTS
Rule 130, Section 10. Interpretation of a writing according to its
legal meaning. - The language of a writing is to be interpreted
according to the legal meaning it bears in the place of its execution,
unless the parties intended otherwise.
INTERPRETATION ACCORDING TO LEGAL MEANING
By way of review, it bears to recall the basic principles “LEX LOCI
CELEBRATIONIS” in the law on marriage and “LEX LOCI
CONTRACTUS”, the Latin term for "law of the place where the
contract is made".
When the contract is entered into in one place, to be executed in
another, there are two loci contractus; the locus celebrate
contractus, and the locus solutionis; the former governs in
everything which relates to the mode of construing the contract, the
meaning to be attached to the expressions, and the nature and
validity of the engagement; but the latter governs the performance
of the agreement.
An example is a “non-compete clause”. It is a term used in contract
law under which one party (usually an employee) agrees to not
pursue a similar profession or trade in competition against another
party (usually the employer). This is used to protect so-called “trade
secrets” from leaking to rival companies.
In the United States, a “non-compete clause” is varied in its
applicability per state. In Virginia, “non-compete clauses” are
deemed valid if proven to be necessary to protect legitimate
business interests. Conversely, in California, “non-compete clauses”
are automatically void as a matter of law, being against public policy,
subject to very limited exceptions.
In the Philippines, the rule is still couched in general terms to wit:
Art. 1306. The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient,
provided they are not contrary to law, morals, good customs, public
order, or public policy.
Rule 130, Section 11. Instrument construed so as to give effect to
all provisions. - In the construction of an instrument, where there are
several provisions or particulars, such a construction is, if possible, to
be adopted as will give effect to all.
HARMONY IS THE ULTIMATE GOAL
According to Section 11, one has to harmonize provisions in a
contract with each other.
MULTINATIONAL VILLAGE HOMEOWNERS ASSOCIATION, INC., ET
AL. vs. ARA SECURITY AND SURVEILLANCE AGENCY, INC.
G.R. No. 154852, October 21, 2004
Two Provisions:
5. MODE OF PAYMENT:
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based on the lectures of ATTY.
“Billing shall be every fifteen (15) days. After three (3)
months of satisfactory performance, the parties may
negotiate for the extension of this contract and other
matters that might be advantageous to both parties."
12. TERM OF CONTRACT:
"This Contract shall take effect on May 25, 1994 and shall
be for a period of One (1) Year from said date. Thereafter,
it shall be deemed renewed for the same period unless
either party notifies the other in writing not later than one
(1) month before the expiry of its intent not to renew.”
One party, after one year, rescinded the contract.
Petitioners objected to the rescission citing paragraphs 5 and 12 of
their agreement. Petitioners contend that the court a quo did not
comply with Section 11 of Rule 130 of the Rules of Court, because it
failed to give effect to paragraph 5. They further invoke Section 12
of the same Rule, arguing that relative to the provision of the
Contract on the duration of its effectivity, which is one year,
paragraph 5 is a particular provision. They conclude that since the
two provisions are inconsistent, paragraph 5 -- being the particular
provision -- should prevail. Petitioners contend that according to
paragraph 5, there is no right to rescind but an obligation to
renegotiate.
HELD: Section 11 of Rule 130 of the Rules of Court states that "[i]n
the construction of an instrument where there are several
provisions or particulars, such a construction is, if possible, to be
adopted as will give effect to all." Contrary to petitioners’
contention, paragraph 5 is not inconsistent with paragraph 12. More
important, the former does not in any way deal with the termination
of the Contract. Neither does it provide for a right to rescind.
At this point, we stress that the right to rescind is implied in
reciprocal obligations, as provided for in Article 1191 of the Civil
Code, which states:
"ART. 1191. The power to rescind obligations is implied in
reciprocal ones, in case one of the obligors should not
comply with what is incumbent upon him. XXX”
Therefore, absent any provision providing for a right to rescind, the
parties may nevertheless rescind the contract should the other
obligor fail to comply with its obligations.
HOME DEVELOPMENT MUTUAL FUND vs. COURT OF APPEALS
G.R. No. 118972, April 3, 1998
HELD: Our pivot of inquiry is the correct construction or
interpretation of subject Consultancy Agreement, particularly its
provision:
“That this agreement takes effect on January 1, 1985 to
December 31, 1985; Provided, however, that either party
who desires to terminate the contract may serve the other
party a written notice at least thirty (30) days in advance.”
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,
prescribes the manner the service contract in question could be
terminated.
LAW ON EVIDENCE
It is petitioners' submission that the first clause referred to is
independent, distinct and separate from the said proviso, such that
upon the expiration of the period stated in the first clause, the
Consultancy Agreement ceased to have any binding effect between
the contracting parties even though they (petitioners) did not give
any written notice of termination at least thirty (30) days in advance.
We cannot fathom how contracting parties, who are sui juris, and
knowledgeable of the purposes for which they solemnly put their
Agreement into writing, could be so careless as to include
inconsistent conditions in such a short and simple provision in their
contract sued upon.
Time-honored is the rule that "In the construction of an instrument
where there are several provisions or particulars, such a
construction is, if possible, to be adopted as will give effect to all."
Article 1374 of the New Civil Code, on the other hand, requires that
"The various stipulations of a contract shall be interpreted together,
attributing to the doubtful ones that sense which may result from all
of them taken jointly." Conformably, to ascertain the true meaning
or import of the controverted provision of subject Consultancy
Agreement, its entirety must be considered; not merely the first
clause. Consequently, petitioners' interpretation solely based on the
first clause, and which completely ignored the second clause under
scrutiny, cannot be upheld.
BPI-FAMILY SAVINGS BANK, INC. vs. SPS. DOMINGO
G.R. No. 158676, November 27, 2006
Provision:
“Assignment and Sublease – The lessee has the right to
sublease the premises or any portion thereof to a third
party. The lessee may not, however, assign or transfer its
right or interest under this lease without the written
consent of the lessor.”
HELD: On surface, the foregoing stipulation seemingly insulates Cruz
from any liability in this case. However, basic is the rule that in the
construction of an instrument where there are several provisions or
particulars, such a construction is, if possible, to be adopted as will
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
covenant speaks of what the lessee can do, while the second
sentence refers to what it cannot do without the consent of the
lessor. This is evident from the phrase "may not however" found in
the second sentence, which means that the act of sub-leasing in the
first sentence may be done by the lessee without the consent of the
lessor but the act of assignment or transfer of rights in the second
sentence cannot be done by the lessee without the consent of the
lessor. Clearly, the parties intended a distinction between a sublease
and an assignment of rights.
Under the aforequoted contractual stipulation, BPI-FSB, as lessee, is
possessed of the authority to sublease the subject premises. No
mention is made of obtaining any written consent of the lessor
(Cruz) as a condition sine qua non for the validity of a sublease
agreement. What necessitates the prior written consent of lessor
Cruz is the assignment or transfer by BPI-FSB as lessee of its right or
interest under the lease agreement.
Rule 130, Section 12. Interpretation according to intention; general
and particular provisions. - In the construction of an instrument, the
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intention of the parties is to be pursued; and when a general and a
particular provision are inconsistent, the latter is paramount to the
former. So a particular intent will control a general one that is
inconsistent with it.
INTENTION IS PARAMOUNT
Intention is always the first rule of interpretation. In Sales, we
distinguished a contract of sale from a contract of barter. One of the
rules we learned is:
Art. 1468. If the consideration of the contract consists partly in
money, and partly in another thing, the transaction shall be
characterized by the manifest intention of the parties. If such
intention does not clearly appear, it shall be considered a barter if
the value of the thing given as a part of the consideration exceeds
the amount of the money or its equivalent; otherwise, it is a sale.
LIGON vs. COURT OF APPEALS
G.R. No. 84644, August 29, 1989
At the outset, it should be stated that, as a rule, in the construction
and interpretation of a document the intention of the parties must
be sought (Rule 130, Section 10, Rules of Court). This is the basic rule
in the interpretation of contracts because all other rules are but
ancillary to the ascertainment of the meaning intended by the
parties. And once this intention has been ascertained it becomes an
integral part of the contract as though it has been originally
expressed therein in unequivocal terms. (Shoreline Oil Corp. vs. Guy,
App. 189, So., 348, cited in 17A C.J.S., p. 47)
GENERAL versus SPECIAL PROVISIONS
In the second part of Section 12, we are actually told to apply the
principle "GENERALIA SPECIALIBUS NON DEROGANT", which means
that where an act deals specifically with a subject a general
provision in that act does not override the specific provision. If a
matter falls under a specific provision and a general provision, it
shall be governed by the specific provision.
EMPIRE INSURANCE COMP. vs. REMEDIOS S. RUFINO
G.R. No. L-38268 May 31, 1979
Section 10 (now Section 12), Rule 130 of the Rules of Court provides
as follows:
Interpretation according to intention; general and
particular provisions — In the construction of an
instrument, the intention of the parties is to be pursued;
and when a general and a particular provision are
inconsistent, the latter is paramount to the former. So a
particular intent will control a general one that is
inconsistent with it.
Likewise, Article 1372 of the Civil Code stipulates that however
general the terms of a contract may be, they shall not be
understood to comprehend things that are distinct and cases that
are different from those upon which the parties intended to agree.
Similarly, Article 1374 of the same Code provides that "the various
stipulations of a contract shall be interpreted together, attributing to
the doubtful ones that sense which may result from all of them
taken jointly."
LAW ON EVIDENCE
SECURITY BANK CORP. VS. HON. COURT OF APPEALS, ET AL.
G.R. No. 141733, February 8, 2007
While it cannot be gainsaid that the terms and conditions in the
Contract of Security Services (CSS) were incorporated to the PRA
(sic) as integral parts thereof, nevertheless, We conform to the
finding of the court of origin that the 2nd contract (PRA) precisely
and particularly dealt with the mode of resolving PISA’s liability
resulting, if any, from [the] March 12, 1992 robbery. (Order dated
July 12, 1993, p.1; Records, p.113). It distinctively provides a clear
cut manner by which the right of action against PISA may be
exercised by [SBC] pertaining to a specific robbery incident—a
matter visibly non-existent in the CSS. Indeed, this special provision
controls and prevails over the general terms and conditions extant
on the CSS. (Yatco v. El Hogar Filipino, 67 Phil. 610)
When a general and a particular provision are inconsistent, the
latter is paramount to the former. Ergo, a particular intent, as in this
case reflected in letter e, paragraph 5 of the PRA will control a
general intent embodied in paragraph 9 of the Contract of Security
Services. (Section 12, Rule 130, Revised Rules of Court) Thus, the
PRA is paramount to and prevails over the terms and stipulations in
the first contract (CSS) on matters relevant and material to PISA’s
liability relating to the robbery.
CASES TO READ:
CORTES vs. INTERMEDIATE APPELLATE COURT, ET AL.
G.R. No. 73678, July 21, 1989
But see: GLOBAL HOLIDAY vs. METROBANK
G.R. No. 184081, June 19, 2009
LICAROS vs. GATMAITAN
G.R. No. 142838, August 9, 2001
EQUITABLE PCI BANKING CORPORATION vs. RCBC CAPITAL
CORPORATION
G.R. No. 182248, December 18, 2008
GUIDE QUESTIONS:
1. In Cortes, what “specific intent” overrode what “general
intent”?
2. Why was the ruling in Cortes not applied in Global Holiday?
3. In Licaros, how did the Supreme Court differentiate between
conventional subrogation and a mere assignment of credit?
4. In Licaros, from what specific facts did the Supreme Court
determine the true intention of the parties to the contract?
5. Explain how the Supreme Court applied Rule 130, Section 11, in
relation to Article 1374 of the Civil Code, in finally determining
the nature of the contractual relationship of the parties in
Licaros?
6. In Equitable, why did the Supreme Court rule that there was no
need to rely on Sec. 12, Rule 130 despite the fact that two
different provisions of the contract applied to the same subject
matter?
Rule 130, Section 13. Interpretation according to circumstances. -
For the proper construction of an instrument, the circumstances
under which it was made, including the situation of the subject
thereof and of the parties to it, may be shown, so that the judge may
be placed in the position of those whose language he is to interpret.
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based on the lectures of ATTY. JESS ESPEJO
INTERPRETATION ACCORDING TO CIRCUMSTANCES
Here, one who is tasked to consider the evidence presented is
implored to place himself in the shoes of the parties to the
document and envision the circumstances under which the
provisions of an instrument were created. This rule is useful in
interpreting contracts such as equitable mortgages or lease with
option to buy.
CASES TO READ:
BANK OF COMMERCE vs. GOLDMAN FIELDER
G.R. No. 191561, March 7, 2011
MARQUEZ vs. ESPEJO
G.R. No. 168387, August 25, 2010
GUIDE QUESTIONS:
1. In Goldman, what particular facts and circumstances supported
the Supreme Court’s conclusion that the bank did not intend to
issue a bank guaranty?
2. In Marquez, how was Rule 130, Section 13, in relation to
Articles 1370-71 of the Civil Code, used to determine the
applicability of the Parol Evidence Rule?
3. Also in Marquez, why did the Supreme Court hold that the Best
Evidence Rule was inapplicable?
Rule 130, Section 14. Peculiar signification of terms. - The terms of a
writing are presumed to have been used in their primary and general
acceptation, but evidence is admissible to show that they have a
local, technical, or otherwise peculiar signification, and were so used
and understood in the particular instance, in which case the
agreement must be construed accordingly.
ORDINARY MEANING IS PREFERRED
Section 14 provides that when interpreting a term used in a contract
or instrument, its general meaning or ordinary signification is to be
applied. This is an instance when a mere “layman’s understanding”
is preferred for verily there are contracts that do not require or was
not attended by the intervention of a lawyer. However, evidence
may be introduced that the term used has a local, technical or
otherwise peculiar signification.
An example of this is the term “PAKIAO”. Under the Omnibus Rules
to implement the Labor Code, Workers who are paid by results,
including those who are paid on piece-work, "takay," "pakiao" or
task basis are not entitled to certain labor standards benefits.
However, the term PAKIAO may not be understood by laymen in the
same manner as it is used under the Omnibus Rules.
SECURITY BANK vs. COURT OF APPEALS
G.R. No. 141733, February 8, 2007
Paragraph 5 of the PRA specifically states that PISA’s payment was
subject to express terms and conditions, one of which was the
following:
“(e) The parties hereto further agree that this agreement
and/or payment of the whole amount of P3,027,728.01,
shall not affect or prejudice, directly or indirectly, whatever
cause of action SBC may have against PISA and whatever
claim or defense the latter may have against SBC, if the
LAW ON EVIDENCE
maximum recoverable proceeds of the insurance covering
the loss suffered by SBC could not be recovered from the
insurer. Further, it is agreed that should Security Guards
Wilson Taca and Ernesto Mariano be absolved from the
charge of robbery in band and/or are found by the proper
court not to have been involved at all in the alleged
conspiracy, and that it is duly established through legal
action before the competent court that their failure to
prevent the robbery was not due to their, or their PISA co-
guards’ negligence and/or willful act, whatever
installments may have been paid by PISA under this
Agreement shall be reimbursed with legal interest to be
computed from the time of actual payment, the same to be
amortized in eighteen (18) equally monthly installments,
with the interest thereto being based on the diminishing
balance.”
We hold that reading the clause as requiring a final judgment is a
strained interpretation and contrary to settled rules of
interpretation of contracts. Paragraph 5(e) only requires that the
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
determining the signification of terms, words are presumed to have
been used in their primary and general acceptance, and there was
no evidence presented to show that the words used signified a
judicial adjudication. Indeed, if the parties had intended the non-
recovery to be through a judicial and final adjudication, they should
have stated so. In its primary and general meaning, paragraph 5(e)
would cover LIC’s extrajudicial denial of SBC’s claim.
MORENO vs. PRIVATE MANAGEMENT OFFICE
G.R. No. 159373, November 16, 2006
Petitioner further argues that the "suggested indicative price" of
P21,000,000.00 is not a proposed price, but the selling price
indicative of the value at which respondent was willing to sell.
Petitioner posits that under Section 14, Rule 130 of the Revised
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
"indicated" or "specified" which, if accepted, gives rise to a meeting
of minds. This was the same construction adopted by the trial court,
viz.:
Going to defendant’s main defense that P21 Million was a
"suggested indicative price" – we have to find out exactly what
"indicative" means. Webster Comprehensive Dictionary,
International Edition, gives us a graphic meaning that everybody can
understand, when it says that "to indicate" is [t]o point out; direct
attention[;] to indicate the correct page[.] "Indicative" is merely the
adjective of the verb to indicate. x x x when the price of P21 [M]illion
was indicated – then it becomes the "indicative" price – the correct
price, no ifs[,] no buts. We do not agree.
Under the same section and rule invoked by petitioner, the terms of
a writing are presumed to have been used in their primary and
general acceptation, but evidence is admissible to show that they
have a local, technical, or otherwise peculiar signification, and were
so used and understood in the particular instance, in which case the
agreement must be construed accordingly.
The reliance of the trial court in the Webster definition of the term
"indicative," as also adopted by petitioner, is misplaced. The
transaction at bar involves the sale of an asset under a privatization
scheme which attaches a peculiar meaning or signification to the
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term "indicative price." Under No. 6.1 of the General Bidding
Procedures and Rules of respondent, "an indicative price is a ball-
park figure and [respondent] supplies such a figure purely to define
the ball-park." The plain contention of petitioner that the
transaction involves an "ordinary armslength sale of property" is
unsubstantiated and leaves much to be desired. This case sprung
from a case of specific performance initiated by petitioner who has
the burden to prove that the case should be spared from the
application of the technical terms in the sale and disposition of
assets under privatization. Petitioner failed to discharge the burden.
It appears in the case at bar that petitioner’s construction of the
letter of February 22, 1993 – that his assent to the "suggested
indicative price" of P21,000,000.00 converted it as the price certain,
thus giving rise to a perfected contract of sale – is petitioner’s own
subjective understanding. As such, it is not shared by respondent.
Under American jurisprudence, mutual assent is judged by an
objective standard, looking to the express words the parties used in
the contract. Under the objective theory of contract,
understandings and beliefs are effective only if shared.
Based on the objective manifestations of the parties in the case at
bar, there was no meeting of the minds. That the letter constituted a
definite, complete and certain offer is the subjective belief of
petitioner alone. The letter in question is a mere evidence of a
memorialization of inconclusive negotiations, or a mere agreement
to agree, in which material term is left for future negotiations. It is a
mere evidence of the parties’ preliminary transactions which did not
crystallize into a perfected contract. Preliminary negotiations or an
agreement still involving future negotiations is not the functional
equivalent of a valid, subsisting agreement. For a valid contract to
have been created, the parties must have progressed beyond this
stage of imperfect negotiation. But as the records would show, the
parties are yet undergoing the preliminary steps towards the
formation of a valid contract. Having thus established that there is
no perfected contract of sale in the case at bar, the issue on
estoppel is now moot and academic.
Rule 130, Section 15. Written words control printed. - When an
instrument consists partly of written words and partly of a printed
form, and the two are inconsistent, the former controls the latter.
RATIONALE OF THE RULE
The rationale for this rule is that the written words are the latest
expression of the will of the parties (DE LOS SANTOS vs. VIBAR, G.R.
No. 150931, July 16, 2008).
SALUDO, JR. vs. COURT OF APPEALS
G.R. No. 95536, March 23, 1992
Indubitably, that private respondent can use substitute aircraft even
without notice and without the assumption of any obligation
whatsoever to carry the goods on any specified aircraft is clearly
sanctioned by the contract of carriage as specifically provided for
under the conditions thereof.
Petitioners' invocation of the interpretative rule in the Rules of Court
that written words control printed words in documents, to bolster
their assertion that the typewritten provisions regarding the routing
and flight schedule prevail over the printed conditions, is tenuous.
Said rule may be considered only when there is inconsistency
between the written and printed words of the contract.
LAW ON EVIDENCE
As previously stated, we find no ambiguity in the contract subject of
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
that the above condition remains effective "notwithstanding that
the same (fixed time for completion of carriage, specified aircraft, or
any particular route or schedule) may be stated on the face hereof."
CASES TO READ:
DE LOS SANTOS vs. VIBAR
G.R. No. 150931, July 16, 2008
JARQUE vs. SMITH, BELL AND CO.
G.R. No. L-32986, November 11, 1930
GUIDE QUESTIONS:
1. In Jarque, how did the Supreme Court apply the rule that
written words control the printed?
2. In Vibar, what printed and written words were inconsistent?
3. Still in Vibar, what fact or facts did the Supreme Court consider
in determining whether the petitioner De Los Santos was a
guarantor of De Leon’s debt?
Rule 130, Section 16. Experts and interpreters to be used in
explaining certain writings. - When the characters in which an
instrument is written are difficult to be deciphered, or the language
is not understood by the court, the evidence of persons skilled in
deciphering the characters, or who understand the language, is
admissible to declare the characters or the meaning of the language.
DECIPHERING CHARACTERS AND UNDERSTANDING OBSCURE
LANGUAGE
Although English is the official language of the Philippine Judiciary, it
cannot be denied that our country is a hodge-podge of cultures and
ethnicities with their own dialects or languages and sometimes
contracts are written in such native dialects or languages. In such
cases, the law allows the introduction of evidence, generally
testimonial, to translate the language with which the tribunal is not
familiar. If a party is not satisfied or doubts the veracity of the
translation, he may raise the same during trial, on cross-examination
or even present his own expert or interpreter to rebut the same.
Rule 130, Section 17. Of two constructions, which preferred. - When
the terms of an agreement have been intended in a different sense
by the different parties to it, that sense is to prevail against either
party in which he supposed the other understood it, and when
different constructions of a provision are otherwise equally proper,
that is to be taken which is the most favorable to the party in whose
favor the provision was made.
DIFFERENT INTERPRETATIONS
This covers a situation where there are different interpretations
given by as many parties to one single document. The prevailing
interpretation will be determined according to the following rules:
1. The interpretation which the other party believed and used will
prevail;
2. When both constructions are equally proper, that
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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based on the lectures of ATTY. JESS ESPEJO
RELATED PROVISION
Article 1377 of the Civil Code provides:
ART. 1377. The interpretation of obscure words or stipulations in a
contract shall not favor the party who caused the obscurity.
CASES TO READ:
ASTURIAS SUGAR CENTRAL vs. THE PURE CANE MOLASSES CO.
57 Phil. 519
ENRIQUEZ vs. A.S. WATSON & CO. LTD.
G.R. No. L-7180, March 30, 1912
HORRIGAN vs. TROIKA COMMERCIAL
G.R. No. 148411, November 29, 2005
GUIDE QUESTIONS:
1. How did the Supreme Court interpret the term “obras” in
Enriquez? What older incarnations of present rules of
interpretation did the Supreme Court use to aid its
interpretation?
2. Explain the ambiguity that the Supreme Court interpreted in
Horrigan.
3. Still in Horrigan, how did the Supreme Court apply Rule 130,
Section 17 and Article 1377 of the Civil Code?
Rule 130, Section 18. Construction in favor of natural right. - When
an instrument is equally susceptible of two interpretations, one in
favor of natural right and the other against it, the former is to be
adopted.
A natural right is one that exists by virtue of natural law. This rule is
usually applicable to waivers and renunciations.
Rule 130, Section 19. Interpretation according to usage. - An
instrument may be construed according to usage, in order to
determine its true character.
Dean Inigo’s example relates to a bill of lading. A bill of lading
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
therein stipulated. As a receipt, it recites the date and place of
shipment, describes the goods as to quantity, weight, dimensions,
identification marks and condition, quality, and value.
As a contract, it names the contracting parties, which include the
consignee, fixes the route, destination, and freight rate or charges,
and stipulates the rights and obligations assumed by the parties
(PHOENIX ASSURANCE CO., LTD. vs. UNITED STATES LINES, G.R. No.
L-24033, February 22, 1968). Thus, a bill of lading should be
interpreted according to these usages.
PROVISIONS OF THE CIVIL CODE ON THE INTERPRETATION OF
CONTRACTS
Art. 1370. If the terms of a contract are clear and leave no doubt
upon the intention of the contracting parties, the literal meaning of
its stipulations shall control.
LAW ON EVIDENCE
If the words appear to be contrary to the evident intention of the
parties, the latter shall prevail over the former.
Art. 1371. In order to judge the intention of the contracting parties,
their contemporaneous and subsequent acts shall be principally
considered.
Art. 1372. However general the terms of a contract may be, they
shall not be understood to comprehend things that are distinct and
cases that are different from those upon which the parties intended
to agree.
Art. 1373. If some stipulation of any contract should admit of several
meanings, it shall be understood as bearing that import which is
most adequate to render it effectual.
Art. 1374. The various stipulations of a contract shall be interpreted
together, attributing to the doubtful ones that sense which may
result from all of them taken jointly.
Art. 1375. Words which may have different significations shall be
understood in that which is most in keeping with the nature and
object of the contract.
Art. 1376. The usage or custom of the place shall be borne in mind in
the interpretation of the ambiguities of a contract, and shall fill the
omission of stipulations which are ordinarily established.
Art. 1377. The interpretation of obscure words or stipulations in a
contract shall not favor the party who caused the obscurity.
Art. 1378. When it is absolutely impossible to settle doubts by the
rules established in the preceding articles, and the doubts refer to
incidental circumstances of a gratuitous contract, the least
transmission of rights and interests shall prevail. If the contract is
onerous, the doubt shall be settled in favor of the greatest
reciprocity of interests.
If the doubts are cast upon the principal object of the contract in
such a way that it cannot be known what may have been the
intention or will of the parties, the contract shall be null and void.
Art. 1379. The principles of interpretation stated in Rule 123 of the
Rules of Court shall likewise be observed in the construction of
contracts.
TESTIMONIAL EVIDENCE
Testimonial or oral evidence is evidence elicited from the mouth of a
witness as distinguished from real and documentary evidence.
It is sometimes called viva voce evidence which literally means
“living voice” or by word of mouth. In this kind of evidence, a human
being is called to the stand, is asked questions, and answers the
questions asked of him. The person who gives the testimony is
called a “witness”.
In the hierarchy of evidence, it is considered the weakest because it
is the most prone to fabrication.
GSIS vs. COURT OF APPEALS
Testimonial evidence is easy of fabrication and there is very little
room for choice between testimonial evidence and documentary
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evidence. Generally, therefore, documentary evidence prevails over
testimonial evidence.
However, despite the testimonial evidence being the weakest in our
judicial system in terms of hierarchy, it is important because all
types of evidence must, in a sense, be sponsored by a witness.
Without a witness, no evidence can ever be authenticated. The
reason is simple. Being inanimate, a document or an object cannot
speak for itself.
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
evidence to be admitted by the court. When applied to a witness,
competence means that the witness is qualified to take the stand
and testify. It means that he is fit or eligible to testify on a particular
matter in a judicial proceeding.
Presumption in favor of competence of a witness
As a general rule, a person who takes the stand as a witness is
presumed to be qualified to testify. A party who desires to question
the competence of a witness must do so by making an objection as
soon as the facts tending to show incompetency are apparent.
QUALIFICATION OF A WITNESS
Rule 130, Section 20. Witnesses; their qualifications. — Except as
provided in the next succeeding section, all persons who can
perceive, and perceiving, can make their known perception to others,
may be witnesses.
Religious or political belief, interest in the outcome of the case, or
conviction of a crime unless otherwise provided by law, shall not be
ground for disqualification.
Basic qualifications of a witness
1. Can perceive;
2. In perceiving, can make known his perception to others;
3. He must take either an oath or an affirmation; and (Section 1,
Rule 132)
4. He must not possess any of the disqualifications imposed by
law or the Rules.
Ability to perceive (Capacity of Perception)
A witness must be able to perceive an event. Corollary to this
capacity to perceive is the requirement that the witness must have
personal knowledge of the facts surrounding the subject matter of
his testimony. Without this personal knowledge, the witness lacks
the competence to testify.
Ability to make known his perception to others
This ability involves two important factors:
1. Capacity of Recollection
2. Capacity of Communication
PEOPLE vs. TUANGCO
The Supreme Court discussed the competence of deaf-mute
witnesses. Deaf-mutes are competent witnesses where they:
LAW ON EVIDENCE
(1) Can understand and appreciate the sanctity of an oath;
(2) Can comprehend facts they are going to testify on; and
(3) Can communicate their ideas through a qualified interpreter.
Oath or affirmation
The willingness to take an oath or affirmation is an essential
qualification of a witness. No court would allow the testimony of
someone who desires to testify but refuses to swear or make an
affirmation.
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
God” and that if he does not, he will later on answer for all the lies
he is guilty of (perjury or false testimony).
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
an affirmation comes into play.
In affirmation, the witness affirms by uttering the statement “I
hereby affirm that everything I am going to testify on is the truth,
the whole truth, and nothing but the truth.”
The law, therefore, does not distinguish between a witness who
believes in God and a witness who is an atheist.
Competence vs. Credibility of a witness
Competency of a witness has reference to the basic qualifications of
a witness as his capacity to perceive and communicate his
perception to others. It also includes the absence of any of the
disqualifications imposed upon a witness.
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
and trustworthiness or reliability of the testimony.
In deciding the competence of a witness, the court will not inquire
into the trustworthiness of a witness. Accordingly, a prevaricating
witness or one who has given contradicting testimonies is still a
competent witness.
x x x Religious or political belief, interest in the outcome of the case,
or conviction of a crime unless otherwise provided by law, shall not
be ground for disqualification. x x x
Religious or political belief
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
latter? Don’t you think that the bias that it creates should be a
ground for disqualification?
A: Not really. Bias is not even a basis for declaring a witness
incompetent to testify. (US vs. Pachecho) And besides, a fabricated
testimony can be revealed by a skillful cross-examination.
Interest in the outcome of the case
PEOPLE vs. BONIAO (1993)
Relationship does not by itself preclude the trier of facts to believe
testimony or to impair credibility of the witnesses. Witnesses are
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not disqualified by the Rules of Court on that ground alone. The
Supreme Court held that it should not to be lightly supposed that
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
persons whom they believe to be innocent.
Atty JZE: Again, with respect to admissibility, it is okay. But with
respect to credibility, not necessarily. It depends on the weight given
by the court.
Conviction of a crime (unless otherwise provided by law)
Mere pendency of a criminal case does not disqualify a witness from
testifying. Moreover, in case of conviction, a convict will not be
stripped of his ability to perceive and to communicate his perception
to others just because he is convicted.
PEOPLE vs. TANEO (1993)
The fact that the witnesses have been convicted does not affect
their believability. In the absence of evidence to show any reason or
motive why witnesses for the prosecution should have testified
falsely, the logical conclusion is that no improper motive existed,
and that their testimony is worthy of full faith and credit.
PEOPLE vs. DE LEON (1995)
An accused is being prosecuted for murder and the witness for the
prosecution is also a murderer. The defense questions the credibility
of the witness-murderer. The defense counsel also raises the fact
that his client is merely charged with murder and is pending
investigation but the witness who will testify against the accused has
already been convicted of murder, thereby creating a doubt as to his
qualification as a witness. Is the defense counsel correct?
No. Clearly, the mere pendency of a criminal case against a person
does not disqualify him from becoming a witness. As a matter of
fact, conviction of a crime does not disqualify such person from
being presented as a witness unless otherwise provided by law.
Unless otherwise provided by law
Art. 821, Civil Code. The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document,
perjury or false testimony.
Other examples not falling squarely with Section 20
1. Is a party declared in default disqualified to testify as a witness?
CAVILI vs. FLORENDO (1987)
FACTS: A filed a complaint against B and C. B failed to file an
answer and so, he was subsequently declared in default after A's
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
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
witness.
ISSUE: Is a party declared in default disqualified to testify as a
witness?
LAW ON EVIDENCE
HELD: No. There is no provision of the Rules disqualifying parties
declared in default from taking the witness stand for non-
disqualified parties. The law does not provide default as a
disqualification. The specific enumeration of disqualified witnesses
excludes the operation of causes of disability other than those
mentioned in the Rules. It is a maxim of recognized utility and merit
in the construction of statutes that an express exception,
exemption, or saving clause excludes other exceptions.
Rationale: As opposed to a party litigant, a witness is merely a
beholder, a spectator or onlooker, called upon to testify to what he
has seen, heard, or observed. As such, he takes no active part in the
contest of rights between the parties. Cast in the cited role of
witness, a party in default cannot be considered as "a part in the
trial." He remains suffering the effects of an order of default.
2. Is drunkenness a ground to disqualify a witness? No.
PEOPLE vs. MELENDRES (2003)
As to the alleged mental derangement of Rodrigo, it is true that
during his testimony in open court on December 15, 1993, he was
uncooperative, defiant and even disrespectful to the court. The trial
court even cited him for direct contempt and ordered his
incarceration. However, it appeared from the order of the trial court
that Rodrigo's defiance at that time was not a result of his alleged
mental incapacity but because he was drunk. Moreover, while the
prosecution admitted that Rodrigo has experienced "some mental
shock sometime ago", no evidence was presented by the defense to
impeach him on ground of incompetence.
On the other hand, a review of the transcript of stenographic notes
taken during the four days that Rodrigo testified and underwent
examination on the witness stand reveals that, except for the
incident on December 15, 1993, he is responsive to the questions
propounded and was able to convey sufficiently intelligent answers.
Under Section 20, Rule 130 of the Revised Rules of Court, all persons
who can perceive, and perceiving, can make known their perception
to others, may be witnesses.
Atty JZE: What you need to remember here is that the mere fact that
the witness is drunk does not necessarily result to his disqualification.
A witness only needs to be responsive to the questions and he should
be able to give sufficiently intelligent answers.
Disqualification by reason of mental incapacity or immaturity
Rule 130, Section 21. Disqualification by reason of mental
incapacity or immaturity. — The following persons cannot be
witnesses:
(a) Those whose mental condition, at the time of their production for
examination, is such that they are incapable of intelligently making
known their perception to others;
(b) Children whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are examined
and of relating them truthfully.
Mental incapacity
To be disqualified as a witness by reason of mental incapacity, the
following must concur:
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1. The person must be incapable of intelligently making known his
perception to others; and
2. His incapability must exist at the time of his production for
examination.
Section 21 (a) establishes the rule that the mental incapacity of a
witness at the time of his perception of the events subject of the
testimony does not affect his competency as long as he is
competent at the time he is produced for examination to make
known his perception to others.
The test is simple: Is the mental condition of the proposed witness
at the time he is called to testify is such that he is incapable of
intelligently making known his perception to others? The answer to
this question will determine whether or not a person is a mentally
competent witness.
Examples:
An insane person cannot be called to testify, as a general rule,
because he has a different perception of reality. However, by way of
exception, he may be called to testify during his lucid interval.
A mental retardate is not per se disqualified from being a witness,
because a mental retardate still has the ability to make known his
perception to others. A mental retardate is not, by reason of such
handicap alone, disqualified from testifying in court.
One who has been diagnosed with poor memory is likewise not
disqualified as a witness unless his condition affects his ability to
make known his perception to others.
Immaturity
To be disqualified as a witness by reason of immaturity, the
following must concur:
1. The mental maturity of the witness must render him incapable
of perceiving the facts respecting which he is examined.
2. He is incapable of relating his perception truthfully.
Note that in disqualification by reason of mental incapacity under
Section 21(a), the incompetence of the witness must exist, not at
the time of his perception of the facts, but at the time he is
produced for examination, and consists in his inability to intelligently
make known what he has perceived.
On the other hand, in disqualification by reason of immaturity, the
incompetence of the witness must occur at the time he perceives
the event including his incapability to relate his perceptions
truthfully.
PEOPLE vs. GALAS (1996)
All persons who can perceive, and perceiving, can make their known
perception to others, may be witnesses. Insofar as child witnesses
are concerned, only those whose mental maturity is such as to
render them incapable of perceiving the facts respecting which they
are examined and of relating them truthfully are disqualified.
Therefore, any child, regardless of age, can be a competent witness
if he meets the following criteria:
1. Capacity of observation
2. Capacity of recollection
LAW ON EVIDENCE
3. Capacity of communication
The rule on disqualification by reason of immaturity must, however,
be construed in relation to the Rule on Examination of a Child
Witness.
Child Witness
A child witness is any person who, at the time of giving testimony, is
below the age of eighteen (18) years.
Presumption in favor of competence of a child witness
Section 6. Competency. – Every child is presumed qualified to be a
witness. However, the court shall conduct a competency examination
of a child, motu proprio or on motion of a party, when it finds that
substantial doubt exists regarding the ability of the child to perceive,
remember, communicate, distinguish truth from falsehood, or
appreciate the duty to tell the truth in court. (Rule on Examination of
a Child Witness)
MARITAL DISQUALIFICATION RULE (SPOUSAL IMMUNITY)
Rule 130, Section 22. Disqualification by reason of marriage. -
During their marriage, neither the husband nor the wife may testify
for or against the other without the consent of the affected spouse,
except in a civil case by one against the other, or in a criminal case
for a crime committed by one against the other or the latter's direct
descendants or ascendants.
The rule prohibiting testimony by one spouse against the other is
based on society’s intent to preserve the marriage relations and
promote domestic peace. This rule is also intended to discourage
the commission of perjury.
PEOPLE vs. FRANCISCO (1947)
The specific reasons for the marital disqualification rule are as
follows:
1. There is identity of interests between husband and wife;
2. If one were to testify for or against the other, there is a
consequent danger of perjury;
3. 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
prevent domestic disunion and unhappiness; and
4. Where there is want of domestic tranquility, there is danger of
punishing one spouse through the hostile testimony of the other.
Adverse or favorable testimony covered by the Rule
The marital disqualification rule forbids the husband or the wife to
testify for or against the other without the consent of the affected
spouses, except in those cases authorized by the rule. The
prohibition extends not only to a testimony adverse to the spouse
but also to a testimony in favor of the spouse. It also extends to both
criminal and civil cases because the rule does not distinguish.
Valid marriage is essential
In order that the husband or wife may claim the privilege, it is
essential that they be validly married. The rule, therefore, does not
cover common-law spouses and illicit cohabitation.
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Furthermore, Section 22 requires not only a valid marriage but also
the existence of such valid marriage at the moment the witness-
spouse gives the testimony. So, it does not matter if the facts subject
of the testimony occurred or came to the knowledge of the witness-
spouse before the marriage. The affected spouse may still invoke
the rule by objecting to the testimony as long as it is offered during
the marriage.
Hence, the rule does not prohibit a testimony for or against the
other after the marriage is dissolved. One may now testify for or
against the other despite an objection interposed by the latter
because there is no more marriage to speak of.
Illustration: Before the marriage of W to H, she witnessed the
murder of X by H but she never reported what she witnessed to the
authorities. A year after the murder, H and W married. Barely six
months after the marriage, W became a battered wife and to get
even with H, she decided to report the murder to the police.
Q: May she testify against H over the latter’s objection even if the
murder took place before the marriage?
A: She cannot testify over the objection of H. The situation is
covered by the marital disqualification rule.
Q: Suppose a year after the marriage, the marriage is annulled, may
W now testify despite the objection of H?
A: She can now testify after the marriage is annulled. The
prohibition no longer applies since the testimony is to be offered
after, not during the marriage.
Coverage of the testimony
The testimony covered by the marital disqualification rule not only
consists of utterances but also the production of documents.
Witness-spouse need not be a party to the case
The rule applies whether or not the witness-spouse is a party to the
case but the other spouse must be a party.
Can the marital disqualification rule be waived?
Yes. The testimony is prohibited only over the objection of the
affected spouse or the spouse against whom the testimony is
offered. It goes without saying that the testimony is admissible
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
be waived and it may be done so impliedly or expressly.
Exceptions to the marital disqualification rule
1. in a civil case by one against the other,
2. or in a criminal case for a crime committed by one against the
other, or the latter's direct descendants or ascendants
Note that in a criminal case, the exception does not cover a crime
committed against the other spouse’s collateral relatives. This is only
limited to direct descendants or ascendants.
May an estranged spouse testify against the other?
LAW ON EVIDENCE
ALVAREZ vs. RAMIREZ (2005)
FACTS: Susan Ramirez (respondent) is the complainant in a criminal
case for arson of her house against the accused Maximo Alvarez
(petitioner). Maximo is the estranged husband of Esperanza Alvarez,
the sister of the respondent. At the time of the alleged arson
committed by Maximo, Esperanza was living with her sister.
During trial, Esperanza was called to the witness stand to testify
against her husband. Petitioner and his counsel raised no objection.
In the course of Esperanza’s direct testimony against Maximo, the
latter showed “uncontrolled emotions”, prompting the trial judge to
suspend the proceedings.
Subsequently, before the continuation of the testimony of his
estranged wife, petitioner, through counsel, filed a motion to
disqualify Esperanza from testifying against him.
ISSUE: May an estranged spouse testify against the other spouse?
HELD: Yes. The act of Maximo in setting fire to the house of his
sister-in-law Susan Ramirez, knowing fully well that his wife was
there, and in fact with the alleged intent of injuring the latter, is an
act totally alien to the harmony and confidences of marital relation
which the disqualification primarily seeks to protect. The criminal act
complained of had the effect of directly and vitally impairing the
conjugal relation. It underscored the fact that the marital and
domestic relations between her and the accused-husband have
become so strained that there is no more harmony, peace or
tranquillity to be preserved.
The Supreme Court has held that in such a case, identity of interests
is non-existent. In such a situation, the security and confidences of
private life which the law aims to protect are nothing but ideals
which through their absence, merely leave a void in the unhappy
home. Thus, there is no longer any reason to apply the Marital
Disqualification Rule.
It should be stressed that as shown by the records, prior to the
commission of the offense, the relationship between petitioner and
his wife was already strained. In fact, they were separated de facto
almost six months before the incident. Indeed, the evidence and
facts presented reveal that the preservation of the marriage
between petitioner and Esperanza is no longer an interest the State
aims to protect.
Atty JZE: If we are to apply the marital disqualification rule strictly,
the prohibition would cover the testimony of an estranged spouse
against the other because a separation de facto does not sever the
marriage bonds and the spouses remain legally married to each
other. A testimony under such a situation would still technically be a
“testimony during their marriage.”
However, in this case, the literal construction of the rule has been
rejected by the Supreme Court because of the strained relations
between the spouses. Where the marital and domestic relations are
so strained that there is no more harmony to be preserved nor peace
and tranquility which may be disturbed, the reason based upon such
harmony and tranquility fails. Thus, the marital disqualification rule
will not apply.
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SURVIVORSHIP DISQUALIFICATION RULE
Rule 130, Section 23. Disqualification by reason of death or insanity
of adverse party. – Parties or assignors of parties to a case, or
persons in whose behalf a case if prosecuted, against an executor or
administrator or other representative of a deceased person, or
against a person of unsound mind, upon a claim or demand against
the estate of such deceased person or against such person of
unsound mind, cannot testify as to any matter of fact occurring
before the death of such deceased person or before such person
became of unsound mind.
Also called:
1. The Dead Man’s Statute [This rule is not a rule of
procedural law, rather it is a rule of substantive law prior
to the promulgation of the Rules of Court. This is actually a
product of statute, not a product of rule-making by the
SC.]
2. Survivorship Disqualification Rule [This is the more
appropriate appellation because that is what the rule
really seeks—to disqualify a survivor.]
3. Surviving Parties Rule
Review: Parol Evidence Rule
Rule 130, Section 9. Evidence of written agreements. – When the
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 parties and their successors in interest, no evidence of such terms
other than the contents of the written agreement.
However, a party may present evidence to modify, explain or
add to the terms of the written agreement if he puts in issue in his
pleading: xxx
The term “agreement” includes wills.
Situation that can be covered by the PER:
 In Gerald’s will, there is a bequest of P200,000 to Matteo.
During the probate of the will, Matteo claimed that Gerald
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
but there is information coming allegedly from the deceased
himself that Matteo will be receiving P2 million, not
P200,000.]
 Matteo cannot prove by extrinsic evidence that the bequest
was P2 million and not P200,000. This is not allowed under
the PER. Otherwise, there will be a lot of spurious claims
against the estate of a deceased person. [And if you recall
our discussion regarding PER, you cannot testify in court
about facts that are not found in an agreement, in this case a
will, if the effect of such testimony is to change, modify or
add to the testamentary dispositions. Because If the rule was
otherwise, I can simply go to any case or estate’s
executor/administrator or any case for probate of the will
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?
LAW ON EVIDENCE
 The dangers sought to be avoided by the requirement of the
rule is present in the making of wills and are deemed to be
more prevalent inasmuch as the maker of a will, the
decedent, can no longer object to attempts to vary his
testamentary intent as his voice is already silenced by death.
 [Based on decisions by the SC, the reason behind the
enactment of the PER would be the fact that his lips are
already sealed by the death. You cannot therefore contradict
what remains of his testamentary dispositions. There’s
phrase “sealing of the lips” or “his voice is already silenced by
death.”+
The situation under Section 23:
 Matteo approaches Gerald to borrow P1 million to be paid in
2 months time. Without hesitation, Gerald gives Matteo the
amount requested without any contract, receipt or any other
written proof of the loan. [So the existence of the loan is only
known to the two parties—the debtor and the creditor.]
Exactly a day before the agreed date of payment, Matteo
was electrocuted then fell of the balcony of his condo, hit by
a train and then splattered to pieces. In short, he died.
 What does Gerald do? He goes to the executor of what
remains of the estate of Matteo, Rayver, and tells him of the
debt of Matteo. Rayver, having no knowledge of the debt,
refuses to pay Gerald. Gerald is forced to sue the estate of
Matteo.
 During the trial, can Gerald testify and establish his claim
which existed before Matteo died? No. It is forbidden under
the Dead Man’s Statute.
 According to Riano: Gerald is rendered incompetent to
testify as to the transaction he had with Matteo. He is
incompetent because of the possibility that his claim is
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
is the survivor. Matteo cannot lie. He is dead and cannot
answer back. He cannot disprove the claim of Gerald.
 To level the playing field between the lucky survivor and the
poor deceased, the rule would seal the lips of the survivor by
declaring him incompetent to testify on the transaction
between him and the deceased. The rule is one that does not
protect the survivor even at the risk of not paying a just and
valid claim because it is the survivor who has the stronger
reason to file a false claim. The rule is for the protection of
the guy who died. Hence the name, Dead Man’s Statute. *It’s
called that way because the rule protects the dead man, or
more particularly, his estate against spurious claims.]
 It doesn’t really matter if there is a miscarriage of justice.
Object of the rule
 The SC had repeatedly held in not a few cases that the object
of the rule is to: guard against the temptation to give false
testimony in regard to the transaction on the part of the
surviving party and thereby put the parties upon equal
terms. Its purpose is to close the lips of the plaintiff when
death has closed the lips of the defendant, in order to
remove from the defendant the temptation to do falsehood
and the possibility of fictitious claims against the deceased
(Tan vs. CA, 1998).
In what case is it applied?
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 The rule applies only to a civil case or a special proceeding
[with particular reference to the death of a person].
 Example of special proceeding that has some implications:
1. where the estate of a deceased person is to be
settled
2. if there is a will, cases for the probate of a will, or
3. in petitions for guardianship.
 The rule not only covers instances where the contracting
party is dead but also covers instances where the contracting
party becomes of unsound mind. And under Rule 92, that
person is considered incompetent and a petition of
guardianship over his person and his property may actually
be instituted by the interested party.
 Thus, if it is a criminal case or an administrative proceeding,
you do not apply the rule.
What is the cause of action?
 It is a claim against the estate of the deceased person or
insane person.[Hence, if it is a claim by the estate againsta
survivor, the rule will not be applicable. The rule does not
apply when the estate is the plaintiff. The estate has to be
the defendant here.]
 Thus, if a person is still alive and not insane, you do not apply
the rule. The claim can be prosecuted by an ordinary
personal action. [What about lucid intervals? The status of a
person who is formerly insane but now is laboring under a
lucid interval is in possession of his full mental faculties. He
has capacity to act. So, no problem there. You do not apply
Section 23; file an ordinary civil action.]
 The rule does not apply when the action brought is not
“against” the estate, or not upon a claim “against” the
estate.
Who is the defendant?
1. The executor *when there’s a will+ or administrator *when
there’s no will, or when there is a will but does not provide
for an executor, or when there’s an executor but he
declines the appointment] of the estate of a deceased
person; or
2. Other representative of such deceased person (example:
an heir or heirs where no executor or administrator is
appointed, or a surviving spouse); or
3. The person of unsound mind himself.
Note:
 Under Rule 92 and 93, a guardian can be appointed over
incompetent persons, including those persons suffering the
penalty of civil interdiction or who are hospitalized lepers,
prodigals [or spendthrifts], deaf and dumb who are unable to
read and write, those who are of unsound mind, even though
they have lucid intervals, and persons not being of unsound
mind, but by reason of age, disease, weak mind, and other
similar causes, cannot, without outside aid, take care of
themselves and manage their property, becoming thereby an
easy prey for deceit and exploitation.
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
and his property.
LAW ON EVIDENCE
 Situation: A contracted a debt with B. B gave him the money
without anything recorded, no document whatsoever to
prove the debt other than by word of mouth. Then, the
debtor becomes insane. What happens? How do you collect?
Do you wait until that person is under the lucid interval stage
before you can collect?
 Section 23 provides: “…(a)gainst an executor or
administrator or other representative of a deceased person,
or against a person of unsound mind…”
 The rule does not seem to mention a guardian of a person of
unsound mind as defendant. [The rule does not apply to a
representative of a person of unsound mind because if that
was the intention of the law, there should have been no
comma after “deceased person”.+
General Powers and Duties of Guardians
Rule 96, Section 2. Guardian to pay debts of ward.— Every guardian
must pay the ward's just debts out of his personal estate and the
income of his real estate, if sufficient; if not, then out of his real
estate upon obtaining an order for the sale or encumbrance thereof.
Question: Can a creditor-plaintiff testify to establish an oral claim
against the guardian of the insane person? In other words, is Section
23 inapplicable in cases where the defendant is the guardian of the
insane person?
 No [a guardian can be a defendant]. The same possibility of
making spurious claims is similarly extant even if a guardian
is appointed who has the power to pay the debts of the
incompetent person.
 The purpose of guardianship is to safeguard the rights and
interests of the incompetent person and the court should be
vigilant to see that the rights of such persons are properly
protected.
 *Let’s say, a person sues an insane person. He brings the
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
not only for P1 million but P500 million. Because he is
insane!  So the court has to appoint a guardian. Whether
the guardian is appointed prior or during a case, the law
ought to apply still.]
 [Now, a guardian is already appointed. Can the guardian now
ascertain whether the claim is real, without any written
agreement or contract whatsoever? No. What is the only
source of the guardian’s information? The insane person,
who cannot be trusted to give the correct information. And
the law should be applicable even if it’s merely the guardian
who is the defendant in a civil case.]
Example: Matteo approaches Gerald to borrow P1 million to be paid
in 2 months time. Without hesitation, Gerald gives Matteo the
amount requested without any contract, receipt of any other
written proof of the loan. Exactly a day before the agreed date for
payment, Matteo became insane, his mental condition now
complementing his looks .
 What does Gerald do? He goes to the guardian of Matteo,
Rayver, and tells him of the debt of Matteo. Rayver, having
no knowledge of the debt, refuses to pay Gerald. Gerald is
forced to sue Rayver.
 Rayver cannot confirm the existence or validity of the debt
because Matteo is of course insane. [Remember, when you
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based on the lectures of ATTY. JESS ESPEJO
sue, you always implead the guardian. So the guardian
becomes a defendant as well, by reason of the guardianship.]
Who is the plaintiff?
 The plaintiff is the person who has a claim against the estate
of the deceased or person of unsound mind.
 The rule will not apply where the executor or administrator is
the plaintiff.
What is prohibited?
 The testimony of the plaintiff-witness or his privies which, by
such testimony alone, would tend to establish a claim against
the deceased or insane person.
 The subject matter of the testimony is a matter of fact
occurring before the death of such deceased person or before
such person became of unsound mind. [If it occurred after, it
is not covered by the rule. The transaction must occur before
and must establish a claim or demand against the estate of
the deceased person or the person of unsound mind.]
 [The plaintiff who has no proof whatsoever as to his claim
against the deceased person or insane person goes to court
and wants to establish by his testimony alone that the estate
has a debt to him. That is what is prohibited. But can he
testify, for example, that the deceased person also owes him
moral damages? He can do that. Because this is merely
incidental.]
o [Therefore, if it is not related to the main claim, he
can testify about it even if he is the plaintiff-witness-
survivor.]
 In other words, it is the adverse testimony of the survivor
that is prohibited under the Rule.
 Thus, where the testimony of the survivor is favorable (i.e.,
establishes a claim by the estate and not against it), such
testimony is not prohibited.
The Rule is very harsh.
 The survivorship disqualification rule raises legitimate
questions on the justness of the rule. In trying to avoid
fictitious claims against the estate, it ignores the rights of
persons with legitimate claims and whose lips are sealed
when the law levels the playing field so to speak.
EXCEPTIONS TO THE RULE (memorize):
1. Testimony of mere witnesses who are neither party
plaintiffs, nor their assignors, nor persons in whose
behalf a case is prosecuted, nor to a nominal party, nor to
officers and stockholders of a plaintiff corporation.
a. [Mere witnesses who are neither party plaintiffs
nor their assignors. Example: A contracted a
debt from B. They did not draw up a promissory
note. A died. B cannot testify. But what if the
secretary of B, an employee of the creditor,
witnessed the transaction? Will the secretary be
barred from testifying? The answer is no.]
Example of Riano: The case is an action for a sum of money against
the decedent’s estate. The decedent is Mr. D, the debtor. The
plaintiff is Mr. C, the creditor. Mr. C claims that Mr. D borrowed
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
LAW ON EVIDENCE
calls his secretary to testify about the transaction that occurred in
her presence.
 Here, the witness is not the survivor. Thus, offering the
testimony of a so-called “disinterested witness” is not a
transgression of the rule since the prohibition extends only
to the party who survives or person in whose behalf the
case is prosecuted. [When you talk of privity here, you’re
talking about financial privity. Now, if I assign the credit to
somebody else, he is a successor-in-interest. He is also
prohibited from testifying. But if my witness is simply a
mere employee, the rule will not be applicable.]
 Ordinary witnesses, who are not the plaintiff, assignor of
plaintiff, or person in whose behalf the case is prosecuted
may testify (Francia vs. Hipolito, 93 Phil. 968). The dead
man’s statute does not operate to close the mouth of a
witness as to any matter of fact coming to his knowledge
in any other way than through personal dealings with the
deceased person, or communication made by the
deceased to the witness.
SANSON vs. CA
(GR 127745, 22 April 2003)
Felicito filed before the RTC a petition for the settlement of the
estate of Sy (the deceased). Felicito claimed that the deceased was
indebted to him in the amount of P603,000 and to his sister
Celedonia in the amount of P360,000.
Felicito, in support of the claim of his sister Celedonia, testified
that she has a transaction with the deceased.
Celedonia, in support of the claim of her brother Felicito,
testified that he knew that the deceased had a transaction with his
sister.
The administratrix objected to the testimonies upon the ground
that the witnesses are disqualified under the Dead Man’s Statute.
Is it admissible? Yes. Sanson’s and Celedonia’s claims against
the same estate arose from separate transactions. Sanson is a third
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
testify on the other’s transaction. [If it were Felicito testifying for his
own transaction with the deceased, disqualified. Same thing with
respect to the sister.]
Principle to remember
 The rule only applies to cases where the transaction is
unwitnessed. If there is any other witness, the claim can
be proved. [The witness, however, must be
“disinterested”.+
LICHAUCO vs. ATLANTIC GULF
When the plaintiff is a corporation, the officers or
stockholders thereof are not disqualified. The rule does not apply to
persons who are merely employed by such disqualified parties or
assignors of parties.
2. If the person or persons mentioned under the rule file/s a
counterclaim.
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 Example: X sues the estate of Y for the collection of
a debt which was obtained prior to the death of Y.
The executor filed a counterclaim.
 Effect: X can now testify against the estate of Y. Is
he cannot do so, he has nothing with which to
defend against the counterclaim. It would be unfair
if he cannot testify because, if his lips are sealed,
there is virtually a confession of judgment already.
SUNGA-CHAN vs. CHUA (2001)
Petitioner filed a compulsory counterclaim against respondents
in their answer before the trial court, and with the filing of their
counterclaim, petitioners themselves effectively removed this case
from the ambit of the rule. When it is the executor or administrator
or representatives of the estates that sets up the counterclaim, the
plaintiff, herein respondent, may testify to occurrences before the
death of the deceased to defeat the counterclaim. Moreover, as
defendant in the counterclaim, respondent is not disqualified from
testifying as to matters of facts occurring before the death of the
deceased, said action not having been brought against but by the
estate or representatives of the deceased.
3. Where the deceased contracted with the plaintiff
through an agent and said agent is alive and can testify,
but the testimony of the plaintiff should be limited to
acts performed by the agent (Goñi vs. CA, GR L-27434, 23
September 1986).
 [If you are acting through an agent, the agent is
only an extension of the personality of the
principal. Under the law, they’re one and the
same under certain conditions. But it is different
under the SDR because if the agent is alive and
can testify, he can testify but only with respect
to acts performed by the agent.]
 [How to make sense out of this? An agent is like
an employee and, in cases where the plaintiff is
the corporation, he can actually testify. Also, if
there is an agent, the transaction is no longer
unwitnessed. There is another witness, who can
corroborate the testimony of the plaintiff.]
4. Land registration cases instituted by the deceased’s
representative, where the oppositor is considered as
defendant or in cadastral cases where there are no
oppositors.
 [Example: When you file a land registration case
and you are the applicant. You are like a
petitioner. But there is no definite party
defendant. In fact, because it is a proceeding in
rem, it’s supposed to be filed against the whole
world. When it is filed, there is already notice to
the whole world that anybody who has a claim
over the land should come forward and present
their claims.]
 [What happens here would be, an oppositor
appears and that oppositor happens to be the
representatives of the deceased person, who
becomes the defendant. The applicant-plaintiff
here is the survivor. More so in cadastral
proceedings where it is the government itself
who is the plaintiff and invites all those
interested to make their claims known. It is the
initiative of the government.]
LAW ON EVIDENCE
5. When there is waiver.
a. By not objecting to plaintiff’s testimony on
prohibited matters (Marella vs. Reyes, 12 Phil. 1;
Ty vs. Ty, G.R. No. 165696)
 [What to do? Just manifest your
objection for the record. But do not
cross-examine.]
b. By cross-examining the plaintiff on prohibited
matters (Tongco vs. Vianzon, 50 Phil. 698)
c. By calling witnesses to testify on prohibited
matters (Arroyo vs. Azur, 76 Phil. 493)
d. When the plaintiff’s deposition is taken by the
representative of the estate or when counsel for
the representative cross-examined the plaintiff
as to matters occurring during the deceased’s
lifetime (Goñi vs. CA, G.R. No. L-27434)
e. By offering evidence to rebut the prohibited
testimony
6. If the plaintiff is the executor or administrator or other
representative of a deceased person, or the person of
unsound mind.
 [The plaintiff here is no longer the survivor. But
what if the defendant here, the survivor, files a
counterclaim? Analyze it on your own.]
7. When the testimony refers to fraudulent transactions
committed by the persons mentioned in the rule,
provided such fraud is first established by other evidence.
 When there is an imputation of fraud against the
deceased, the plaintiff is not barred from
testifying to such fraud (Go Chi Gun vs. Co Cho,
96 Phil. 622)
8. Negative testimony, that is, testimony that a fact did not
occur during the lifetime of the deceased.
 The plaintiffs-appellees did not testify to a fact
which took place before their representative’s
death, but on the contrary denied that it had
taken place at all, i.e. they denied that a
liquidation had been made or any money
remitted on account of their shares which is the
ground of their claim. The rule does not apply.
(Mendezona vs. Vda. De Goitia, 54 Phil. 557)
 [The claim relates to a negative fact, that there
was no liquidation that was made in the
partnership. According to the SC, the rule does
not apply.]
9. Testimony on the present possession by the witness of a
written document signed by the deceased because such
fact exists even after the death of the decedent.
 If the proffered testimony, while ordinarily
barred under the survivorship disqualification
rule, is actually founded on a document. If the
claim of plaintiff and the testimony of his
witnesses are based on a contract or document,
and not on dealings and communications with
the deceased, the testimony is admissible. This is
also known as the Foundation Testimony
Exception.
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 [Here, the testimony is already corroborated by
a document and the PER and BER may be
applied, as the case may be.]
BORDALBA vs. CA (2002)
Since the claim of private respondents and the testimony of
their witnesses in the present case is based, inter alia, on the 1947
Deed of Extrajudicial Partition and other documents, and not on
dealings and communications with the deceased, the questioned
testimonies were properly admitted by the trial court.
SANSON vs. CA (2003)
What the Dead Man’s Statute proscribes is the admission of
testimonial evidence upon a claim which arose before the death of
the deceased. The incompetency is confined to the giving of
testimony. Since the separate claims of Sanson and Celedonia are
supported by checks-documentary evidence, their claims can be
prosecuted on the bases of said checks.
10. When the defendant/s, though heirs of the deceased, are
sued in their personal and individual capacities.
 When the defendant/s, though heirs of the
deceased, are sued in their personal and
individual capacities, the plaintiff may testify
against them (Go Chi Gun vs. Co Cho, supra.)
11. In actions against a partnership
 Example: Matteo, a partner in RayverMaYa
partnership with Rayver and Richard Yap,
approaches Gerald, to borrow P1 million to
infuse capital into the partnership to be paid in
two months time. Without hesitation, Gerald
give Matteo the amount requested without any
contract, receipt or any other written proof of
the loan. Exactly a day before the agreed date
for payment, Matteo died [this time, because of
AIDS ].
 Gerald approaches Rayver and Richard to collect
the debt. They refuse and claimed that they have
no knowledge of the debt. Gerald was forced to
sue the RayverMaYa partnership. Gerald was to
testify about his claim when Rayver and Richard
objected, claiming that the Dead Man’s Statute
prohibits him from testifying.
o Who is testifying? The survivor, Gerald.
o What is he testifying about? A claim
based on a matter of fact which
occurred prior to the death of Matteo.
o Who is the plaintiff? Gerald.
o Who is the defendant? Not the estate
of Matteo. It’s the partnership.
 When a partner dies, there are two options for
the surviving partners:
1. They can continue the partnership. In this
case, Article 1840(3) applies. [They
continued the partnership, which is why
they can be sued as a partnership. The SDR
is not applicable.]
2. Or they can dissolve, under Article 1835.
[Take note of the example. The debt was
contracted for infusing capital into the
partnership. Regardless of whether it is a
LAW ON EVIDENCE
partnership debt or a personal debt, just
the same. The partnership can be sued and
the survivor can testify.]
12. When the survivor’s testimony is favorable to the
deceased (Icard vs. Marasigan, 71 Phil. 419)
 When is it favorable? When the testimony tends
to establish a claim by the estate or to negate a
claim against it. [Even if you are the survivor and
you are testifying but you are actually negating a
claim or establishing a claim by the estate, that is
allowed.]
13. Opening Doors Exception
 If the disable party “opens the door” by
introducing a testimony or a deposition
concerning conversations and/or events in the
presence of the deceased person.
o Reason: There is, in effect, a waiver of
the rule. (Arroyo vs. Azur, supra.)
 [Example: I am the executor-defendant. I opened
the door by introducing a deposition that would
refer to a transaction that is the basis of the
claim of the survivor. And the rule does not
apply.]
Whose deposition contains the prohibited matters?
 When it is the deposition of the plaintiff.
a. If the defendant himself introduces into evidence
the deposition of the survivor which contains the
matter of fact occurring before the death of the
deceased person, he waives the protection of the
rule.
b. If it is the plaintiff himself, the defendant can object.
 When it is the deposition of the defendant.
a. This is admissible because he is not the survivor.
b. Also, if the deposition of the defendant tends to
support the claim of the survivor, it is considered an
admission against interest.
c. Thus, it does not matter who introduces the
deposition into evidence. If it is the survivor, it is
allowable being an admission against interest. If it is
the executor, he waives the protection of the law by
himself introducing evidence on prohibited matters.
 When it is the deposition of the deceased.
a. If it is the defendant (executor/administrator) who
presents the deposition, he “opens the door”.
Plaintiff may now testify on the prohibited matters.
b. If it is the plaintiff (survivor), the deposition will be
allowed because the dead man’s statute does not
apply anymore under the foundation testimony
exception. [It is only when the plaintiff presents his
own testimony that it will not be allowed under
Section 23.]
14. Only under American Jurisprudence:If the testimony to be
introduced relates to any fact relating to the heirship of
the decedent.
 [There is yet no case regarding this exception.
Just know that this exists.]
GARCIA vs. CAPARAS (2013)
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In their Complaint, Garcia and Salamat claimed that when their
father Eugenio died, they entered into an agreement with their
brother Pedro that they would alternately farm the land on a “per-
season basis”. They further claim that the landowner Makapugay
knew of this agreement and that, when Makapugay passed away,
Pedro reneged on their agreement excluding them and
misrepresenting to Amanda [the successor-in-interest of
Makapugay+ that he is Eugenio’s sole heir.
As a result, Amanda was deceived into installing Pedro as sole
agricultural lessee in their 1979 Agricultural Leasehold Contract.
When Amanda learned of Pedro’s misrepresentation, she executed
on July 10, 1996 an Affidavit stating among others that Pedro
assured her that he would not deprive Garcia and Salamat of their
cultivatory rights.
When Pedro passed away, his wife Dominga took over the land
and, despite demands, continued to deprive them of their rights as
co-lessees.
On October 24, 1996, Garcia and Salamat filed a Complaint for
nullification of leasehold and restoration of rights as agricultural
lessees against Pedro’s heirs, represented by his surviving spouse
Dominga before the office of the Provincial Agrarian Reform
Adjudicator (PARAD).
 What is the matter of fact that occurred before the death of
Pedro? The averment in Amanda’s affidavit that Pedro
assured her that he will not deprive Garcia and Salamat of
their cultivatory rights.
 Who are the plaintiffs/survivors? Garcia and Salamat.
 Who is the defendant? Pedro’s surviving spouse and lawful
successor-in-interest Dominga. [This falls under the term
“other representatives of the deceased person.”+
Does the SDR apply in the case?
 SC said yes. Amanda’s declaration in her affidavit covering
Pedro’s alleged admission and recognition of the alternate
farming scheme is inadmissible for a violation of the Dead
Man’s Statute. Since Pedro is deceased and Amanda
declaration which pertains to the leasehold agreement
affects the 1996 Kasunduan sa Buwisan ng Lupa, which he
is assigned entered into with petitioners and which is now
the subject matter of the present case and claim against
Pedro’s surviving spouse and lawful successor-in-interest
Dominga. Such declaration cannot be admitted and used
against the latter who is placed in an unfair situation by
reason of her being unable to contradict or disprove such
declaration as a result of her husband’s xxx.
 [The outcome of the case would have been different had
Amanda been presented as a witness. Because Amanda is
a witness to the assurance given by Pedro to the siblings.]
 Anything wrong with the decision? Nothing much except
maybe the fact that the case is considered an agrarian
dispute under Section 3(d) of RA 6657.
o Remember: Section 23 is supposedly applicable
only to civil cases or special proceedings.
o Agrarian dispute refers to any controversy relating
to tenurial arrangements, whether leasehold
tenancy, stewardship or otherwise, over lands
devoted to agriculture, including disputes
concerning farmworkers associations or
representation of persons in negotiating, fixing,
maintaining, changing or seeing to arrange terms
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

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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LAW ON EVIDENCE
(b) An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to him, or his
advice given thereon in the course of, or with a view to, professional
employment, nor can an attorney's secretary, stenographer, or clerk
be examined, without the consent of the client and his employer,
concerning any fact the knowledge of which has been acquired in
such capacity (Attorney-Client Privileged Communication Rule)
(c) A person authorized to practice medicine, surgery or obstetrics
cannot in a civil case, without the consent of the patient, be
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
him to act in capacity, and which would blacken the reputation of
the patient (Physician-Patient Privileged Communication Rule)
(d) A minister or priest cannot, without the consent of the person
making the confession, be examined as to any confession made to or
any advice given by him in his professional character in the course of
discipline enjoined by the church to which the minister or priest
belongs (Priest-Penitent Privileged Communication Rule)
(e) A public officer cannot be examined during his term of office or
afterwards, as to communications made to him in official confidence,
when the court finds that the public interest would suffer by the
disclosure (Public Officers Privileged Communication Rule)
Briefly, they are the following:
a. Marital Privileged Communication Rule
b. Attorney-Client Privileged Communication Rule
c. Physician-Patient Privileged Communication Rule
d. Priest-Penitent Privileged Communication Rule
e. Publuc Officers Privileged Communication Rule
1. MARITAL PRIVILEGED COMMUNICATION
(a) The husband or the wife, during or after the marriage, cannot be
examined without the consent of the other as to any communication
received in confidence by one from the other during the marriage
except in a civil case by one against the other, or in a criminal case
for a crime committed by one against the other or the latter's direct
descendants or ascendants.
REQUISITES:
1. There was a VALID marriage;
2. The privilege is invoked with respect to a confidential
communication between the spouses DURING the said
marriage; and
3. The spouse against whom such evidence is being offered has
NOT given his consent to such testimony.
EXCEPTIONS:
1. In a civil case by one against the other; or
2. In a criminal case for a crime committed by one against the
other or the latter’s direct descendants or ascendants.
TAKE NOTE that these are the same exceptions under the Marital
Disqualification Rule.
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PRESUMPTION: In the absence of evidence to the contrary, any
communication given by one spouse to the other is presumed
confidential.
HYPOTHETICAL PROBLEM:
Spouses Maja and Ramon were deep in conversation when Ramon
confessed to Maja that he, before they got married, killed Maja’s ex-
boyfriend, Gerald.
1. Can Maja be called to testify against Ramon?
NO. The Marital Privileged Communication Rule applies.
In Fact, the Marital Disqualification Rule applies as well.
2. But the crime was committed before their marriage?
It does not really matter. What matters is that the
communication was made during their marriage.
Conversely, the Marital Disqualification Rule applies also
because they are still married.
3. What if their marriage was annulled? Can Maja testify then?
Under the Marital Disqualification Rule – YES, unless
Ramon consents.
Under the Marital Privileged Communication Rule – NO
because it applies during or after the marriage, unless
Ramon waives the privilege.
DISTINCTIONS (Favorite source of BAR Qs)
MARITAL DISQUALIFICATION MARITAL PRIVILEGE
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
Applies only if the marriage is
Can be claimed even after the
existing at the time the
marriage has been dissolved
testimony is offered
Applies only to confidential
Constitutes a total prohibition
communications between the
against the spouse
spouses
To determine what rule applies, you look at the given facts. If it
refers to a specific confidential information, you apply the Marital
Privileged Communication Rule. If it refers to a general information
between the spouses, apply the Marital Disqualification Rule.
HYPOTHETICAL PROBLEM:
Suppose that, in the foregoing problem, Ramon’s confession to Maja
was overheard by their minor daughter Majess, and their nosy
housemate Bangs.
1. Can Majess be called to testify?
Under the Marital Privileged Communication Rule – NO
because Majess is still a minor.
What if Majess is no longer a minor? She can testify (if she
wants) but cannot be compelled to do so.
2. What about Bangs, the nosy housemate?
LAW ON EVIDENCE
GENERAL RULE: YES. She can testify. Third persons who,
without knowledge of the spouses, overhear the
communication are NOT disqualified to testify.
EXCEPTION: When there is collusion and voluntary
disclosure to third party, that third party becomes an
agent of the spouses and cannot testify.
TAKE NOTE THAT, IN THE EXAMPLE:
1. Majess can voluntarily testify under Section 25:
Rule 130, Section 25. Parental and Filial Privilege. - No person may
be compelled to testify against his parents, other direct ascendants,
children or other direct descendants.
2. What is prohibited under Section 25 is testimony by compulsion.
It does not forestall testimony by volition.
DOCTRINES TO REMEMBER IN MARITAL PRIVILEGED
COMMUNICATION RULE:
1. Every communication between spouses is presumed to be
confidential.
2. Communications made in the presence of third parties are not
confidential, unless the third person may be considered as an agent
of the spouses.
3. Communications overheard by third persons remain confidential
as betvween the spouses, but the third person who overheard may
be called to testify. (Pp v Carlos)
rd
4. If the 3 person acquired knowledge of the communication by
collusion and voluntary disclosure on the part of either of the
spouses, he thereby becomes an agent of such spouses so that the
privilege is claimable against him.
5. Communications intended for transmission to 3rd persons are not
confidential. (US v Antipolo)
BAR QUESTION:
XYZ, an alien, was criminally charged of promoting and facilitating
child prostitution and other sexual abuses under RA 7610. The
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
tourism and child trafficking. The defense counsel for XYZ objected
to the testimony of ABC at the trial of the child prostitution case and
the introduction of the affidavits she executed against her husband
as a violation of espousal confidentiality and marital privilege rule. It
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
for legal separation from XYZ since last year.
Q: May the court admit testimony and affidavits of the wife, ABC,
against her husband, XYZ, in the criminal case involving child
prostitution? Reason.
YES. The court may admit the testimony and affidavits if
the wife against her husband in the criminal case where it
involves child prostitution of the wife’s daughter. It is not
covered by the marital disqualification rule. One
exception thereof is where the crime is committed by one
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against the other or the latter’s direct descendants or
ascendants. A crime by the husband against the daughter
is a crime against the wife and directly affects or vitally
impairs the conjugal relation. (Ordonio v Daquigan)
BAR QUESTION 1995:
Allan and Narita were married on August 1, 1989. After 2 months,
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
Basilio, a married man. In 1992, Narita obtained a judicial decree of
nullity of marriage with Allan on the latter’s psychological incapacity
to fulfill his marital obligations. When the decree became final, Liza
assisted by Narita, filed 10 cases of rape against Allan purportedly
committed in 1991. During the trial, Narita was called to the witness
stand to testify as a witness against Allan who objected thereto on
the ground of marital disqualification.
1. As a public prosecutor, how would you meet the objection?
I would ask the court to overrule the objection. Under the
marital disqualification rule, the objection to the
testimony of one spouse against the other may be invoked
only during the marriage. At the time the testimony of
Narita was offered, the marriage was already dissolved.
(Sec 22, Rule 130, Rules of Court)
2. Suppose Narita’s testimony as offered while the decision
nullifying her marriage to Allan was pending appeal, would your
answer be different?
NO. The answer would not be different and a valid
objection may still be interposed. The marital
disqualification rule may not be invoked in a criminal case
for a crime committed against the direct descendant of
the other spouse. Here, Liza is the daughter of Narita.
3. Suppose Narita died during the pendency of the appeal, and soon
after, the legal wife of Basilio sued for legal separation on sexual
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
(Allan) during their marriage that Liza was her love child by Basilio.
As counsel for Basilio, can you validly object to the presentation of
Allan as witness for the plaintiff? Explain.
Yes. I could validly object to the presentation of Allan as a
witness on the ground that the communication of Narita
was a privileged communication which could be invoked
during or after the marriage. Moreover, the testimony of
Allan would be hearsay.
However, Riano posits that:
The testimony could not be validly objected upon by
Basilio’s counsel on the basis of the marital privileged
communication rule. Basilio does not own the privilege.
The prerogative to object to a confidential communication
between spouses is vested upon the spouses themselves,
rd
particularly the communicating spouse, not a 3 person.
This is clear from the provision: “…..cannot be examined
without the consent of the other…” (Sec. 24, Rule 130)
2. ATTORNEY-CLIENT PRIVILEGED COMMUNICATION
LAW ON EVIDENCE
(b) An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to him, or his
advice given thereon in the course of, or with a view to, professional
employment, nor can an attorney's secretary, stenographer, or clerk
be examined, without the consent of the client and his employer,
concerning any fact the knowledge of which has been acquired in
such capacity
RATIONALE
The policy underlying this privilege is that of encouraging open and
honest communication between clients and attorneys, which is
thought to promote obedience to law and reduce the chance of
illegal behavior, whether intentional or inadvertent. As such, the
attorney-client privilege is considered as one of the strongest
privileges available under the law.
REQUISITES:
1. There must be a communication made by the client to the
attorney or an advice given by the attorney to his client;
2. The communication or advice must have been given in
confidence;
3. The communication or advice must have been given either in
the course of the professional employment or with view to
professional employment; and
4. The client has not given his consent to the attorney’s
testimony; or if the attorney’s secretary, stenographer or clerk
is sought to be examined, that both the client and the attorney
have not given their consent.
IS A PERFECTED CONTRACT REQUIRED?
NO. The present rules do not require a perfected attorney-client
relationship for the privilege to exist. The communications between
the attorney and the client no longer need be in the course of an
actual professional employment. It is enough that the
communication or advice be “with a view to” professional
employment.
EMPLOYEES OF THE LAWYER ARE COVERED
The statements of the client need not have been made to the
attorney in person. Those made to the attorney’s secretary, clerk or
stenographer for transmission to the attorney for the purpose of the
professional relationship or with a view to such relationship or the
knowledge acquired by such employees in such capacity are covered
by the privilege. Like the attorney, their employer, these persons
cannot be examined as to the communication made by the client or
the advice given by the attorney without the client’s consent.
LAWYER MUST BE CONSULTED IN HIS PROFESSIONAL CAPACITY
Where a person consults an attorney not as a lawyer but merely as a
friend, or a participant in a business transaction, the consultation
would not be one made in the course of a professional employment
or with a view to professional employment as required by Sec 24(b)
Rule 130, Rules of Court, and if proven to be so, would not be within
the ambit of the privilege.
HYPOTHETICAL PROBLEM:
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KA consulted Sakee, a lawyer. He asked about Sakee’s professional
opinion as to how to import goods and bring them out from customs
without paying any taxes or dues.
1. Assume that KA was caught smuggling goods, can Sakee be called
to testify as to what KA asked him?
YES. Sakee can be called to testify. The privilege does
NOT extend to communications where the client’s purpose
is the furtherance of a future intended crime or fraud, or
for the purpose of committing a crime or tort.
2. Suppose that KA, after being arrested, sought Sakee’s services as
lawyer to defend him in the criminal case. KA then discussed facts
that can be used in his defense. Can Sakee be called to testify?
NO. The discussion of the communications in confidence
with the lawyer after the crime has been committed will
be privileged even though the earlier communications
were not.
SUMMARY:
1. The privilege does NOT extend to communications where the
client’s purpose is the furtherance of a FUTURE intended crime or
fraud or for the purpose of committing a crime or a tort.
2. Although communications made when used to further crimes are
not privileged, the discussion of the communications in confidence
with the lawyer after the crime has been committed may still be
privileged even though the earlier ones were not.
However, where the lawyer himself was a co-conspirator:
PP vs. SANDIGANBAYAN (1997)
The privilege does NOT apply where the lawyer himself was a
CONSPIRATOR in the commission of the crime of falsification which
he and his clients concocted and foisted upon the authorities. It is
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
in furtherance lawful end. The existence of an unlawful purpose
prevents the privilege from attaching.
WORK-PRODUCT DOCTRINE:
HICKMAN vs. TAYLOR (1947)
Under the Federal Rules of Procedure, the work-product doctrine
protects materials prepared in anticipation of litigation from
discovery by opposing counsel. Thus, during the discovery stage,
oral and written statements made by the witnesses to a defendant’s
attorney cannot be produced as it is considered work-product.
In the Philippines, we have Rule 27:
Rule 27, Section 1. Motion for production or inspection; order. —
Upon motion of any party showing good cause therefor, the court in
which an action is pending may (a) order any party to produce and
permit the inspection and copying or photographing, by or on behalf
of the moving party, of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material to any
LAW ON EVIDENCE
matter involved in the action and which are in his possession,
custody or control, XXXX
With that, is the work-product doctrine exception applicable here?
YES but we do not have any specific work-product rule. It is
subsumed under the very general Attorney-Client Privileged
Communication Rule. It has once been mentioned by the SC in the
case of Fortune vs. CA, Jan. 1994 in a mere obiter.
BAR QUESTION 2008:
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
resulting shipwreck. At the maritime board inquiry, the 4 survivors
testified. SPS engaged Atty. Ely to defend it against potential claims
and to sue the company owning the other vessel for damages for to
the tug. Ely obtained signed statements from the survivors. He also
interviewed other persons, in some instance making memoranda.
The heirs of the 5 victims filed an action for damages against SPS.
Plaintiff counsel sent written interrogatories to Ely, asking whether
statements of witnesses were obtained; if written, copies were to be
furnished; if oral, the exact provisions were to be set forth in detail.
Ely refused to comply, arguing that the documents and information
asked are privileged.
Q: Is the contention tenable? Explain.
YES, considering that he was acting in his professional
capacity in bringing about the statement he obtained from
the witnesses and the memoranda he made. The notes,
memoranda, and writings made by the counsel in
pursuance of his professional duty, form part of his private
and confidential files in the cases handled by him; hence
privileged.
COMMUNICATIONS COVERED:
1. The privilege is NOT confined to communications regarding
ACTUAL PENDING cases. The communications may refer to
ANTICIPATED LITIGATIONS or may not refer to any litigation at
all.
2. The communication may be ORAL or WRITTEN. It is deemed to
extend to other forms of conduct like physical demonstration
as long as they are intended to be confidential.
3. The communication between a client and his lawyer is not
deemed lacking in confidentiality solely because the
communication is transmitted by facsimile, cellular telephone,
or other electronic means.
PP vs. SANDIGANBAYAN (1997)
The privilege is not confined to verbal or written communications
made by the client to his attorney but extends as well to information
communicated by the client to the attorney by other means.
CONFIDENTIALITY
Before the statements of the client and the advice of the attorney
be deemed as privileged, the same should have been intended to be
confidential.
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The matters communicated to the attorney are evidently not
intended to be confidential when they were made to the lawyer but
rd
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
the communications made by the client to his attorney were also
rd
made to 3 persons, the intention of secrecy does not appear.
EAVESDROPPER
Under the Marital Privileged Communication Rule, 3rd persons who
overheard the communication can be permitted to testify.
What is the rule under the Attorney-Client Privileged
Communication Rule?
Philippine jurisprudence is somehow silent about this. However, it is
submitted that, similar to American jurisprudence, the
EAVESDROPPER MAY TESTIFY. This is subject of course to the usual
challenge based on right to privacy (i.e., fruit of the poisonous tree).
LAWYER CANNOT BE DAMNED BY THE PRIVILEGE
1. A lawyer may circumvent the privilege if revealing would relieve
him of accusations of wrongdoing.
2. When the client and attorney become embroiled in a controversy
between themselves, as in an action filed for payment of attorney’s
fees or for damages against the negligence of the attorney, the
privilege is removed from the attorney’s lips.
This rule, however, should be made to apply only where the suit is
between the attorney and his client. The communication would still
be privileged where the suit is by or against a 3rd party.
PRIVILEGE IS OWNED BY THE CLIENT AND SURVIVES HIS DEATH
1. The privilege is PERSONAL and belongs to the client. If the
client waives the privilege, no one else including the attorney
can invoke it.
If the client is asked on cross examination of his
communications to his lawyer and reveals the same, there
would be waiver of the confidentiality of the
communication.
There would also be a waiver if the client does not object
to his attorney’s testimony on the communication.
2. The protection of the privilege will generally survive the client’s
death. However, where there is an attack on the validity of the
will, communications made to the attorney on the drawing of
the will, while confidential during the lifetime of the client are
not intended to require secrecy after his death.
EXAMPLE:
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
gave 8M to A and only 2M each to Y and Z. The lawyer asked why
and X told him that A was his lovechild with his one true love AAA
and that Y and Z, his children with BBB, he suspected were not really
his.
LAW ON EVIDENCE
When X died, his will was probated. Y and Z opposed on the ground
that they were preterited and that their legitime was impaired.
They claimed that, being X’s sole heirs, they are entitled to ½ each of
the whole estate.
Can the lawyer be compelled to reveal the information he received
from X about A?
YES. There is an attack on the validity of the will. The
communication made to the lawyer on the drawing of the
will, while confidential during the lifetime of X, is not
intended to require secrecy after his death. In fact, if he
reveals the information, the will becomes perfectly valid as
it does not impair the legitime of the heirs.
SAURA, JR. vs. ATTY. AGDEPPA (2000)
The request for the information regarding the sale of the property
and to account for the proceeds is not a violation of the attorney-
client privilege.
The information requested by petitioners is not privileged. They are
only asking for the disclosure of the amount of the sale or account
for the proceeds. They have the right to ask for such information
since they own the property as co-heirs. Hence, the lawyer cannot
refuse to divulge such information to them and hide behind the
cloak of atty-client relationship.
DOES THE PRIVILEGE PRECLUDE INQUIRIES INTO THA FACT THAT
THE LAWYER WAS CONSULTED?
In other words, can the lawyer be asked if a person is his client? Is
the identity of the client privileged?
GENERAL RULE: An inquiry into the fact of consultation or
employment is NOT privileged. Even the identity of the
client or the lawyer is NOT privileged.
EXCEPTION: Regala vs Sandiganbayan case (Atty JZE:
Read the full text of this case)
REGALA vs. SANDIGANBAYAN (1996)
PRINCIPLE: As a matter of public policy, a client’s identity should
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
the privilege and refuse to divulge the name or identity of the client.
Reasons:
1. The court has a right to know that the client whose privileged
information is sought to be protected is flesh and blood.
2. The privilege begins to exist only after the atty-client relationship
has been established. The atty-client privilege does not attach until
there is a client.
3. The privilege generally pertains to the subject matter of the
relationship.
4. Due process considerations require that the opposing party
should, as a general rule, know his adversary. “A party suing or sued
is entitled to know who is opponent is.” He cannot be obliged to
grope in the dark against unknown forces.
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FACTS: Allegedly, Cojuancgo, et al., with the assistance of ACCRA
Law Firm, set up, through the use of the coconut levy funds, the
financial and corporate framework and structures that led to the
establishment of UCPB, UNICOM, COCOLIFE, COCOMARK, CIC and
more than 20 other coconut levy funded corporations, including the
acquisition of San Miguel Corporation. Said corporations are subject
to investigation by the PCGG involving ill gotten wealth. ACCRA
refuses to provide information on fear that it may implicate them in
the very activity from which legal advice was sought from them and
it may breach the fiduciary relationship of the petitioner with their
client.
ISSUE: WON disclosure of the client’s identity is proper in this case
HELD: NO.
GENERAL RULE: The attorney-client privilege may not be invoked to
refuse to divulge the identity of the client.
EXCEPTIONS:
1. When a strong probability exists that revealing the name would
implicate that person in the very same activity for which he sought
the lawyer’s advice;
2. When disclosure would open the client to liability;
3. When the name would furnish the only link that would form the
chain of testimony necessary to convict (LAST-LINK DOCTRINE)
LAST-LINK DOCTRINE
By compelling petitioners, not only to reveal the identity of their
clients, but worse, to submit to the PCGG documents substantiating
the client-lawyer relationship, as well as deeds of assignment
petitioners executed in favor of its clients covering their respective
shareholdings, the PCGG would exact from petitioners a link that
would inevitably form the chain of testimony necessary to convict
the client of a crime.
Non-privileged information such as the identity of the client is
protected if the revelation of such information would necessarily
reveal the privileged information.
3. PHYSICIAN-PATIENT PRIVILEGE
(c) A person authorized to practice medicine, surgery or obstetrics
cannot in a civil case, without the consent of the patient, be
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
him to act in capacity, and which would blacken the reputation of
the patient
REQUISITES:
a. The action in which the advice or treatment given or any
information is to used is a CIVIL CASE;
b. The RELATION of physician and patient existed between the
person claiming the privilege or his legal representative and the
physician.
LAW ON EVIDENCE
c. The advice or treatment given by him or any information was
acquired by the physician while PROFESSIONALLY ATTENDING
the patient;
d. The information was NECESSARY for the performance of his
professional duty; and
e. The disclosure of the information would tend to BLACKEN THE
REPUTATION of the patient.
RATIONALE
To encourage the patient to freely disclose all the matters which
may aid in the diagnosis or in the treatment of a disease or an injury.
For this purpose, it is necessary to shield the patient from
embarrassing details concerning his condition.
Accordingly, this privilege protects the interest of the patient. It is
designed to promote health, not truth. It encourages free disclosure
in the sickroom by preventing disclosure in the courtroom.
SURVIVES THE DEATH OF THE PATIENT
The privilege survives the death of the patient. Death does not
permit the living to impair the deceased’s name by disclosing
communications held confidential by law.
GONZALES vs. CA (1998)
FACTS: Ricardo Abad died, leaving sizable estate. His siblings,
including Gonzales, filed a petition for settlement of the intestate
estate of Ricardo and alleged that they were the sole heirs. This was
opposed by Honoria Empaynado, claiming that the siblings
deliberately concealed the existence of her children with Ricardo as
well as another child with another woman.
Why is this relevant?
Under the law on succession, in the absence of legitimate
descendants or ascendants, the illegitimate children shall succeed to
the entire estate of the deceased.
Also, if there are no children or a surviving spouse, the collateral
relatives (siblings) shall succeed to the entire estate of the deceased.
In answer thereto, the siblings presented the affidavit of Dr. Arenas,
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
infected with gonorrhea, and that the latter had become sterile as a
consequence thereof.
ISSUE: Should the affidavit be excluded for violation of the
Physician-Patient Privileged Communication Rule?
HELD: YES. Ricardo’s sterility arose when the latter contracted
gonorrhea, a fact which most assuredly blackens his reputation. In
fact, given that society holds virility at a premium, sterility alone,
without the attendant embarrassment of contracting a sexually-
transmitted disease, would be sufficient to blacken the reputation of
any patient. We thus hold the affidavit inadmissible in evidence,
notwithstanding the death of Ricardo.
TREATMENT
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It is necessary for the operation of the privilege that the physician is
acting in his “professional capacity” and that the advice or treatment
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
either curative or preventive treatment.
Results of autopsies may not be deemed covered by the privilege
because autopsies are not intended for treatment.
PROFESSIONAL CAPACITY
The rule does not require that the relationship between the
physician and the patient be a result of a contractual relationship
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
seriously ill and the physician treats him even if he is not in a
condition to give his consent as in the situation described in Art
2167 of the Civil Code of the Philippines. (PATIENT IN EXTREMIS)
Article 2167 (Civil Code). When through an accident or other cause a
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
be liable to pay for the services of the physician or other person
aiding him, unless the service has been rendered out of pure
generosity.
WHEN INAPPLICABLE:
a. Communication is not given in confidence.
b. Communication is irrelevant to the professional employment.
c. Communication was made for an unlawful purpose, as when it
is intended for the commission or concealment of a crime.
d. Information was intended to be made public.
e. There was a waiver of the privilege either by provisions of
contract or law.
PRIVILEGE BELONGS TO THE PATIENT
This privilege belongs to the patient, so that it is only he who can
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
contract as in medical or life insurance.
When the patient answers questions on cross examination, there is
also a waiver.
Rule 28, Section 1. When examination may be ordered. — In an
action in which the mental or physical condition of a party is in
controversy, the court in which the action is pending may in its
discretion order him to submit to a physical or mental examination
by a physician.
Section 2. Order for examination. — The order for examination may
be made only on motion for good cause shown and upon notice to
the party to be examined and to all other parties, and shall specify
the time, place, manner, conditions and scope of the examination
and the person or persons by whom it is to be made.
LAW ON EVIDENCE
Section 3. Report of findings. — If requested by the party examined,
the party causing the examination to be made shall deliver to him a
copy of a detailed written report of the examining physician setting
out his findings and conclusions. After such request and delivery, the
party causing the examination to be made shall be entitled upon
request to receive from the party examined a like report of any
examination, previously or thereafter made, of the same mental or
physical condition. If the party examined refuses to deliver such
report, the court on motion and notice may make an order requiring
delivery on such terms as are just, and if a physician fails or refuses
to make such a report the court may exclude his testimony if offered
at the trial.
Section 4. Waiver of privilege. — By requesting and obtaining a
report of the examination so ordered or by taking the deposition of
the examiner, the party examined waives any privilege he may have
in that action or any other involving the same controversy, regarding
the testimony of every other person who has examined or may
thereafter examine him in respect of the same mental or physical
examination.
Under Rule 28, the court may order a party to submit to a physical
or mental examination, so long as the mental or physical condition is
in dispute. The party examined may request a report of the
examination. By doing so, he waives any privilege he may have in
that action regarding the testimony of every other person who has
examined him in respect of the same examination.
LIM vs. CA (1992)
This privilege does not apply when the doctor is presented as an
expert witness and only hypothetical problems were presented to
him. The privilege does not cover expert opinion as long as the
witness does not testify to matters specifically referring to the
patient.
CHAN vs. CHAN (2013)
FACTS: On Feb 6, 2006, Josielene filed a petition for the declaration
of nullity of her marriage to Johnny. Josielene claimed that Johnny
failed to care for and support his family and that a psychiatrist
diagnosed him as mentally deficient due to incessant drinking and
excessive use of prohibited drugs.
During the pre-trial conference, Josielene pre-marked the Philhealth
Claim Form that Johnny attached to his answer as proof that he was
forcibly confined at the rehab unit of a hospital. The form carried a
physician’s handwritten notes that Johnny suffered from
methamphetamic and alcoholic abuse. Josielene filed with the RTC
a request for the issuance of a subpoena duces tecum addressed to
Medical City, covering Johnny’s medical records when he was
confined there.
Johnny opposed the motion, arguing that the medical records were
covered by the physician-patient privilege.
Josielene claims that the hospital records subject of this case are not
privileged since it is the testimonial evidence of the physician that
may be regarded as privileged. Sec 24(c) of Rule 130 states that the
physician cannot in a civil case without consent of the patient, be
examined regarding their professional conversation. That the
privilege does not cover the hospital records, but only the
examination of the physician at the trial.
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ISSUE: WON the medical records were covered by the physician-
patient privilege
HELD: YES. To allow, however, the disclosure during the discovery
procedure of the hospital records – the results of tests that the
physician ordered, the diagnosis of the patient’s illness, and the
advice or treatment he gave him – would be to allow access to
evidence that is inadmissible without the patient’s consent.
Physician memorializes all these information in the patient’s
records. Disclosing them would be the equivalent of compelling the
physician to testify on privileged matters he gained while dealing
with the patient, without the latter’s prior consent.
KROHN vs. CA (1994)
Non-physician testimony on a medical psychologist’s report is NOT
covered by the physician-patient privilege. This is hearsay.
4. PRIEST-PENITENT PRIVILEGE
(d) A minister or priest cannot, without the consent of the person
making the confession, be examined as to any confession made to or
any advice given by him in his professional character in the course of
discipline enjoined by the church to which the minister or priest
belongs.
Atty JZE: It’s only the Catholic Church that views confession as a
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
Catholics.
a.k.a CLERGY PRIVILEGE
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
communications to clergy members must be made while clergy
members are acting in the professional capacity of a spiritual adviser
and with the purpose of dispensing religious counsel, advice, solace,
or absolution.
PROFESSIONAL CAPACITY
The person making the confession holds the privilege and the priest
or minister hearing the confession in his professional capacity is
prohibited from making a disclosure of the confession without
consent of the person confessing. The privilege also extends to any
advice given by the minister or priest.
The confession and the advice must have been made or given
pursuant to the course of discipline of the denomination or sect to
which the minister or priest belongs. Thus, the minister or priest
must be duly ordained or consecrated by his sect.
Not every communication made to a minister or priest is privileged.
The communication must be made pursuant to confessions of sins
(Wigmore). As clearly provided in the rule, the advice given as a
result of the confession must be made in the minister’s professional
character or in his spiritual capacity.
Accordingly, where the penitent discussed business arrangements
with the priest, the privilege does NOT apply.
LAW ON EVIDENCE
5. PRIVILEGE OF STATE SECRETS
(e) A public officer cannot be examined during his term of office or
afterwards, as to communications made to him in official confidence,
when the court finds that the public interest would suffer by the
disclosure.
REQUISITES:
1. The communication must have been made to a public officer;
2. The communication was given to the public officer in official
confidence; and
3. The public interest would suffer by the disclosure of the
communication.
BANCO FILIPINO vs. MONETARY BOARD (1986)
This privilege is intended not for the protection of the public officers
but for the protection of public interest. Where there is no public
interest that would be prejudiced, this invoked rule will not be
applicable.
The rule that a public officer cannot be examined as to
communication made to him in official confidence does not apply
when there is nothing to show that the public interest would suffer
by the disclosure in question. The government must establish that
public interest would suffer by the disclosure of the papers and
documents for the privilege to be invoked.
WHEN INAPPLICABLE:
If what is asked:
1. is useful evidence to vindicate the innocence of an accused;
2. lessens the risk of false testimony;
3. is essential to the proper disposition of the litigation;
4. the benefit to be gained by a correct disposition of the litigation
was greater than any injury which could inure to the relation by
a disclosure of the information.
IS THE PRIVILEGE APPLICABLE TO ALL PUBLIC OFFICERS IN
GENERAL?
NO. The privilege only applies to communications to such officers
who have a responsibility or duty to investigate or to prevent
public wrongs, and not to officials in general.
The court, not the witness, will determine the necessity of
regarding the communication as privileged.
CONCEPT OF EXECUTIVE PRIVILEGE
Certain types of information like military, diplomatic, and other
national security matters may be withheld from the public.
HYPOTHETICAL PROBLEM:
Director of Animal Husbandry Matteo received an invitation for
questioning in a hearing from the Senate of the Philippines regarding
Animal Abuse Scam. During the hearing, Matteo did not answer the
questions propounded to him by Senator Pacman, a self-confessed
animal lover, claiming that his position entitles him to invoke the
executive privilege.
Is his contention correct?
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YES. Even where the injury is in aid of legislation, there are
still recognized exemptions to the power of inquiry, which
exemptions fall under the rubric of executive privilege
(Senate of the Phils vs Ermita, April 2006).
OTHER PRIVILEGED COMMUNICATIONS:
1. RULES ON ELECTRONIC EVIDENCE
Privileged communications apply even to electronic evidence.
Under Sec. 3, Rule 3 of Rules on Electronic Evidence, the confidential
character of a privileged communication is not lost solely on the
ground that it is in the form of an electronic document.
2. NEWSMAN’S PRIVILEGE
Editors may not be compelled to disclose the source of published
news.
RA 53, Section 1. Without prejudice to his liability under the civil and
criminal laws, the publisher, editor, columnist or duly accredited
reporter of any newspaper, magazine or periodical of general
circulation cannot be compelled to reveal the source of any news
report or information appearing in said publication which was
related in confidence to such publisher, editor or reporter x x x
3. POLITICAL VOTE PRIVILEGE
Voters may not be compelled to disclose for whom they voted,
which is a constitutional privilege to a degree inasmuch as the 1987
Constitution itself mandates the secrecy and sanctity of the ballot.
4. INFORMATION CONTAINED IN TAX CENSUS RETURNS
Under RA 2070, as amended by RA 5268, no information in the tax
register shall be published except in the form of tabulations or
summaries having no reference to individuals.
Note however that the income tax returns (ITRs) are NOT
confidential. Section 71 of the Tax Code makes ITRs public records
and opens them to inspection upon order of the President of the
Philippines (Dipad vs Sps Oliban, July 2012)
5. BANK DEPOSITS (RA 1405)
Section 2. All deposits of whatever nature with banks or banking
institutions in the Philippines including investments in bonds issued
by the Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an absolutely
confidential nature and may not be examined, inquired or looked
into by any person, government official, bureau or office, except
upon written permission of the depositor, or in cases of
impeachment, or upon order of a competent court in cases of bribery
or dereliction of duty of public officials, or in cases where the money
deposited or invested is the subject matter of the litigation.
However, This Section and Section 3 were both amended by PD No.
1792 issued January 16, 1981, PD 1792 was expressly repealed by
Sec 135 of R.A. No. 7653, approved June 14, 1993. The original
sections 2 and 3 of R.A. No.1405 are hereby reproduced for
reference, as follows:
LAW ON EVIDENCE
"Section 2. All deposits of whatever nature with banks or banking
institutions in the Philippines including investments in bonds issued
by the Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an absolutely
confidential nature and may not be examined, inquired or looked
into by any person, government official, bureau or office, except
upon written per-mission of the depositor, or in cases of
impeachment, or upon order of a competent court in cases of bribery
or dereliction of duty of public officials. or in cases where the money
deposited or invested is the subject matter of the litigation,"
"Section 3. It shall be unlawful for any official or employee of a
banking institution to disclose to any person other than those
mentioned in Section two hereof any information concerning said
deposits."
The privileged nature of bank deposits has been diluted by:
RA 9372 (Human Security Act of 2007)
Section 27. Judicial Authorization Required to Examine Bank
Deposits, Accounts, and Records. “ The provisions of Republic Act
No. 1405 as amended, to the contrary notwithstanding, the justices
of the Court of Appeals designated as a special court to handle anti-
terrorism cases after satisfying themselves of the existence of
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
commit terrorism, (2) of a judicially declared and outlawed terrorist
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
enforcement officer and the members of his/her team duly
authorized in writing by the anti-terrorism council to: (a) examine, or
cause the examination of, the deposits, placements, trust accounts,
assets and records in a bank or financial institution; and (b) gather or
cause the gathering of any relevant information about such deposits,
placements, trust accounts, assets, and records from a bank or
financial institution. The bank or financial institution concerned shall
not refuse to allow such examination or to provide the desired
information, when so ordered by and served with the written order
of the Court of Appeals.
RA 10168 (An act defining the crime of financing of terrorism)
The AMLC is hereby authorized to inquire into or examine deposits
and investments with any banking institution or non-bank financial
institution and their subsidiaries and affiliates without a court order.
6. TRADE SECRETS
AIRPHIL vs. PENSWELL, INC., (2007)
The chemical composition, formulation and ingredients of
respondent’s special lubricants are trade secrets within the
contemplation of the law.
Rule 27 cannot justify production of information as the same is
limited to documents or things that are not privileged in nature.
7. ART 233 OF THE LABOR CODE
All information and statements made at conciliation proceedings
shall be treated as privileged communications and shall not be used
as evidence in the NLRC, and the conciliators and similar officials
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shall not testify in any court or body regarding the matter taken up
at the conciliation proceedings conducted by them.
8. ALTERNATIVE DISPUTE RESOLUTION ACT (RA 9285)
Section 9(a) – Information obtained through mediation shall be
privileged and confidential. Sec 23 also provides for the
confidentiality of arbitration proceedings.
Arbitral records in the CIAC are also confidential.
9. CHILD WITNESSES
The guardian ad litem shall not testify in any proceeding concercning
any information, statement, or opinion received from the child in
the course of serving as a guardian ad litem, unless the court finds it
necessary to promote the best interest of the child (Sec 5e, Rule on
Examination of a Child Witness).
10. INFORMER’S PRIVILEGE
Informers, for the protection of their identity, cannot be compelled
to testify by the prosecutor when their testimony would merely be
cumulative and corroborative. It is the privilege of the Government
not to disclose the identity of persons who furnish information of
violations of law to officers charged with the enforcement of that
law.
PARENTAL AND FILIAL PRIVILEGE
Rule 130, Section 25. Parental and filial privilege. — No person may
be compelled to testify against his parents, other direct ascendants,
children or other direct descendants.
The privilege does not disqualify a person from testifying against his
parents or children or other direct ascendants and descendants. A
person may testify against his parents or children voluntarily but if
he refuses to do so, the rule protects him from any compulsion. He
cannot be compelled to testify against any of the relatives
mentioned in the rules.
UNDER THE FAMILY CODE:
Art. 215. No descendant shall be compelled, in a criminal case, to
testify against his parents and grandparents, except when such
testimony is indispensable in a crime against the descendant or by
one parent against the other.
NOT COVERED:
1. Relatives by affinity
2. Brothers and sisters
3. Aunts, uncles, nephew, nieces
4. Cousins of whatever degree
5. Other collateral relatives
ADOPTED CHILDREN
It is believed that adopted and adopter are covered by the parental
and filial privilege rule but only insofar as the parent and child is
concerned.
It does NOT extend to the direct ascendants of the adopter because
the adoptive relation is between the adopter and the adopted only.
LAW ON EVIDENCE
The reason for this opinion is the rationale behind the privilege,
which is to preserve the harmonious relations between parent and
child which could be ruptured through testifying in court.
Furthermore, perjury may result because the parent or the child
may give false testimony to protect the other.
LEE vs. CA (2010)
FACTS: Spouses Lee and Keh entered the Philippines in 1930s as
immigrants from China. They had 11 children. In 1948, Lee brought
from China a young woman named Tiu, supposedly to serve as
housemaid. Tiu left Lee-Keh household, moved into another
property of Lee nearby, and had a relation with him. Shortly after
Keh died in 1989, the Lee-Keh children learned that Tiu’s children
with Lee claimed that they, too, were children of Lee and Keh. This
prompted the Lee-Keh children to request the NBI to investigate the
matter.
Tiu who invoked the filial privilege claims that she is the stepmother
of petitioner Emma Lee.
ISSUE: WON the privilege can be invoked
HELD: NO. The privilege cannot apply to them because the rule
applies only to DIRECT ascendants and descendants, a family
connected by a common ancestry. A stepdaughter has no common
ancestry by her stepmother. Article 965 thus provides:
“Art 965. The direct line is either descending or ascending. The
former unites the head of the family with those who descend from
him. The latter binds a person with those from whom he descend.”
Consequently, Tiu can be compelled to testify against petitioner
Emma Lee.
September 7, 2016
ADMISSIONS AND CONFESSIONS
Admissions can be judicial or extrajudicial.
A judicial admission or an admission in judicio is a deliberate, clear,
and unequivocal statement by a party about a concrete fact within
that party’s knowledge.
Extrajudicial admission (Section 26)
Rule 130, Section 26. Admissions of a party. — The act, declaration
or omission of a party as to a relevant fact may be given in evidence
against him.
Admission by an Act
Rule 130, Section 27. Offer of compromise not admissible. — In civil
cases, an offer of compromise is not an admission of any liability,
and is not admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal
negligence) or those allowed by law to be compromised, an offer of
compromised by the accused may be received in evidence as an
implied admission of guilt.
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A plea of guilty later withdrawn, or an unaccepted offer of a plea of
guilty to lesser offense, is not admissible in evidence against the
accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other
expenses occasioned by an injury is not admissible in evidence as
proof of civil or criminal liability for the injury.
Under this Section, an offer of compromise by the accused is
actually an implied admission of his guilt.
Admission by declaration
Example: A was sued by B for a collection of a debt. In his answer, A
categorically denied having contracted any loan to B. However, prior
to the case being filed, A spoke to C and told him that he borrowed
money from B to buy a car.
Q: Can C testify as to what A told him?
Analysis: Note that the witness to be presented, C, is one who has
no personal knowledge about whether there was really a contract of
loan between A and B. What he knows is what A told him.
A: Under the law, this is hearsay which is normally inadmissible.
However, under Section 26, the declaration of a party as to a
relevant fact may be given in evidence against him. Note that in the
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
what A declared to him.
Omission
Omission means failure to act or to make a declaration when one
ought to. An example is Section 32.
Rule 130, Section 32. Admission by silence. — An act or declaration
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
as naturally to call for action or comment if not true, and when
proper and possible for him to do so, may be given in evidence
against him.
The perfect example of omission is the case of Estrada vs. Desierto.
Q: Are all types of admissions admissible against the party thereto?
A: No. According to whether or not an admission is favorable to the
party making it, an admission can either be an admission per se
(under Section 26) or a self-serving admission.
Self-serving Admission
It is an admission made by a party out of court at one time and
which is favorable to the party making it. It is excluded on the same
ground as any hearsay evidence – lack of opportunity for cross-
examination by the adverse party, on the consideration that its
admission would open the door to fraud and fabrication of
testimony.
It is an admission favorable to the party making it. (Lichauco vs.
Atlantic Gulf)
LAW ON EVIDENCE
Take note that the concept of self-serving admission does not
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
party the opportunity for cross-examination.
What is covered therefore is when a third party witness testifies in
court about the self-serving admission made by the party.
Requisites of a self-serving admission
1. The testimony is favorable to the declarant.
2. It is made extrajudicially.
3. It is made in anticipation of litigation. It means that you fear
any case that may be filed against you. That is why you do this,
you do that.
In anticipation of litigation
This requisite covers evidence that is seemingly “planted”, for the
lack of a better term.
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
goes around and tells C, D, E that he had actually paid the bank.
In effect, by telling C, D, and E that he had already paid the loan, he
is actually planting evidence. He can use their testimony to
corroborate his defense of payment. Is that allowed? The answer of
course is no. Such planted evidence is not admissible, it being self-
serving.
Take note of the effect if the admission is not self serving:
Example: A was sued by B for collection of a debt. In his answer, A
categorically denied having contracted any loan from B. However,
prior to the filing of the case, A spoke to C, D, and E and told them
that he actually borrowed money from B to buy a car.
What is different here? He is actually advocating something that
would tend to establish a claim against him rather than something
that would establish his own interest. Will that be admissible?
In this case, C, D, and E can all testify because the admission by A is
one that is against his interests instead of being favorable to his
cause.
Rationale of the inadmissibility of a self-serving admission
A man may be safely believed if he declares against his own
interests, but not if he advocates his interest. (Lichauco vs. Atlantic
Gulf and Pacific, 84 Phil 342)
It is excluded on the same ground as any hearsay evidence, that, the
lack of opportunity for cross examination by the adverse party.
(National Development Compnay vs. Workmen’s Compensation
Commission)
Self-serving admissions, when admissible
1. If they are made in open court;
2. Giving full opportunity to the adverse party to exercise his right
of cross-examination.
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Example (actual JZE case)
JZE: You mentioned in your answer Mr. Witness, that it was not the
plaintiff who planted the crops in the subject land. If it was not the
plaintiff, who was it then?
Witness (Defendant): I was the one who planted it together with my
father.
Atty Um: Objection your honor, self-serving!
Is it self-serving? If you look at the concept of a self-serving
admission in the context of whether or not it favors the party
making the admission, then that will be serving, but is that the self-
serving admission guarded by the law against?
That is actually a misconception borne out of ignorance!
Not every testimony that is favorable to the party is considered self-
serving. If the rule were otherwise, all testimonies of party-litigants
would be self-serving and therefore inadmissible because it is very
rare for a party to advocate against his own cause.
CLEMEÑA vs. BIEN (2006)
"Self-serving evidence," perhaps owing to its descriptive
formulation, is a concept much misunderstood. Not infrequently,
the term is employed as a weapon to devalue and discredit a party's
testimony favorable to his cause. That, it seems, is the sense in
which petitioners are using it now. This is a grave error.
"Self-serving evidence" is not to be taken literally to mean any
evidence that serves its proponent's interest. The term, if used with
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
include testimony that he gives as a witness in court. Evidence of
this sort is excluded on the same ground as any hearsay evidence,
that is, lack of opportunity for cross-examination by the adverse
party and on the consideration that its admission would open the
door to fraud and fabrication. In contrast, a party's testimony in
court is sworn and subject to cross-examination by the other party,
and therefore, not susceptible to an objection on the ground that it
is self-serving.
Another example (actual JZE case)
JZE: The defendant testified it was his father and himself, not the
Plaintiff, who planted the crops in the subject land. What knowledge
do you have of this, if any?
Non-party Witness: I know this because they paid me to help them
clear the forest.
Atty. Um: Objection, Your honor! Self-Serving!
Is Atty. Um’s objection correct? No.
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
based on his personal knowledge.
In this case, the witness has no interest in the case, unless he is a co-
party plantiff or a co-party defendant.
LAW ON EVIDENCE
Another example (actual JZE case): My client filed an action for
declaration of the nullity of marriage on the ground of mutual
psychological incapacity of both my client and his wife. His wife
opposed the petition. During the trial, I presented my client as a
witness to testify on what constitutes about his psychological
incapacity.
JZE: What psychological disorder are you referring to Mr. Witness?
Husband: I am a sex maniac, Sir.
JZE: Would you care to elaborate?
Husband: Sure! I crave for sex constantly. My wife cannot satisfy me
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
play with myself.
OC: Objection, your Honor! Self-serving!
Court: Atty. Espejo, Comment?
JZE: Your honor, please, this is not self-serving. Counsel can cross
examine. Besides, testimony is self-serving only when it is favorable
to the witness. Here, your Honor, he is actually advocating against
his own interest. Testimony is self-deprecating, your Honor.
Court: Objection is overruled. It is self-deprecating. You may
continue.
Was the Court or JZE correct?
Yes, the court was correct in overruling the objection but the ground
relied upon is not correct. Therefore, I am also wrong.
The fact that the testimony was self-deprecating is not a proper
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
sex maniac, that will prove his psychological incapacity.
Admissions per se under Section 26
An admission is any statement made by a party to a lawsuit, either
before a court or during its pendency, which tends to support the
position of the other side or diminish his own position.
Q: An admission about a fact in issue in a case made while the case
is pending will always be a judicial admission. True or False?
A: False. It depends on where he made the admission. If he made it
in open court, or if he made it in a deposition or in a judicial
affidavit, that is a judicial admission. But if he made it outside the
court, then it becomes an extra-judicial admission.
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
admissible evidence in a court proceeding, even though it is
technically considered hearsay (which is normally inadmissible).
Now cross reference this with Miranda Rights enshrined in Article 3,
Section 12 (1) of the Constitution:
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“You have the right to remain in silent. Anything you say can and will
be used against you in a court of law.”
Requisites for the admissibility of an admission
1.) It must involve matters of fact and not of law.
2.) It must be categorical and definite.
It means that it is not susceptible to interpretation. It has
to be categorically stated. It must also specifically relate to
a definite fact.
3.) It must be knowingly and voluntarily made.
4.) It must be adverse to the admitter’s interest.
It must be adverse because if not, it will be considered as a
self-serving admission and therefore, inadmissible.
Adverse to the admitter’s interest
Flight is considered a disserving act, since it is prejudicial to the
interest of the accused. Flight is considered as circumstantial
evidence of his guilt. FATETUR FACINUS IS QUI JUDICUM FUGIT.
However, non-flight cannot be used as evidence to prove his
innocence, because that will be considered as an act that is
favorable to the interest of the accused.
ADMISSION CAN EITHER BE
1.) Express - those made in a definite and unequivocal language; or
2.) Implied - those which may be inferred from the act, conduct,
declaration, omission, or silence of a party.
EXAMPLES OF IMPLIED EXTRA-JUDICIAL ADMISSIONS
1. Laches
Laches is defined as the failure or neglect for an unreasonable and
unexplained length of time, to do that which by exercising due
diligence, could or should have been done earlier.
It is considered to be an implied admission of lack of merit of one’s
cause of action.
2. Flight and Concealment
Flight strongly indicates a guilty mind and betrays the existence of
guilty conscience. It is an implied admission of guilt. (People vs.
Herrera)
3. Silence
Rule 130, Section 32. Admission by silence. — An act or declaration
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
as naturally to call for action or comment if not true, and when
proper and possible for him to do so, may be given in evidence
against him.
PEOPLE vs. ESPANOL (2009)
LAW ON EVIDENCE
Appellant’s act of pleading for his sister-in-law’s forgiveness may be
considered as analogous to an attempt to compromise, which in
turn can be received as an implied admission of guilt under Section
27, Rule 130.
Another piece of evidence against appellant was his SILENCE when
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
of the Rules of Court.
4. Offer of Compromise
An offer of compromise by the accused may be received in evidence
as an implied admission of guilt. (Section 27, Rule 130)
The repeated offer of one conspirator constitutes a strong indication
and an implied admission of guilt of said conspirator and the two
accused and appellants in this case. (US vs. Torres).
5. Plea of Forgiveness
The perfect example is the case of People vs. Abadies, which is
about a father who raped his own daughter. He sent a letter asking
for his daughter’s forgiveness.
PEOPLE vs. ABADIES (2002)
A cursory reading of the relevant parts of the letter will readily show
that accused-appellant was indeed seeking pardon for his misdeeds.
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
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.
Patawarin mo na ako anak. x x x."
There is no iota of doubt that accused-appellant was asking
forgiveness for having committed the acts with which he now stands
charged. Settled is the rule that in criminal cases, except those
involving quasi-offenses or those allowed by law to be settled
through mutual concessions, an offer of compromise by the accused
may be received in evidence as an implied admission of guilt.
Evidently, no one would ask for forgiveness unless he had
committed some wrong and a plea for forgiveness may be
considered as analogous to an attempt to compromise. Under the
circumstances, accused-appellant’s plea of forgiveness should be
received as an implied admission of guilt.
6. Offer of Marriage
An offer of marriage during the investigation of the rape case is
considered an implied admission of guilt. (People vs. Oliquino)
7. Withdrawal of Appeal and Acceptance of Lowered Penalty
8. Influence
An attempt to influence witnesses, whether the influence tended
to bring forth false testimony, or to suppress evidence, is an
implied admission of the weakness of a party’s cause.
9. Sudden Affluence
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A change for the better in the financial condition of a person
accused of a crime involving money, immediately or shortly after
the date of the crime, may be shown upon the theory that sudden
and unexplained possession of funds has a tendency to connect
said person to the said crime.
COMPROMISES
Rule 130, Section 27. Offer of compromise not admissible. — In civil
cases, an offer of compromise is not an admission of any liability,
and is not admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal
negligence) or those allowed by law to be compromised, an offer of
compromise by the accused may be received in evidence as an
implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of
guilty to lesser offense, is not admissible in evidence against the
accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other
expenses occasioned by an injury is not admissible in evidence as
proof of civil or criminal liability for the injury.
The Good Samaritan Rule provides that, in both civil and criminal
cases, an offer to pay or the payment of medical, hospital, or other
expenses occasioned by an injury is not admissible in evidence as
proof of civil or criminal liability for the injury.
Civil Code Provisions on Compromise
Art. 2028. A compromise is a contract whereby the parties, by
making reciprocal concessions, avoid a litigation or put an end to one
already commenced.
Art. 2034. There may be a compromise upon the civil liability arising
from an offense; but such compromise shall not extinguish the public
action for the imposition of the legal penalty.
Art. 2035. No compromise upon the following questions shall be
valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
Under Section 27, an offer of compromise by the accused may be
received in evidence as an implied admission of guilt except:
1. in cases involving quasi-offenses (criminal negligence);
2. those allowed by law to be compromised;
3. Godoy Doctrine (See discussion below)
Examples of cases allowed by law to be compromised
1. Sec 204, NIRC of the 1997, as amended by Republic Act No.
7646, which lays down the power of the BIR Commissioner to
compromise tax liability.
LAW ON EVIDENCE
2. Paragraph 2 of Article 144 of the Philippine Cooperative Code
expressly provides that all unpaid assessments of previously
registered cooperatives shall be the subject of compromise
settlement on terms favorable to such cooperatives.
3. Criminal cases which are mandatory subject of arbitration and
mediation.
Godoy Doctrine
PEOPLE vs. GODOY (1995)
It has long been held that in cases of public crimes, the accused is
permitted to show that the offer was not made under a
consciousness of guilt but merely to avoid the inconvenience of
imprisonment or for some other reason which would justify a claim
by the accused that the offer to compromise was not in truth an
admission of his guilt or an attempt to avoid the legal consequences
which would ordinarily ensue therefrom.
Atty JZE: Remember that the Godoy Doctrine is not really a direct
restriction but merely a limited restriction. Why? It is because of the
general rule that an offer of compromise is an implied admission of
guilt.
What Godoy is saying is if you made an offer, you are allowed to
plead that you made an offer not because you are guilty but because
you want to avoid the consequences of a prolonged trial or
inconvenience of imprisonment.
Summary: An offer of compromise is admissible as an implied
admission of guilt. But you can rebut the presumption. That is what
Godoy is saying. IT IS ADMISSIBLE BUT REBUTTABLE.
PEOPLE vs. YPARRIGUIRRE (1997)
An offer to compromise does not require that a criminal complaint
be first filed before the offer can be received as evidence against the
offeror.
This means that an offer to compromise may be made in
anticipation of a litigation. That is why lawyers will immediately tell
their client to settle the case before a formal complaint is filed. After
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
dismiss and offer as evidence the waiver signed.
RES INTER ALIOS ACTA RULE
Rule 130, Section 28. Admission by third party. — The rights of a
party cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided.
Latin Maxim: Res Inter Alios Acta Alteri Nocere Non Debet
English Translation: Things done between strangers ought not to
injure those who are not parties to them.
TWO PARTS OF THE RULE
FIRST PART. The rights of a party cannot be prejudiced by an act,
declaration, or omission of another. This means that statements
made or matters accomplished between two parties cannot
prejudice a third party. (Blanza vs. Arcangel, 21 SCRA 4)
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SECOND PART. Under Rule 130, Section 34, evidence that one did or
did not do a certain thing at one time is not admissible to prove that
he did or did not do the same or a similar thing at another time; but
it may be received to prove a specific intent or knowledge, identity,
plan, system, scheme, habit, custom, or usage and the like.
FIRST PART OF RES INTER ALIOS ACTA RULE
The rights of a party cannot be prejudiced by an act, declaration, or
omission of another. A person’s admission is binding upon himself
but his admission is binding upon himself but his admission cannot
bind another. Otherwise, it would be unfair and inequitable.
Example: A filed a case against B and C for ejectment. B and C are
30-year occupants of the land which was previously unregistered
under the Torrens System. Suddenly, in 2015, A came to the land
and showed B and C his Certificate of Title and demanded that they
vacate the property. In 2016, during trial, B settled with A and
executed a quitclaim stating that B has no right whatsoever over the
land.
Q: Can A claim that, since B and C are similarly situated with similar
defenses, B’s quitclaim should also apply to C?
A: No. the right of C cannot be prejudiced by the act and declaration
by B, applying the Res Inter Alios Acta Rule.
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
for 30 years. Can that bind C?
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
effect that A can call B as his witness and ask him to testify. His
testimony is admissible, subject to cross examination by C.
EXCEPTIONS TO THE RES INTER ALIOS ACTA RULE: VICARIOUS
ADMISSIONS
The rights of a party may be prejudiced by the act, declaration, or
omission of another when between the party making the admission
and against whom it is offered, there exists a relation of:
1. partnership
2. agency
3. joint interests
4. conspiracy or
5. privity
VICARIOUS ADMISSIONS
Rule 130, Section 29. Admission by co-partner or agent. — The act
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,
may be given in evidence against such party after the partnership or
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
debtor, or other person jointly interested with the party.
Note that under Section 29, there are three vicarious admissions:
1. admission by a partner
2. admission by an agent
LAW ON EVIDENCE
3. admission by a joint owner, joint debtor, or other person jointly
interested with the party.
Example: A filed a case against B and C for ejectment. B and C claim
to be co-partners or co-owners and 30-year occupants of the land
which was previously unregistered under the Torrens system. They
claim that they contributed money and industry in the cultivation of
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
the land. In 2016, during trial, B settled with A and executed a
quitclaim stating that B has no right whatsoever over the land.
Q: Can A claim that B’s quitclaim be admitted against C?
Atty JZE: This is similar to the previous example that I gave you under
Res Inter Alios Acta Rule. In the previous example, remember that C
cannot be prejudiced by the act or declaration by B.
A: This time, YES. They are co-owners or partners over the land.
Thus, the rights of C can now be prejudiced by the act or declaration
of B. The quitclaim executed by B is admissible against C. Now, they
are vicars. They stand in the place of each other.
RATIONALE
The partner or co-agent is, in legal contemplation, a MERE
EXTENSION OF THE PERSONALITY of the partner or principal and
unless he acts in his own name, the partner and the principal must
comply with all the obligations which the co-partner or agent may
have contracted within the scope of his authority. Hence, whatever
is said by a co-partner or agent to third person, during the course of
the partnership or agency and within the scope of his actual or
apparent authority, relative to the business contemplated by the
partnership or agency, is for legal purposes also the statement of
the co-partner or principal and is therefore, admissible against him.
REQUISITES UNDER SECTION 29
1. There is an act or declaration of a partner or agent that is
prejudicial to the other co-partner or principal;
2. The act or declaration must have been within the scope of the
partner or agents authority;
If a partner performs acts which are ultra-vires or beyond
the scope of his authority, then this exemption will not
apply. The general rule will apply that whatever he does,
whatever he says, it will not bind the partner and the
principal.
3. The act or declaration must have been made during the
existence of the partnership or agency;
It does not apply if made before the agency or even after
the partnership or agency is terminated.
4. The existence of the partnership or agency must be shown by
evidence other than such act or declaration.
Shown by evidence other than such act or declaration
Example: A secured a loan from C. A claimed that he is obtaining the
loan in behalf of his partnership with B.
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Q: If A defaults, can C use the declaration of A in order to hold B
liable?
A: No. The rights of B cannot be prejudiced by the act or declaration
of C. This is because there are no indications from the facts that he
was able to establish the existence of the partnership by evidence
other than such act or declaration.
Q: What should C do?
A: He must first establish by testimonial or documentary evidence
the existence of the partnership, independent of the act or
declaration of A that he and B are partners.
For instance, C can present documentary evidence such as an
Articles of Partnership or contracts jointly entered by A and B as
partners. C can also present the testimony of a witness other than
the declarant which establishes the partnership may be introduced.
If C succeeds, that is the time he can now introduce into evidence
the declaration of A.
Note: The declaration alone cannot be used to establish the
partnership or agency.
VILLANUEVA vs. BALAGUER (2009)
FACTS: On March 31, 1992, petitioner Francisco N. Villanueva, then
Assistant Manager for Operations of Intercontinental Broadcasting
Corporation Channel 13 (IBC-13) was dismissed from employment
on the ground of loss of confidence for purportedly selling forged
certificates of performance, which are official reports certifying the
airing of ads for the entities that placed the ads. These reflect the
dates and times when the ads were broadcast as required by the
COMELEC. Contesting his termination, petitioner filed a complaint
for illegal dismissal before the National Labor Relations Commission.
During the pendency of the labor case, news articles about
irregularities in IBC-13 were published in several newspapers. In
these news articles, respondent Virgilio P. Balaguer, then President
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
an Operations Executive for selling forged certificates of
performance.
On September 25, 1992, petitioner Villanueva filed before the
Regional Trial Court of Quezon City a complaint for damages against
Balaguer, which was later amended by impleading IBC-13 as
additional defendant.
Petitioner claimed that respondents caused the publication of the
subject news articles which defamed him by falsely and maliciously
referring to him as the IBC-13 Operations Executive who sold forged
certificates of performance.
IBC-13 also denied participation in the publications, claiming that
the press statements were done solely by Balaguer without its
authority or sanction. IBC-13 also filed a counterclaim against
petitioner and a cross-claim against Balaguer.
In its cross-claim against Balaguer, IBC stated that “The acts
complained of by the plaintiff were done solely by co-defendant
Balaguer. Balaguer resorted to these things in his attempt to stave
off his impending removal from IBC.”
LAW ON EVIDENCE
Villanueva therefore points to this as an admission that can be taken
against Balaguer inasmuch as this is an admission of IBC that its own
agent, Balaguer, committed the libelous acts.
ISSUE: Whether or not Section 29 applies.
HELD: Rule 130, Section 29 does not apply. IBC-13’s cross-claim
against Balaguer effectively created an adverse interest between
them. Hence, the admission of one defendant is not admissible
against his co-defendant.
NARRA NICKEL MINING vs. REDMONT MINING (2014)
FACTS: Narra Mining, Tesoro Mining, and McArthur Mining filed
Mineral Production Sharing Agreement (MPSA) applications before
the DENR over an area in Palawan. Redmont also filed an application
for the same area and opposed the other applications on the ground
that the other applicants are disqualified as they are controlled by
MIBMI Resources Inc, a 100% Canadian corporation. The DENR
granted Redmont’s application and disqualified the others.
On appeal, the CA justified upholding Redmont’s contention using
the exceptions to the Res Inter Alios Acta Rule (Section 29 and 31)
on the ground that corporate documents of MBMI Resources, Inc.
furnished its stockholders in their head office in Canada suggest that
they are conducting operations through local counterparts.
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
by privies” under the Rules of Court in the instant case, by pointing
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
petitioners.
Atty JZE: This argument is really good because if you remember, a
corporation cannot be a partner in a partnership.
ISSUE: Can you apply the term “partner” for a corporation doing
business through a local subsidiary?
HELD: Yes. A partnership is defined as two or more persons who
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
be "akin" to partnerships. Since it is difficult to distinguish between
joint ventures and partnerships, thus:
[T]he relations of the parties to a joint venture and the nature of
their association are so similar and closely akin to a partnership that
it is ordinarily held that their rights, duties, and liabilities are to be
tested by rules which are closely analogous to and substantially
the same, if not exactly the same, as those which govern
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
venture, very little law being found applicable to one that does not
apply to the other.
Though some claim that partnerships and joint ventures are totally
different animals, there are very few rules that differentiate one
from the other; thus, joint ventures are deemed "akin" or similar to
a partnership. In fact, in joint venture agreements, rules and legal
incidents governing partnerships are applied.
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Accordingly, culled from the incidents and records of this case, it can
be assumed that the relationships entered between and among
petitioners and MBMI are no simple "joint venture agreements." As
a rule, corporations are prohibited from entering into partnership
agreements; consequently, corporations enter into joint venture
agreements with other corporations or partnerships for certain
transactions in order to form "pseudo partnerships."
Obviously, as the intricate web of "ventures" entered into by and
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
laws on partnership should be applied. Thus, a joint venture
agreement between and among corporations may be seen as similar
to partnerships since the elements of partnership are present.
Considering that the relationships found between petitioners and
MBMI are considered to be partnerships, then the CA is justified in
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
and McArthur.
DOCTRINES TO REMEMBER
1. The fact that a counter-claim was filed against the putative co-
partner or agent makes Section 29 inapplicable (see
VILLANUEVA vs. BALAGUER)
2. Section 29 is applicable to joint ventures between corporations,
foreign and domestic. (see NARRA vs. REDMONT)
Rule 130, Section 30. Admission by conspirator. — The act or
declaration of a conspirator relating to the conspiracy and during its
existence, may be given in evidence against the co-conspirator after
the conspiracy is shown by evidence other than such act of
declaration.
Under Section 30, the existence of the conspiracy, which exists
when two or more persons come into an agreement concerning the
commission of a felony, must be established by evidence other than
the act or declaration of the conspirator.
THE RAPE OF RRRAMON: AN ILLUSTRATION
A month after Rrramon was kidnapped, rendered unconscious and
molested, Bangs was arrested as main suspect of the crime. When
she was interviewed on TV, she admitted her participation in the
crime and implicated Maja and Sarah as her fellow culprits in
planning and executing the crime.
Q: Is her statement admissible?
A: It is admissible against herself by reason of Section 26, which
provides that the act, declaration, or omission of a party as to a
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
provides that the rights of a party cannot be prejudiced by an act,
declaration, or omission of another.
Q: How to implicate Maja and Sarah?
A: The requisites under Section 30 must be present.
LAW ON EVIDENCE
REQUISITES UNDER SECTION 30
1. The declaration or act be made or done during the existence of
the conspiracy;
2. The declaration or act must relate to the conspiracy; and
3. The conspiracy must be shown by evidence other than the act
or declaration (by evidence aliunde)
Q: Going back to the example, did the declaration relate to the
conspiracy? Yes.
Q: Was the declaration made during the existence of the
conspiracy? No, the declaration of Bangs was made long after the
conspiracy was over.
Q: Can the prosecutors prove the conspiracy other than the
declaration of Bangs? Maybe. But how?
Q: Why evidence aliunde?
A: It is because conspiracy cannot be proved by direct evidence.
Necessarily, it has to be proven by circumstantial evidence in the
form of testimonies. There is no documentary evidence because the
conspirators do not reduce their agreement into writing.
So if the prosecutors can present testimonies that tend to establish
the existence of conspiracy by clear and convincing evidence, the
declaration may be admissible.
THE RAPE OF RRRAMON (Same example but this time, admissible)
Rrramon was kidnapped, rendered unconscious and molested.
Before Rrramon was abducted, Julia overheard Bangs, Maja and
Sarah planning the crime. Bangs also told her manager about their
plan to abduct Rrramon because he was “so darn cute but pakipot.”
Bangs was arrested and she promptly implicated Maja and Sarah. Is
Bang’s statement to her manager admissible?
Q: Applying the requisites, did the declaration relate to the
conspiracy? Yes.
Q: Was the declaration made during the existence of the
conspiracy? Yes. The declaration of Bangs was made during the
existence of the conspiracy.
Q: Can the prosecutors prove the conspiracy other than the
declaration of Bangs? Yes. They can present Julia who overheard
them planning the abduction.
DOCTRINES TO REMEMBER
1. Incriminating declarations of a co-conspirator made in the
absence or without the knowledge of the others after the
conspiracy has come to an end is inadmissible.
2. The arrest of the declarant results in the termination of the
conspiracy. Anything said by the declarant out-of-court after
that would not anymore be made “during its existence.”
3. If the declarant takes the witness stand and repeats the
extrajudicial admission about his co-conspirators in court, the
same is admissible.
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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
independent evidence. (People vs. Serrano)
Q: Are extrajudicial admissions made by a conspirator after the
conspiracy has terminated and even before the trial admissible
against the co-conspirator?
A: No, except in the following cases:
1. If made in the presence of the conspirator who expressly or
impliedly agreed therein;
2. Where the facts in said admission are confirmed in the
individual extrajudicial confessions made by the co-conspirator
after their apprehension;
3. As a circumstance to determine the credibility of the witness;
or
4. As circumstantial evidence to show the probability of the co-
conspirators participation in the offense.
INTERLOCKING CONFESSIONS
These are extrajudicial confessions identical in their material
respects.
Extrajudicial confessions independently made without collusion and
are identical with each other in their material respects and
confirmatory of the others are admissible as circumstantial evidence
against co-accused implicated therein to show the probability of the
latter’s actual participation in the commission of the crime. (People
vs. Encipido, 146 SCRA 492)
Rule 130, Section 31. Admission by privies. — Where one derives
title to property from another, the act, declaration, or omission of
the latter, while holding the title, in relation to the property, is
evidence against the former.
REQUISITES UNDER SECTION 31
1. There must be privity between the party and the declarant;
2. The declarant as predecessor-in-interest made the declaration
while holding the title to the property; and
3. The admission relates to the property.
Take note that under Section 31, the declaration must be prejudicial
over the claim in the property because otherwise, you apply the Res
Inter Alios Acta Rule. Stated in another way, you cannot apply
Section 31 as an exception if the declaration made is not adverse to
the claim in the property.
WHO ARE PRIVIES?
Those who have mutual or successive relationship to the same rights
of property or subject matter such as personal representatives,
heirs, devisees, legatees, assigns, voluntary grantees, or judgment
creditors or purchasers from them with notice to the facts. (Black
Law’s Dictionary)
The Supreme Court, in certain cases, calls this as “causahabientes”
or successor, assignee, or heir.
Examples:
LAW ON EVIDENCE
1. A lessor and his lessee, a grantor and a grantee, an assignor and
an assignee (by contract)
2. An executor or an administrator and the estate of the deceased
( by representation)
3. An heir and his ascendant (by blood)
Illustration: X, the father of Z, while the former was alive, openly
told his acquaintances, that the land where his house stood had
already been sold to Y.
Here the declaration by X is not admissible against Z, the sole heir of
Y, because the statement was made after X held title to the land.
DOCTRINE TO REMEMBER
When the former owner of the property made the declaration after
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
rights of a party cannot be prejudiced by the act, declaration or
omission of another (Gevero vs. IAC, 189 SCRA 201)
September 9, 2016
SECOND PART OF RES INTER ALIOS ACTA RULE
Rule 130, Section 34. Similar acts as evidence. — Evidence that one
did or did not do a certain thing at one time is not admissible to
prove that he did or did not do the same or similar thing at another
time; but it may be received to prove a specific intent or knowledge;
identity, plan, system, scheme, habit, custom or usage, and the like.
The rule prohibits the admission of the so-called "propensity
evidence" which is evidence that tends to show that what a person
has done at one time is probative of the contention that he has done
a similar act at another time.
Why is it that that is a rule of thumb? There are two simple issues
that we need to remember here:
1. Issue of relevancy
2. Issue of propriety
WHY INADMISSIBLE?
■ ISSUE OF RELEVANCY. What a person did in the past is irrelevant
to the issue of whether he did what he is charged at present.
■ ISSUE OF PROPRIETY. Evidence of similar acts or occurrences
compels the defendant to meet allegations that are not mentioned
in the complaint, confuses him in his defense, raises a variety of
relevant issues, and diverts the attention of the court from the
issues immediately before it. (CRUZ vs. COURTOF APPEALS)
EXCEPTIONS UNDER SECTION 34
1. MODUS OPERANDI
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.
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When you admit evidence of similar acts by way of this exception,
you are not actually receiving evidence as to the truth. In the
example I gave you, there’s this guy MATEO who has this habit of
molesting his helper. In 2010, he was accused of rape, he settled
this case. 2011 – accused of acts of lasciviousness this time by his
labandera (settled). 2012 – rape again this time, accused by his cook
(settled). This year, he was again accused of molesting his helper.
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
evidence of why he did it. But this will become a circumstantial
evidence to prove that he has a propensity to do these acts by the
weight of this history.
Illustrative Case:
CRUZ vs. CA (1998)
FACTS: The Cruz heirs (Sunshine, Geneva and Rayver) executed a
deed of partition of their father's estate. In the said Deed, they
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:
"Despite the execution of the Deed of Partition and the eventual
disposal or sale of their respective shares, the contracting parties
herein covenanted and agreed among themselves that they shall
share alike and receive equal shares from the proceeds of the sale of
any lot or lots allotted to and adjudicated in their individual names
by virtue of this deed of partial partition."
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
declared that whatever was given to them by way of partition, is
already theirs. They are the absolute owners of the property. But
subsequently for whatever reason, they executed a MOA.
So what is the effect of that? You can actually contend that because
they are still sharing in the proceeds, there still exists some
semblance of co-ownership. Why did this become an issue?
Because…
Geneva obtained a loan which she was unable to pay. A case was
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
execution and was bought by her creditor as highest bidder. Her co-
heirs filed a case to question the execution sale on the ground that,
as co-owners, they have the right to redeem the property.
Atty JZE: Remember that there are two contracts here. First is the
deed of partition where they declared that they are absolute owners
of the land adjudicated to them. Second, the MOA where they
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
family.
During trial, Geneva's creditor belied this co-ownership by
presenting deeds of sale and contracts of mortgage entered into by
Geneva where she stated that she was the absolute owner of the
lands given to her by the Deed of Partition, including the one levied
upon during execution. Geneva objected on the ground of Res Inter
Alios Acta.
LAW ON EVIDENCE
Atty JZE: What is the creditor here trying to do? The creditor is trying
to establish that by prior contracts entered into by Geneva, she has
already declared that she is the absolute owner of such property.
This includes a contract of mortgage executed over the very same
property levied at execution.
.
HELD: Res inter alios acts prohibits the admission of evidence that
tends to show that what a person has done at one time is probative
of the contention that he has done a similar as act at another time.
Evidence of similar acts or occurrences compels the defendant to
meet allegations that are not mentioned in the complaint, confines
him in his defense, raises a variety of irrelevant issues, and diverts
the attention of the court from the issues immediately before it.
Hence, this evidentiary rule guards against the practical
inconvenience of trying collateral issues and protracting the trial and
prevents surprise or other mischief prejudicial to litigants.
The rule, however, is not without exception. While inadmissible in
general, collateral facts may be received as evidence under
exceptional circumstances, as when there is a rational similarity or
resemblance between the conditions giving rise to the fact offered
and the circumstances surrounding the issue or fact to be proved.
Atty JZE: According to the SC, this is an exception that is applicable.
Is there any rational similarity? Is there any resemblance to prove
what was probably the state of mind of Geneva at the time the
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?
Evidence of similar acts may frequently become relevant, especially
in actions based on fraud and deceit, because it sheds light on the
state of mind or knowledge of a person; it provides insight into such
person’s motive or intent; it uncovers a scheme, design or plan; or it
reveals a mistake.
In this case, petitioners argue that transactions relating to the other
parcels of land they entered into, in the concept of absolute owners,
are inadmissible as evidence to show that the parcels in issue are
not co-owned. The court is not persuaded. Evidence of such
transactions falls under the exception to the rule on the res inter
alios acta. Such evidence is admissible because it is relevant to an
issue in the case and corroborative of evidence already received.
Atty JZE: So that’s when you apply this exception. First, when it is
relevant – there’s a rational resemblance. Second, if it is used as
corroborative evidence of evidence already received. READ THIS
CASE! IT IS VERY IMPORTANT. Gamay man gud questions under this
section so in all probability, if this topic is asked in the bar, this will
be the case.
The relevancy of such transactions is readily apparent. The nature of
ownership of said property should be the same as that of the lots in
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
of absolute owners, then the lots in question should similarly be
treated as absolutely owned in fee simple by Geneva's creditor.
Unmistakably, the evidence in dispute manifests petitioner’s
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-
ownership.
SUMMARY OF ALL EXCEPTIONS
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based on the lectures of ATTY. JESS ESPEJO
1. MODUS OPERANDI – What do you need to remember here?
When you admit evidence of similar acts by way of exception of
MODUS OPERANDI, you are not admitting evidence for its
truth, YOU ARE ADMITTING IT AS CIRCUMSTANTIAL EVIDENCE
OF SUCH PROPENSITY.
In all probability, because this is what he tends to do all the
time, there is probability that he may have done something
similar to it.
2. RATIONAL SIMILARITY- When there is a rational similarity or
resemblance between the conditions giving rise to the fact
offered and the circumstances surrounding the issue or fact to
be proved. (Cruz vs. CA)
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
into such person's motive or intent; it uncovers a scheme,
design or plan; or it reveals a mistake.
Rule 130, Section 32. Admission by silence. — An act or declaration
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
as naturally to call for action or comment if not true, and when
proper and possible for him to do so, may be given in evidence
against him.
Now, what’s the first instinct of man? Self-preservation. If you hear
something that’s damning to you, your natural reaction is to correct
a possible misconception. But when something is done or said that
ought to have affected you and you did not react, the logical
presumption is that maybe you did not react because it might be
true.
REQUISITES UNDER SECTION 32
1. The party must have heard or observed the act or declaration
of the other person.
2. He must have had the opportunity to deny it.
3. He must have understood the statement.
4. He must have an interest to object, such that he would
naturally have done so, if the statement was not true;
5. The facts were within his knowledge; and
6. The fact admitted or the inference to be drawn from his silence
is material to the issue.
DOCTRINES TO REMEMBER
1. The rule does not apply when a person is under an official
investigation. A person under a custodial investigation for the
commission of an offense has the right to remain silent and to
be informed of that right.
Why? Because even if it is under custodial investigation, you
have the right to remain silent. You have even the right to be
told that you have the right to remain silent. So when your
silence is pursuant to that, then it is not admission.
2. The silence of an accused under custody or his failure to deny
statements by another implicating him in a crime cannot be
considered as a tacit confession of his participation in the
commission of the crime. (People vs. Alegre, 1979)
LAW ON EVIDENCE
3. Where no good reason exists for the party to comment on the
act or declaration, as when the act or declaration was not
specifically directed to the party who remained silent, the rule
does not apply.
4. The rule also does not apply when the party had no opportunity
to comment on the act or declaration.
5. Where the act or declaration was made in the course of an
official investigation (People v. Tia Fong, 98 Phil. 609) or when
his silence is upon the advice of counsel, the rule does not
apply.
There are reasons why lawyers do the talking and the clients are just
supposed to keep quiet unless they are asked.
DOCTRINE OF ADOPTIVE ADMISSION
It states that a party may, by his words or conduct, voluntarily adopt
or ratify another's statement. Where it appears that a party clearly
and unambiguously assented to or adopted the statements of
another, evidence of those statements is admissible against him.
It is a party's reaction to a statement or action by another person
when it is reasonable to treat the party's reaction as an admission of
something stated or implied by the other person.
EFFECT: A third person's statement becomes the admission of the
party embracing or espousing it.
Why is it discussed under Sec. 32? Because the effects are the same.
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
is you admit it by your silence.
Under the doctrine of adoptive admission, someone says a
statement but somehow, because of what you say or what you do,
you did not refute it, you are deemed to have adopted it. That
statement becomes the admission of the party who adopts the
statement.
ADOPTIVE ADMISSION MAY OCCUR WHEN:
a. Expressly agrees to or concurs in an oral statement made by
another;
b. Hears a statement and later on essentially repeats it;
c. Utters an acceptance or builds upon the assertion of another;
d. Replies by way of rebuttal to some specific points raised by
another but ignores further points which he or she has heard
the other make; or
e. Reads and signs a written statement made by another.
(Republic v. Kendrick Development Corp., G.R. 149576, Aug. 8,
2006)
ESTRADA vs. DESIERTO (2001)
One good example of adoptive admission is the alleged admission
made by President Estrada. His options had dwindled when,
according to the Angara Diary, the Armed Forces withdrew its
support from him as President and Commander-in-Chief. Thus,
Angara had to allegedly ask Senate President Pimentel to advise
Estrada to consider the option of "dignified exit or resignation."
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based on the lectures of ATTY. JESS ESPEJO
Estrada did not object to the suggested option but simply said he
could never leave the country.
HELD: His silence on this and other related suggestions can be taken
as adoptive admissions by him. An adoptive admission is a party's
reaction to a statement or action by another person when it is
reasonable to treat the party's reaction as an admission of
something stated or implied by the other person.
SIR: Again, I criticize this case:
1. It is based on Hearsay Evidence. It is not based on personal
knowledge. To my mind, this is triple-deck hearsay.
2. The SC practically invented an exception to the doctrine of Res
Inter Alios Acta Rule taken from American Jurisprudence.
Somehow, to my mind, what is important here is to really put
the Arroyo administration on legit grounds. The grounds by the
SC are quite flimsy but the SC had no choice because at that
time, Arroyo is already in Malacanang. SC said “WE ARE FINAL
NOT BECAUSE WE ARE INFALLIBLE, WE ARE INFALLIBLE ONLY
BECAUSE WE ARE FINAL.”
Section 32: “Qui Tacet Consentire Videtur.” - He who is silent is
deemed to consent.
Rule 130, Section 33.Confession. — The declaration of an accused
acknowledging his guilt of the offense charged, or of any offense
necessarily included therein, may be given in evidence against him.
WHAT IS A CONFESSION?
It is a categorical acknowledgment of guilt made by an accused of
the offense charged or of any offense necessarily included therein,
without any exculpatory statement or explanation. Thus, even if he
admits the offense but alleges a justification therefor, the same is
merely an admission. It cannot be considered a confession.
From the definition, what do we need to remember, CATEGORICAL.
He has to say “YES I DID IT! I killed that guy.”
AND WITHOUT ANY EXCULPATORY STATEMENT – “Yeah I killed him
but…” No buts.
CLASSIFICATIONS OF CONFESSION
1. Judicial confession is one made by the accused before a court
in which the case is pending and in the course of legal
proceedings therein and, by itself, can sustain conviction.
It can happen while the witness is in the witness stand or it
could be during pre-trial. Remember the so called Fule Doctrine
that we discussed where it was categorically declared by the SC
that any agreement, confession or admission made during pre-
trial must be signed by the accused and counsel, otherwise
those admissions are inadmissible.
2. Extrajudicial confession— is one made in any other place or
occasion and cannot sustain a conviction unless corroborated
by evidence of corpus delicti.
So, a judicial confession is sufficient in itself to convict. An
extrajudicial confession, on the other hand, is not sufficient to
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,
there are exceptions.
EXCEPTIONS
1. In case of implied acquiescence of the co-accused to the
extrajudicial confession;
2. In case of interlocking confessions;
“I confessed!” and then the other co accused would also
testify as to practically the same confession.
3. Where the accused admitted the facts stated by the confessant
after being apprised of such confession;
Love, Rene
Q: Is this a confession?
Atty JZE: Is it a categorical and express acknowledgement of guilt
that is also unconditional and unqualified? Take note that he only
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.
A: No. Rene's statement is not a confession but an admission. A
confession is one wherein a person acknowledges his guilt of a
crime, which Rene did not do.
RULE RE: EXTRAJUDICIAL CONFESSIONS

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LAW ON EVIDENCE
Rule 133, Section 3. An extrajudicial confession made by an accused,
shall not be sufficient ground for conviction, unless corroborated by
evidence of corpus delicti.
Corpus delicti (body of the crime) means the actual commission of
the crime charged (People vs. Madrid, 88 Phil. 1), or the specific fact
of loss or injury (People vs. Garcia, 99 Phil. 381).
In a crime of murder, the corpus delicti therefore is the body of the
deceased person. So you cannot convict an accused unless you
present the body of the deceased? TAMA or MALI? MALI, you don’t
need to produce the body of the victim. That would be scary!
Objection your honor, I’m scared!
Is it possible to convict an accused for the crime of murder if the
body of the victim was never found? YES. Jurisprudence provides
that there can still be conviction. So do not interpret corpus delicti
literally because it does not mean “the body”. It means the actual
commission of the crime charged or the specific fact or loss.
EXAMPLES OF CORPORA DELICTI
1. In murder or homicide, the corpus delicti is the fact of death
which may be proved even circumstantially. (People vs. Garcia)
2. In robbery or theft, the corpus delicti is fact of loss (People v.
Niem, 75 Phil. 668).
3. In arson, the corpus delicti is the fact of burning. (People v.
Marquez, 77 Phil. 83)
Rule 133, Section 3 in effect requires that, for a conviction to be
made based on an extrajudicial confession, there must be evidence
of corpus delicti. Thus, the law absolutely requires more than one
type of evidence to convict the accused. (extrajudicial confession +
corpus delicti).
Q: What are other instances where the law absolutely mandates the
presentation of more than one type or piece of evidence in order to
prove a matter of fact?
Atty JZE: I’ll tell you examples where even one piece of evidence is
sufficient to convict:
1. Conviction for rape can be made even from the sole testimony
of the victim.
2. Conviction for murder can be made even from just the
testimony of one eyewitness.
A: Going back to the question, the following are the other instances
where the law mandates the presentation of more than one type of
evidence to prove a matter of fact:
1. A conviction based on circumstantial evidence requires that
there be more than one circumstance (Rule 133, Section 4).
2. In the crime of treason under Art. 114 of the Revised Penal
Code, no person shall be convicted unless on the testimony of
two witnesses at least to the same overt act or on confession of
the accused in open court.
3. A person executing the notarial will should sign on every page
and must be witnessed by at least three (3) persons who should
also sign the will (Art. 805, Civil Code of the Philippines).
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based on the lectures of ATTY. JESS ESPEJO
Atty JZE: Be mindful of these things because these are the kind of
questions that I love to ask in the exam. Something that would test
your foundation or stock knowledge.
Rule 130, Section 35. Unaccepted offer. — An offer in writing to pay
a particular sum of money or to deliver a written instrument or
specific personal property is, if rejected without valid cause,
equivalent to the actual production and tender of the money,
instrument, or property.
Atty JZE: Sleep the night away because Section 35 will never be asked
in the bar exams.
September 14, 2016
HEARSAY RULE
Rule 130, Section 36. Testimony generally confined to personal
knowledge; hearsay excluded. — A witness can testify only to those
facts which he knows of his personal knowledge; that is, which are
derived from his own perception, except as otherwise provided in
these rules.
Atty. Espejo: In my experience, majority of objections come from this
(hearsay rule) after objections based on relevancy and competency
of witnesses.
Take note on the requirement that when you testify or give
testimonial evidence in a case in court, it has to be based on personal
knowledge, your own personal perception. What did you see, smell,
taste, or touch? Beyond that, or when it was related to you by
somebody else, that is no longer considered as an admissible
testimony.
BASICS
Hearsay evidence is evidence given by a witness based on
information passed to that person by others rather than evidence
experienced at first hand by the witness.
UNCHUAN vs. LOZADA (2009)
Evidence is hearsay when its probative force depends, in whole or in
part, on the competency and credibility of some persons other than
the witness by whom it is sought to be produced.
Atty. Espejo: The situation in vision there is that there would be a
witness who will testify in court as to what somebody else told him.
Have you cross-examined that person who told him the information?
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.
The witness could not lawfully attest that what he will be saying is
the truth. He could not have had the idea whether or not the
declarant’s information is true.
CHARACTERISTICS
 It is an out-of-court declaration repeated by a witness who
himself did not make the declaration
 It is offered to prove the truth of the matter asserted
 It is inadmissible, as a general rule
Atty. Espejo:
LAW ON EVIDENCE
[On out-of-court declaration]
If you heard it from a different court in a different case, that would
still be considered an out-of-court declaration. So, the venue would
not matter. It is when and where you made it. Did you make your
testimony in court based on personal knowledge? If not, then it is
hearsay.
[On offered to prove the truth of the matter asserted]
This is a very important characteristic that you need to remember. If
your statement is simply to prove that it was said but you are not
offering it as the truth of the statement, then it is not considered
hearsay.
TWO CONCEPTS OF HEARSAY EVIDENCE
1. Second hand information (not derived from personal
knowledge of witness); and
2. Testimony by a witness derived from his personal knowledge
BUT the adverse party is not given opportunity to cross-
examine.
For example, Plaintiff presents witness A. A testifies in
court on matters personally known to him. After direct
examination, court tells that defendant can cross examine
on next scheduled hearing. On the next scheduled hearing,
witness A no longer appears and could no longer be
located. The remedy here now is to ask that the testimony
of witness A be stricken out since it now becomes hearsay.
Atty. Espejo: [On no. 2] This is subject to a motion to strike on the
ground that it is hearsay since there was no cross-examination.
On second-hand information made by out-of-court declarant
repeated by a witness in court, you cannot examine the declarant.
Therefore, it is hearsay.
REQUISITES:
A statement will be considered hearsay if it is:
1. An assertive statement
[it has to be an intentional communication of a fact]
2. Made by an out-of-court declarant
[Remember the postulate that even if it was made in court but
in a different case, it would still be considered as an out-of-court
declaration]
3. Offered to prove the truth of the matter asserted therein
[If you only repeat a declaration but then you do not say it is
true, that would be different]
REASONS FOR INADMISSIBILITY [of hearsay]
1. Absence of cross-examination
 While you can examine the witness, you cannot cross-
examine the source of his information
2. Absence of demeanor evidence
 The court cannot determine the credibility of an out-of-
court declarant by judging his demeanor
3. Absence of oath or affirmation
 The out-of-court declarant cannot be subjected to perjury
Atty. Espejo:
On no. 1
Here, there is no telling whether the information is true or not. You
cannot test the truthfulness and accuracy of the statement of an out-
of-court declarant.
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On no. 2
As a judge, you have the ability to observe the demeanor of a
witness. You are not a passive referee. When a witness testifies, the
judge would be able to remember if the witness was immediately
able to offer an explanation to a particular question or naghuna-
huna pa basya? This may mean that the witness is trying to contrive
something. The judge will be able to ascertain the credibility of the
witness. This is very important in determining the weight of the
evidence that may be considered by the court.
AS A RULE OF EXCLUSION
The hearsay character of evidence may be waived by failure to
object. However, admissibility is not the same as evidentiary weight
or probative value.
PHILIPPINE REALTY HOLDINGS CORPORATION vs. FIREMATIC
PHILIPPINES, INC. (2007)
The lack of objection may make an incompetent evidence
admissible, but admissibility of evidence should not be equated
with weight of evidence. Indeed, hearsay evidence whether
objected to or not has no probative value.
HEARSAY EVIDENCE MAY BE:
ORAL, WRITTEN or NON-VERBAL CONDUCT
The rule excluding hearsay is not limited to oral statements. It also
applies equally well to written evidence (such as affidavits, letters,
sworn statements) as well as to non-verbal conduct (such as
gestures and actions).
AFFIDAVITS
The constitutional right to confrontation precludes reliance on
affidavits. Such a constitutional safeguard cannot be satisfied unless
the opportunity is given to the accused to test the credibility of any
person, who, by affidavit or deposition, would impute the
commission of an offense to him. It would be to disregard one of the
most valuable guarantees of a person accused if solely on the
affidavits presented, his guilt could be predicated.
Atty. Espejo: If you are going to submit an affidavit, as a general
rule, that affidavit will not testify for itself. The witness, the affiant,
has to repeat the testimony in court unless counsel is allowed to
conduct the affidavit as the witness’ testimony.
But in quasi-judicial tribunals such as in labor cases, an illegal
dismissal for example. What happens before the Labor Arbiter? You
do not conduct direct examinations of witnesses. The cases are
decided through the position papers. Remember, position papers do
not only show *the party’s+ legal position. It also shows a factual
position. For example, an employee submits a position paper, he
proves the circumstances that led to his dismissal by attaching an
affidavit. The LA, by deciding the case through the position papers
alone, is in effect ruling based on hearsay evidence.
UNCHUAN vs. LOZADA
It is a hornbook doctrine that an affidavit is merely hearsay
evidence where its maker did not take the witness stand. Verily,
the sworn statement of Anita was of this kind because she did not
appear in court to affirm her averments therein.
NEWSPAPER ARTICLES
LAW ON EVIDENCE
Double Deck Hearsay
 It is hearsay within hearsay. It is when a witness testifies as
to an assertion by an out-of-court declarant which in turn
is merely second-hand information. Double hearsay is
actually mere third-hand information.
Atty. Espejo: Recall Estrada vs. Desierto. The Angara diary itself is
hearsay. When it was published in a newspaper and used as
evidence in the Supreme Court, that is already triple deck hearsay.
However, in American Jurisprudence, newspapers are considered
self-authenticating.
Atty. Espejo: This is because of the sheer number of units (of
newspapers) published. You can expect that the copy of the
newspaper that you have is the very exact copy that another person
has. Then, there is no need for authentication. It is already self-
authenticating.
BAR QUESTION 2003
Homer Honesto Henson was charged with robbery. On the
strength of a warrant of arrest issued by the court, Homer
Honesto Henson was arrested by the police operatives. They
seized from his person a handgun. A charge for illegal possession
of firearm was also filed against him. In a press conference called
by the police, Homer Honesto Henson admitted that he had
robbed the victim of jewelry valued at P 500, 000.
The robbery and illegal possession of firearm cases were tried
jointly. The prosecution presented in evidence a newspaper
clipping of the report to the reporter who was present during the
press conference stating that Homer Honesto Henson admitted
the robbery. It likewise presented a certification of the PNP
Firearms and Explosive Office attesting that the accused had no
license to carry any firearm. The certifying officer, however, was
not presented as a witness. Both pieces of evidence were
objected to by the defense.
Question: Is the newspaper clipping admissible in evidence
against Homer Honesto Henson?
Suggested Answer:
Yes, the newspaper clipping is admissible in evidence against
Henson. Regardless of the truth or the falsity of a statement, the
hearsay rule does not apply and the statement may be shown
where the fact that it has been made is relevant. Evidence as to
the making of such statement is not secondary but primary, for
the statement itself may constitute a fact; in issue, or be
circumstantially relevant as to the existence of such a
fact. (Gotesco Investment Corporation vs. Chatto, 1992)
Doctrine of Independently Relevant Statements (IRS)
While the testimony of a witness regarding a statement made by
another person given for the purpose of establishing the truth of the
fact asserted in the statement is clearly hearsay evidence, IT IS NOT
HEARSAY if the purpose of placing the statement on the record is
merely to establish the fact that the statement, or the tenor of such
statement, was made.
Atty. Espejo: In an IRS, as an exception to the hearsay rule, you are
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
statement was made.
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ESPINELI vs. PEOPLE (2014)
Regardless of the truth or falsity of a statement, when what is
relevant is the fact that such statement has been made, the
hearsay rule does not apply and the statement may be shown. As
a matter of fact, evidence as to the making of the statement is not
secondary but primary, for the statement itself may constitute a
fact in issue or is circumstantially relevant as to the existence of
such a fact. This is known as the doctrine of independently
relevant statements.
Atty. Espejo: What we need to determine therefore is when would
the hearsay statement be the very fact in issue and when would it be
a circumstantial evidence of the fact in issue. Either way, it is not
covered by the hearsay rule. (?)
Tenor
The testimony of a witness is made to prove the mere fact that
something said to him by someone and not the truth of what was
said.
PEOPLE vs. MALIBIRAN (2009)
The law provides for specific exceptions to the hearsay rule. One is the
doctrine of Independently Relevant Statements (IRS), where only the fact
that such statements were made is relevant, and the truth or falsity thereof
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,
and the purpose is to prove either that the statement was made or the
tenor thereof.
Atty. Espejo: An evidence is relevant when it tends in any reasonable
degree the truth of the probability and improbability of the fact in
issue. So when it is an IRS, the fact that the statement was made is in
itself relevant.
When is a hearsay statement is the very fact in issue?
CASE SAMPLE
The accused told his neighbor (private complainant),
“Nganongastig-astig man ka?” However, the complainant heard it
as “Nganongadik-adik man ka?” The latter statement is an
imputation of a vice or defect which can be a source of
prosecution for defamation.
Here, when the private complainant testifies in court, he will
narrate to the court what is technically hearsay. He is not
testifying based on his personal information. He is merely relating
what was told by the accused.
But because in the prosecution for slander and defamation, the
very fact in issue is the mere fact that the statement was made. It
is not covered by hearsay rule it being an independently relevant
statement.
Why is IRS admissible despite being hearsay?
1. Because it is RELEVANT.
2. They are relevant because the statement itself is:
a. Either the very fact in issue; or
b. Circumstantial evidence of a fact in issue
The very fact in issue:
LAW ON EVIDENCE
Consider an action for oral defamation where the following
exchange took place between the prosecutor and his witness:
Prosecutor: What did you hear the accused say?
Defense: Objection, Your Honor. Question calls for hearsay
testimony!
Court: Not so fast! Witness may answer.
Witness: The accused said while pointing to the victim:
“You are a thief. You stole my money! You are a liar!”
Circumstantial evidence of the fact in issue:
Let us assume we have a special proceeding in court. Let us say it is
the probate of a testator’s will. Some heirs who felt aggrieved by the
dispositions in the will have raised the issue of the testator’s sanity.
The will was purportedly executed on January 3 of the previous year.
A witness for the oppositor is on the stand to testify on the
testator’s alleged incapacity.
Q: How long have you known the testator?
A: For 20 years by the time he died, Sir.
Q: How did you come to know him?
A: I was her nurse for 20 years, Sir.
Q: On January 3, 2004, what did you hear the testator say?
Objection, Your Honor! (Opposing counsel objects)
Court: Not so fast, witness may answer!
A: In the morning of January 3, he said, “I am DARNA!”
Atty. Espejo: The statement of the testator is not the very fact in
issue but it is circumstantially relevant to the fact in issue, which is
that the testator was of unsound mind at the time the will was
made. Technically speaking, this is hearsay. You are testifying to a
second hand information.
OTHER NON-CODAL EXCEPTIONS
Section 28 of Rule on Examination of a Child Witness:
Section 28. Hearsay exception in child abuse cases. - A statement
made by a child describing any act or attempted act of child
abuse, not otherwise admissible under the hearsay rule, may be
admitted in evidence in any criminal or non-criminal proceeding
subject to the following rules:
(a) Before such hearsay statement may be admitted, its proponent
shall make known to the adverse party the intention to offer such
statement and its particulars to provide him a fair opportunity to
object. If the child is available, the court shall, upon motion of the
adverse party, require the child to be present at the presentation
of the hearsay statement for cross-examination by the adverse
party. When the child is unavailable, the fact of such circumstance
must be proved by the proponent.
Atty. Espejo: Here, the act of cross examination removes the
[testimony] from the advent of hearsay.
(b) In ruling on the admissibility of such hearsay statement, the
court shall consider the time, content and circumstances thereof
which provide sufficient indicia of reliability. It shall consider the
following factors:
(1) Whether there is a motive to lie;
(2) The general character of the declarant child;
(3) Whether more than one person heard the statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the relationship
between the declarant child and witness;
(6) Cross-examination could not show the lack of
knowledge of the declarant child;
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(7) The possibility of faulty recollection of the declarant
child is remote; and
(8) The circumstances surrounding the statement are
such that there is no reason to suppose the declarant
child misrepresented the involvement of the accused.
(c) The child witness shall be considered unavailable under the
following situations:
(1) Is deceased, suffers from physical infirmity, lack of
memory, mental illness, or will be exposed to severe
psychological injury; or
(2) Is absent from the hearing and the proponent of his
statement has been unable to procure his attendance by
process or other reasonable means.
(d) When the child witness is unavailable, his hearsay testimony
shall be admitted only if corroborated by other admissible
evidence.
Section 26. Admission of a party. — The act, declaration or
omission of a party as to a relevant fact may be given in evidence
against him.
Atty. Espejo: When you make an admission to a third person, which
is a deserving admission, it is admissible. When that third person is
presented in court, what he will be testifying is what was your
admission against your interest. This is admissible.
Section 26 of Rule 130 provides that "the act, declaration or
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
admissible even if they are hearsay. (Unchuan vs. Lozada, ibid.)
RELAXATION OF THE HEARSAY EXCLUSION IN WRIT OF AMPARO
CASES
RAZON, JR. vs. TAGITIS (2009)
(Note: This is a potential BQ. It is very informative on Writ of
Amparo)
The fair and proper rule, to our mind, is to consider all the pieces
of evidence adduced in their totality, and to consider any
evidence otherwise inadmissible under our usual rules to be
admissible if it is consistent with the admissible evidence
adduced. In other words, we reduce our rules to the most basic
test of reason i.e., to the relevance of the evidence to the issue
at hand and its consistency with all other pieces of adduced
evidence. Thus, even hearsay evidence can be admitted if it
satisfies this basic minimum test.
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
custody of the police and was being interrogated. This statement
was the basis of filing of the writ of amparo. When the wife testifies
in court, her testimony of what was told by Col. Kasim is hearsay. In
fact, the information coming from Col. Kasim was also related to him
by somebody else. It is double deck hearsay already. But SC said in
this case, there is no need to be strict.
Somehow without saying, SC took judicial notice of the fact that in
cases of forced disappearances, guarded against writ of amparo, the
usual pieces of evidence is hearsay.
PRESENT SENSE IMPRESSION
LAW ON EVIDENCE
LOZANO vs. PEOPLE (2010)
A statement describing or explaining an event or condition made
while the declarant was perceiving the event or condition, or
immediately thereafter, is not barred by the rule against hearsay.
The rationale for the “present sense impression” exception is that:
1. There is no substantial danger that defects in the
declarant’s memory will affect the value of the
statement;
2. The declarant would not have had much time to
fabricate before making the statement; and
3. In many cases, the person to whom the statement was
addressed would have been in a position to check its
accuracy; hence, the declarant could speak with care.
Atty. Espejo: This is when you speak according to your present sense,
how you feel at the very moment. This is your immediate
spontaneous reaction to particular event. This somehow relates to
one of the exceptions, the res gestae exception.
For example, you say “It is cold!” when it is cold. People around you
would most likely agree. This present sense impression is admissible
because it could be easily verified.
CODAL EXCEPTIONS TO THE HEARSAY RULE
CODAL EXCEPTIONS:
1. Dying declaration
2. Declaration against interest.
3. Act or declaration about pedigree
4. Family reputation or tradition regarding pedigree
5. Common reputation
6. Part of res gestae
7. Entries in the course of business
8. Entries in official records
9. Commercial lists and the like
10. Learned treatises
11. Testimony or deposition at a former proceeding
Rule 130, Section 37. Dying declaration. — The declaration of a
dying person, made under the consciousness of an impending
death, may be received in any case wherein his death is the subject
of inquiry, as evidence of the cause and surrounding circumstances
of such death.
Other Names:
1. Ante Mortem Statement
2. Statements in Articulo Mortis
A dying declaration is one of the oldest exceptions to the hearsay
rule. In fact, as early as 1928, the Supreme Court ruled anent the
object of dying declarations that:
A dying declaration is admitted of necessity in order, as
the Supreme Court of Mississippi states, "to reach those
man slayers who perpetrate their crimes when there are
no other eyewitnesses." (People vs. Toledo, 1928)
Atty. Espejo: Note that a dying man (and who subsequently died)
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
declaration. It fulfills none of the requisites except that it was made
under the consciousness of an impending death.
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The Fugitive (A Movie)
One popular example of a dying declaration was in the movie “The
Fugitive”. Dr. Richard Kimble (Harrison Ford), a successful vascular
surgeon in Chicago, came home one night to find his wife Helen
fatally wounded by a man with a prosthetic arm, and though he
attempted to subdue the killer, the man escaped.
Before the wife died while she was being attacked, she managed
to contact 911. While on the line, she saw her husband (Ford)
arriving home and all she could say was “Richard. Richard.” Then,
she died.
The lack of evidence of a break-in, fingerprints being found on the
gun and the bullets, and Helen’s misunderstood 911 call led the
Chicago Police Department to charge Kimble with murder, and he
is sentenced to death by lethal injection.
REASONS FOR ADMISSIBILITY
PEOPLE vs. BAUTISTA
G.R. No. 111149 September 5, 1997
There are two (2) obvious reasons for the admissibility of a dying
declaration: (a) NECESSITY and (b) TRUSTWORTHINESS.
Necessity, because the declarants death renders impossible his
taking the witness stand. And trustworthiness, since the
declaration is made in extremity, when the party is at the point of
death and every hope of this world is gone; when every motive to
falsehood is silenced, and the mind is induced by the most
powerful consideration to speak the truth. A situation so solemn
and awful is considered by the law as creating an obligation equal
to that which is imposed by an oath administered in court
TRUSTWORTHINESS
MARTURILLAS vs. PEOPLE
G.R. No. 163217April 18, 2006
FACTS: Lito Santoswas eating supper in their kitchen when he
heard a gunshot. From a distance of about ten (10) meters, he
also noticed smoke and fire coming from the muzzle of a big gun.
Moments later, he saw his neighbor Artemio (the victim) clasping
his chest and staggering backwards to the direction of his (Lito’s)
kitchen. Artemio shouted to him, ‘Tabangiko Pre, gipusil ko ni
kapitan.’ (Help me, Pre, I was shot by the captain.)
Shortly, Lito saw Ernita Pantinople, the wife of Artemio, coming
from her house towards the direction where Artemio was
sprawled on the ground. Ernita was hysterical, jumping and
shouting, ‘Kapitan, ngano nimo gipatay ang akong bana!’
HELD: Statements identifying the assailant, if uttered by a victim
on the verge of death, are entitled to the highest degree of
credence and respect. Persons aware of an impending death have
been known to be genuinely truthful in their words and extremely
scrupulous in their accusations. The dying declaration is given
credence, on the premise that no one who knows of one’s
impending death will make a careless and false accusation.
PEOPLE vs. PALANAS
G.R. No. 214453 June 17, 2015
This declaration is considered evidence of the highest order and is
LAW ON EVIDENCE
entitled to utmost credence since no person aware of his
impending death would make a careless and false accusation.
Verily, because the declaration was made in extremity, when the
party is at the point of death and when every motive of falsehood
is silenced and the mind is induced by the most powerful
considerations to speak the truth, the law deems this as a
situation so solemn and awful as creating an obligation equal to
that which is imposed by an oath administered in court.
REQUISITES (Bar 1998) – Memorize!
PEOPLE vs. PALANAS
For a dying declaration to constitute an exception to the hearsay
evidence rule, four (4) conditions must concur:
(a) the declaration must concern the cause and surrounding
circumstances of the declarant’s death;
(b) that at the time the declaration was made, the declarant
is conscious of his impending death;
(c) the declarant was competent as a witness (if he
survived); and
(d) the declaration is offered in a criminal case for
Homicide, Murder, or Parricide where the declarant is
the victim.
Requisite #1: Declaration concerns the cause and surrounding
circumstances of the declarant’s death
Example: X, the husband, was shot while Y, the wife, was stabbed.
At the emergency room of the hospital, X said that it was Z who
stabbed his wife. Then, he died.
Q: Can this qualify as a dying declaration?
A: NO. The statement is not a dying declaration because it pertains
to the cause and surrounding circumstances of the wife’s death and
not of the declarant’s OWN death.
More often than not, the requisite relates to the inquiry of who
killed the declarant but it does not preclude information as to the
motive and other conditions that attended the killing of the
declarant.
(Example: When the victim, after being attacked uttered “A red car!”
before he died, it could be a vital information on surrounding
circumstance of his case.)
This also means that a dying declaration may be used not only
against the Accused but also in his favour:
nd
The Case of John Adams, 2 President of U.S.A.: The Boston
Massacre
In 1770, a street confrontation, known as the Boston Massacre,
resulted in British soldiers killing five civilians. The accused soldiers
were arrested on criminal charges. One of the victims, Patrick
Carr, told his doctor before he died that the soldiers had been
provoked. The doctor’s testimony helped John Adams to secure
acquittals for some of the accused and reduced charges for the
rest.
It may thus be used as proof of a justifying circumstance or as
proof that another person committed the killing other than the
accused.
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Requisite #2: When the declaration was made, the declarant is
conscious of his impending death
What factors should be considered in determining whether the
declarant is conscious of his impending death?
1. Utterances;
2. Actual character and seriousness of his wounds; and
3. By the declarant’s conduct and the circumstances at the
time he made the declaration, whether he expected to
survive his injury.
On No. 2: Actual character and seriousness of the wounds:
PEOPLE vs. VILLARIEZ
G.R. No. 211160 September 2, 2015
FACTS:At the brink of death and with a voice she could hardly
hear, her father uttered the name “Toti.”
HELD: This is a DYING DECLARATION. Although he made no
express statement showing that he was conscious of his
impending death, it was clear however, considering the fatal
quality of his injury and that he was barely heard by Ana when he
uttered accused-appellant's name, that his death was imminent.
On No. 3: Conduct and the circumstances at the time the declaration
was made:
Gerald was shot but he can still walk and talk. He went home to his
house, cleaned up his own wounds and went out to go to the
hospital. Along the way, he rode a taxi. The driver was a childhood
friend, Matteo who asked him what happened to him. He answered
that Luis shot him but that he was okay. It was only a flesh wound.
At the hospital, Gerald died after a couple of hours.
Q: Is the statement of Gerald to Matteo a dying declaration?
A: NO, because he made the statement without having thought that
he is already dying. He made the statement thinking that it was a
flesh wound and the he would survive it. In order to be admissible,
the declarant must have thought that he was about to die because it
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
every motive to falsehood is silenced, and the mind is induced by
the most powerful consideration to speak the truth” that makes the
declaration trustworthy.
MARTURILLAS vs. PEOPLE
Consciousness of an impending death need to be explicitly stated
but may be established by circumstantial evidence.
The law does not require the declarant to state explicitly a
perception of the inevitability of death. The perception may be
established from surrounding circumstances, such as the nature of
the declarant’s injury and conduct that would justify a conclusion
that there was a consciousness of impending death. Even if the
declarant did not make an explicit statement of that realization,
the degree and seriousness of the words and the fact that death
occurred shortly afterwards may be considered as sufficient
evidence that the declaration was made by the victim with full
consciousness of being in a dying condition.
DOCTRINES TO REMEMBER:
#1
PEOPLE vs. TANAMAN
LAW ON EVIDENCE
G.R. No. 71768 July 28, 1987
 The victim need not state that he has lost all hope of
recovery. It is sufficient that circumstances are such as to
inevitably lead to the conclusion that at the time the
declaration was made, the declarant would not expect to
survive the injury from which he actually died.
 The degree and seriousness of the wounds and the fact that
death supervened thereafter constitute substantial evidence
of the victim's consciousness of his impending death.
#2
Dying declaration has weight even if declarant did not die
immediately after his declaration: The fact that the declarant died 4
hours after his statement does not diminish the probative value of
the dying declaration since it is not indispensable that the declarant
expires immediately thereafter.
#3
PEOPLE vs. BAUTISTA
It is the belief in impending death and not the rapid succession of
death, in point of fact, that renders the dying declaration
admissible.
#4
PEOPLE vs. RARUGAL alias “AMAY BISAYA”
G.R. No. 188603 January 16, 2013
FACTS: On the night of October 19, 1998, at around 9:45 p.m.,
while victim ArnelFlorendo (Florendo) was cycling along
Sampaguita St., Brgy. Capari, Novaliches, Quezon City, Rarugal,
with the use of a long double-bladed weapon, stabbed Florendo;
thus, forcibly depriving him of his bicycle. Immediately thereafter,
appellant hurriedly fled the scene. This incident was witnessed by
Roberto Sit-Jar, who positively identified appellant in court.
Florendo arrived home bleeding. He was quickly attended to by
his siblings, including his brother Renato. When Renato recounted
the events of that night to the court, he testified that Florendo
told him and his other relatives that it was Rarugal who had
stabbed him. They then took Florendo to Tordesillas Hospital but
had to transfer him to Quezon City General Hospital, due to the
unavailability of blood. It was there that Florendo diedon October
26, 1998.
NOTE:
1. The victim was still alive after the stabbing incident. He
had time to reach his house and confide in his brother,
witness Renato, that it was appellant who had stabbed
him.
2. The victim also did not die immediately.
3. He was stabbed on Oct. 19 and died on Oct. 26
ISSUE: Is it a dying declaration?
HELD: It is of no moment that the victim died seven days from the
stabbing incident and after receiving adequate care and
treatment, because the apparent proximate cause of his death,
the punctures in his lungs, was a consequence of Rarugal’s
stabbing him in the chest.
Requisite #3: The declarant was competent as a witness
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This means that, had the declarant survived, he would have not have
been disqualified or otherwise prohibited to testify.
Thus, the utterance of the deceased must have been one borne of
personal knowledge.
GERALDO vs. PEOPLE
G.R. No. 173608 November 20, 2008
COMPETENCE OF A WITNESS MEANS HE HAD THE OPPORTUNITY
TO SEE ASSAILANT.
It has not been established, however, that the victim would have
been competent to testify had he survived the attack. There is no
showing that he had the opportunity to see his assailant. Among
other things, there is no indication whether he was shot in front.
At all events, even if the victim’s dying declaration were
admissible in evidence, it must identify the assailant with
certainty; otherwise it loses its significance.
Compare with:
PEOPLE vs. VILLARIEZ
The victim made a dying declaration about the person who shot
him. The accused was convicted based on this and the SC affirmed
and appreciated the qualifying circumstance of treachery. It found
that the victim was shot at the back.
Atty. Espejo: Though there is a direct contrast between the ruling
cases of Geraldo vs. People and People vs. Villariez, the difference
here is factual. In Villariez (though the victim was also shot at the
back like in Geraldo), it did not say anything on whether the victim
saw the attacker.
Requisite #4: Offered in a Criminal Case for Homicide, Murder, or
Parricide where the declarant is the victim.
Compare this requisite with what is stated in the codal provision:
“in any case wherein his death is the subject of inquiry”
Atty. Espejo: The provision states that “in any case”. Could this mean
that the dying declaration may be used in civil cases as well?
A: No. On Art.2176 on quasi-delict for example. When a car
accidentally crashed to a pedestrian who eventually died, a dying
declaration of the victim could not be used. The death here is not the
subject of inquiry in a quasi-delict case. The fact in issue in a quasi-
delict case is the fault or negligence.
Though the provision states “in any case”, the SC has clarified
(through jurisprudence) that dying declaration may only be used in a
Criminal Case for Homicide, Murder, or Parricide.
THE DECLARANT MUST HAVE NOT SURVIVED
The requirement of the Rules is that the statement is offered in a
case where the declarant’s death is the subject of inquiry. This
means actual death and does not apply to cases of mere
unavailability such as when the patient is in a comatose condition or
merely “brain” dead. There is no dying declaration in cases of
homicide or murder in their attempted or frustrated stage.
Query: Does the requirement of death include presumptive death?
LAW ON EVIDENCE
Anent this issue, two questions must be asked:
First: Can the prosecution for unlawful killing be made without the
victim being found?
A: Yes
PEOPLE vs. ROLUNA
G.R. No. 101797 March 24, 1994
In the early case of People v. Sasota, the Court affirmed the
conviction of the accused for murder although the body of the
victim was not found or recovered. In said case, we ruled that in
case of murder or homicide, it is not necessary to recover the
body of the victim or show where it can be found. It is enough that
the death and the criminal agency causing death is proven. The
Court recognized that there are cases where the death and
intervention of the criminal agency that caused it may be
presumed or established by circumstantial evidence.
Second: Can there be a situation where a dying declaration can be
made in circumstances where there is presumptive death?
(Note: The scenario below must have been a product of the creative
mind of Sir. This example is for your consideration.)
Mokong, Gerald and Tumulmol crash-landed in a deserted island.
Before they were actually rescued, Mokongsaw Gerald clutching
his stomach and saw that he appeared to be stabbed several
times. He then asked Gerald what happened and Gerald said that
Tamulmol stabbed him repeatedly with a jungle knife. As he was
saying this, a boat appeared at the horizon. Hoping for rescue,
Gerald swam towards the direction of the boat. A few moments
later, Gerald disappeared at the deeper part of the sea and was
never found again. After 4 years, Tamulmol was prosecuted for
murder.
Q: Can the statement made by Gerald to Mokong prior to his
disappearance be considered Gerald’s dying declaration?
A: Yes. It has satisfied all of the four requisites. (see Palanas case
for the requisites)
Q: What is the effect if the victim survives?
A: If the victim survives but is unable to testify, the declaration can
no longer be considered a dying declaration. However, the
declaration may still be admitted as part of the res gestae.
PEOPLE vs. SONNY GATARIN
G.R. No. 198022 April 7, 2014
FACTS: On the 3rd day of November 2004, at 8:00 o’clock in the
evening, Umali was riding a bicycle on his way home when he saw
Januario being mauled by two persons opposite Dom’s Studio in
PoblacionMabini, Batangas. Upon seeing the incident, he stayed in
front of the church until such time that the accused ran away and
were chased by policemen who alighted from the police patrol
vehicle.
On the same night, SPO3 Mendoza and PO1 Jeffrey Jefferson
Coronel were on board their patrol vehicle performing their
routine patrol duty when they met two men, later identified as
the accused, who were running at a fast speed. When asked why
they were running, the accused did not answer prompting the
policemen to chase them.
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The policemen, however, were unsuccessful in catching them and
when it became evident that they could no longer find them, they
continued patrolling the area. There they saw Januario lying on
the street in front of Dom’s studio. As he was severely injured, the
policemen immediately boarded Januario to the patrol vehicle and
brought him to the Zigzag Hospital. While inside the vehicle, SPO3
Mendoza asked Januario who hurt him. He answered that it was
"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-
large.
At the Zigzag Hospital, Januario was attended to by Dr. Rasa who
found him in critical condition. Three fatal wounds caused by a
bladed weapon were found in Januario’s body which eventually
caused his death.
Maria Castillo, for her part, testified on how she learned of what
happened to her husband, the victim herein, the amount allegedly
stolen from her husband, as well as on the expenses and loss
incurred by reason of Januario’s death. She, further, quantified
the sorrow and anxiety the family suffered by reason of such
death.
As to the identity of the perpetrators, the court considered the
victim’s response to SPO3 Mendoza’s question as to who
committed the crime against him as part of the res gestae, which
is an exception to the hearsay rule.As to appellant’s defense of
alibi, the court gave more weight to the prosecution’s rebuttal
evidence that indeed the former was an actual resident of Mabini,
Batangas.
On appeal, the CA affirmed the RTC decision. Contrary, however,
to the RTC’s conclusion, the appellate court considered Januario’s
statement to SPO3 Mendoza, that the accused were the ones who
stabbed him and took his wallet, not only as part of res gestae but
also as a dying declaration.
ISSUE: WON there is a Dying Declaration
HELD: Not all the requisites of a dying declaration are present.
From the records, no questions relative to the second requisite
was propounded to Januario. It does not appear that the declarant
was under the consciousness of his impending death when he
made the statements. The rule is that, in order to make a dying
declaration admissible, a fixed belief in inevitable and imminent
death must be entered by the declarant. It is the belief in
impending death and not the rapid succession of death in point of
fact that renders a dying declaration admissible. The test is
whether the declarant has abandoned all hopes of survival and
looked on death as certainly impending. Thus, the utterances
made by Januario could not be considered as a dying declaration.
However, even if Januario’s utterances could not be appreciated
as a dying declaration, his statements may still be appreciated as
part of the res gestae. Res gestae refers to the circumstances,
facts, and declarations that grow out of the main fact and serve to
illustrate its character and are so spontaneous and
contemporaneous with the main fact as to exclude the idea of
deliberation and fabrication. The test of admissibility of evidence
as a part of the res gestae is, therefore, whether the act,
declaration, or exclamation, is so interwoven or connected with
the principal fact or event that it characterizes as to be regarded
as a part of the transaction itself, and also whether it clearly
negates any premeditation or purpose to manufacture testimony.
LAW ON EVIDENCE
Atty. Espejo: One thing you need to take away from this case is that
if you are for the prosecution (having known the elements of a dying
declaration) there has to be positive testimony on all the requisites.
FORM OF DYING DECLARATIONS
PEOPLE vs. BOLLER
G.R. No. 144222-24 April 3, 2002
A dying declaration may be oral or written. If oral, the witness
who heard it may testify thereto without the necessity of
reproducing the word of the decedent, if he is able to give the
substance thereof. An unsigned dying declaration may be used as
a memorandum by the witness who took it down.
PEOPLE vs. COMILING
G.R. No. 140405 March 4, 2004
The dying declaration was made with the police investigators
writing down the statement and thumbmarked later by the
deceased when he was still alive.
It may be in the form of an affidavit for as long as the requisites are
present.
BUT:
PEOPLE vs. PADRONES
G.R. No. 85823 September 13, 1990
The victim's alleged ante-mortem statement is not in fact, an
ante-mortem statement. It was executed on August 13, 1986,
when the deceased died on August 21, 1986.
It bears to stress that a mere cursory examination of the three
signatures appearing on the three-page statement, in bold and
clear strokes with two of them occupying four inches of the page,
and in grand flourishes, pronounced and considered by the trial
judge as a dying declaration, precludes any indication that the
signer thereof was under an impending death. Further, if the
deceased were truly on the point of death, he could not have had
the strength to affix three signatures as above described.
Atty. Espejo: In this case, the statement was actually a three-page
statement. The SC also said that the declarant signed it in bold
strokes which would belie the seriousness of his wounds. Therefore,
it could not have been made under the consciousness of an
impending death. It is inadmissible as a dying declaration.
CAN NON-VERBAL ACTS BE USED AS DYING DECLARATIONS?
Example: While Gerald was lying in a pool of his own blood and
dying, he pointed with a very angry face at one of the bystanders,
Matteo.
A: Not a dying declaration. It violates the DOCTRINE OF
COMPLETENESS. A dying declaration is complete when it is a full
expression of all that the declarant wanted to say with regard to the
circumstances of his death. (People vs. Comiling)
PEOPLE vs. DE JOYA
G.R. No. 75028 November 8, 1991
It has been held that a dying declaration to be admissible must be
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complete in itself. To be complete in itself does not mean that the
declarant must recite everything that constituted the res gestae of
the subject of his statement, but that his statement of any given
fact should be a full expression of all that he intended to say as
conveying his meaning in respect of such fact.
ADMISSIBILITY IS DIFFERENT FROM WEIGHT
What the law merely assures is admissibility. There is no assurance
that the dying declaration is automatically believed. If it is
controverted by other competent evidence, the dying declaration
may be set aside.
Take note that admissibility is different from believability.
CRITICISM OF THE RULE
“Physical or mental weakness consequent upon the approach of
death, a desire of self-vindication, or a disposition to impute the
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
response to leading questions and direct suggestions, and with no
opportunity for cross-examination: all these considerations conspire
to render such declarations a dangerous kind of evidence.”
 Orenstein, Aviva (2010). “Her Last Words: Dying
Declarations and Modern Confrontation Jurisprudenct”.
University of Illinois Law Review
A DEATHBED CONFESSION IS NOT A DYING DECLARATION
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
settlement of his estate, Jessy appeared in court to assert the rights
of her child with Luis and wanted to present Rayver to testify as to
Luis’ admission of paternity. Can the legitimate children of Luis
object to the admissibility of Rayver’s testimony?
A: Yes. The ground for objection is that the testimony is hearsay.
Example 2: Luis, at his death bed, confessed to Jessy’s daughter,
Lucy that he is her father and wanted to give her P 3 Million so that
she can finish law school and take the bar. He died 2 seconds later.
During the settlement of his estate, Lucy appeared in court and
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
of Lucy’s testimony?
A: Yes. The grounds for objection are:
1. The testimony is hearsay
2. Deadman’s Statute:
“Section 23.Disqualification by reason of death or insanity
of adverse party. — Parties or assignor of parties to a case,
or persons in whose behalf a case is prosecuted, against an
executor or administrator or other representative of a
deceased person, or against a person of unsound mind,
upon a claim or demand against the estate of such
deceased person or against such person of unsound mind,
cannot testify as to any matter of fact occurring before the
death of such deceased person or before such person
became of unsound mind.”
Note: There is already a claim on the deceased’s estate.
Hence, deadman statute applies.
LAW ON EVIDENCE
Example 3: Luis, at his death bed, confessed to his daughter, Lucy,
that he killed Matteo, not Gerald who currently stands trial for
Matteo’s murder. Luis died 2 seconds later. During the trial of
Matteo he wanted to present Lucy to testify as to the deathbed
confession of Luis. Can the prosecution object?
A: Yes. The ground for the objection is that testimony is hearsay.
But would the court now overrule on sustaining the conviction? That
a hearsay evidence would now be used to acquit an accused? Is
there a specific rule in Philippine law about deathbed confessions?
 In England, in R. vs. Gray (1841) Ir. Circ. Rep. 76, a death
bed confession by a third person that he, not the accused,
had committed the murder charged was held admissible.
 In the US, however, under Rule 804 of the Federal Rules, a
deathbed confession can be admissible in court under the
right circumstances. If someone confesses knowledge of a
crime and then dies or his condition worsens, the law does
not consider the statement to be hearsay and can be used
in criminal trial.
Example:
James Brewer Case
James Brewer was suffering from stroke and thought he was going
to die when he decided to come clean about his life. In 1977,
James, in his jealous rage, killed his neighbour, skipped bail, and
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
group. He confessed this in 2009 to the police on his deathbed.
Subsequently, he recovered. When he was already fit to stand
trial, he was prosecuted. He was later found guilty of murder and
was sentenced to the death penalty.
Going back to Example 3:
Q: What is the ground for objection?
A: That the testimony is hearsay.
Q: Should the court overrule or sustatin the objection?
A: Overrule. There is a rule that can be used to justify departing
from the hearsay rule and that is DECLARATION AGAINST INTEREST:
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
declaration was at the time it was made so far contrary to
declarant's own interest, that a reasonable man in his position
would not have made the declaration unless he believed it to be
true, may be received in evidence against himself or his successors
in interest and against third persons.
FUENTES, JR. vs. CA
G.R. No. 111692 February 9, 1996
[On Sec. 38 of Rule 130] The admissibility in evidence of such
declaration is grounded on necessity and trustworthiness.
There are three (3) essential requisites for the admissibility of a
declaration against interest:
(a) the declarant must not be available to testify;
(b) the declaration must concern a fact cognizable by the
declarant; and
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(c) the circumstances must render it improbable that a
motive to falsify existed.
Atty. Espejo: On example 3, apply the above requisites. Luis is
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
not motive to falsify in court since he was about to die.
Q: Bangs was charged with crime of kidnapping of Adonis, her
husband. One of the testimonies presented by the prosecution was
that of Maja who testified that Adonis confided to her that he and
Sarah were having an affair. Undoubtedly, Adonis’ infidelity was
ample reason for Bangs to contemplate revenge. Consequently, the
trial court convicted Bangs based on the testimonies of the
witnesses. Was the testimony of Maja admissible as evidence?
A: Yes.Adonis’ revelation to Maja regarding his illicit relationship
with Sarah is admissible in evidence pursuant to Section 38, Rule
130. Declaration against interest includes all kinds of interest, that is,
pecuniary, proprietary, moral or even penal.
Adonis, having been missing since his abduction, cannot be called
upon to testify. His confession to Maja, definitely a declaration
against his own interest, since his affair with Sarah was a crime, is
admissible in evidence because no sane person will be presumed to
tell a falsehood to his own detriment. (People vs. Bernal, G.R. No.
113685June 19, 1997)
Distinguish Admission against Interest from Declaration against
Interest:
LAZARO, ET. AL. vs. MODESTA AGUSTIN
G.R. No. 152364April 15, 2010
(Probable BQ)
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
party, and are admissible whether or not the declarant is available
as a witness.
Declarations against interest are those made by a person who is
neither a party nor in privity with a party to the suit, are secondary
evidence, and constitute an exception to the hearsay rule. They are
admissible only when the declarant is unavailable as a witness.
September 16, 2016
Recap
We discussed already declaration against interest. What you need to
take note there are the requisites. Again, the reason why you make
a declaration against interest, an exception to the hearsay, rule is
simple. The rationale is necessity and trustworthiness.
HEARSAY and EXCEPTIONS CONTINUED
Declaration against interest
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
declaration was at the time it was made so far contrary to
declarant's own interest, that a reasonable man in his position
would not have made the declaration unless he believed it to be
LAW ON EVIDENCE
true, may be received in evidence against himself or his successors
in interest and against third persons.
JZE: It is necessary because the person is already dead. He is no
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
position will not make a declaration that is contrary to his interest
had not the same be true. And under the circumstances he was
compelled to say it. It is simple as that.
Take note of the case of Fuentes vs. CA. We already discussed that
last meeting.
FUENTES, JR. vs. CA (1996)
The admissibility in evidence of such declaration is grounded on
necessity and trustworthiness.
There are three (3) essential requisites for the admissibility of a
declaration against interest:
(a) the declarant must not be available to testify;
(b) the declaration must concern a fact cognizable by the
declarant; and
(c) the circumstances must render it improbable that a motive to
falsify existed.
Let me just explain this example that we skipped last meeting.
Example: Bangs was charged with the crime of kidnapping Rrrramon,
her husband. One of the testimonies presented by the prosecution
was that of Maja who testified that Rrramon confided to her that he
and Sarah were having an affair. Undoubtedly, Rrramon’s infidelity
was ample reason for Bangs to contemplate revenge. Consequently,
the trial court convicted Bangs based on the testimonies of the
witnesses. Was the testimony of Maja admissible as evidence?
Yes. (Now remember that the declarant here is Rrramon. That
declaration was used as evidence.) Rrramon’s revelation to Maja
regarding his illicit relationship with Sarah is admissible in evidence,
pursuant to Section 38, Rule 130 of the Revised Rules on Evidence.
Declaration against interest includes all kinds of interest, that is,
pecuniary, proprietary, moral or even penal. Rrramon, having been
missing since his abduction, cannot be called upon to testify. His
confession to Maja, definitely a declaration against his own interest,
since his affair with Sarah was a crime, is admissible in evidence
because no sane person will be presumed to tell a falsehood to his
own detriment. (People v. Bernal, G.R. No. 113685, June 19, 1997)
This is very important and I am going to emphasize this once again.
Distinguishing Admission against Interest from Declaration against
Interest
LAZARO, ET.AL. vs. MODESTA AGUSTIN (2010)
(Definitive case as to Section 38)
Admissions against interest Declarations against
are those made by a party to a interest are those made by a
litigation or by one in privity person who is neither a
with or identified in legal party nor in privity with a
interest with such party, and party to the suit, are
are admissible whether or not secondary evidence and
the declarant is available as a constitute an exception to
witness. the hearsay rule. They are
admissible only when the
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declarant is unavailable as a
witness.
Act or Declaration about pedigree
Rule 130, Section 39. Act or declaration about pedigree. — The act
or declaration of a person deceased, or unable to testify, in respect
to the pedigree of another person related to him by birth or
marriage, may be received in evidence where it occurred before the
controversy, and the relationship between the two persons is
shown by evidence other than such act or declaration. The word
"pedigree" includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these fast occurred,
and the names of the relatives. It embraces also facts of family
history intimately connected with pedigree.
JZE: Diba, during the semester, one of the first questions I asked you
was, “when was your birthday?” Do you know exactly when was
your birthday? Kinsa ganin tong akong gipangutana? Ikaw to?
(Pointing to Ms. Queenie R.) Kabalo na ka? What I’m trying to point
out here is the fact that, technically speaking, your knowledge of
when you were born is actually hearsay because remember that
information is NOT hearsay only when it is based on your own
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
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
mother. Wala kay perception ana.
So, your information about your birth definitely comes from
someone else who told you that your birthday is on this day. What
reinforces that is the fact that many of us or at least 90% of us really
have families who celebrate our birthdays. That is the basis of what I
have been telling you: that you have no personal knowledge of your
birthday.
But because clearly, it’s something that relates to your pedigree
because pedigree relates to birth, or includes birth, then it becomes
an exception to the hearsay rule. More often than not, it will be
accepted as true even if it is secondhand information.
REQUISITES UNDER SECTION 39
(1) The actor or declarant is dead and unable to testify.
(2) The act or declaration is made by a person related to the
subject by birth or marriage. (consanguinity or affinity)
(3) the relationship between the declarant or the actor and the
subject is shown by evidence other than such act or declaration
Ex. Kanang the declarant said na iya nang paryente si X.
That would now be the basis for X in claiming the
relationship.
Now, in a case where the relationship between X and the
declarant, and the declarant’s family is in issue, let’s say
for example paternity suits or suits of filiation, would that
declaration by itself be sufficient to prove the fact in issue?
No. There must be corroborative evidence or evidence
aliunde to prove such a relationship.
(4) The act or declaration was made ANTE LITEM MOTAM (prior to
the controversy; cannot be ‘during’ and cannot be in anticipation of
litigation/ you are not planting the evidence)
LAW ON EVIDENCE
Genealogy
A line of descent traced continuously from an ancestor.
Simply, lineage. (Do you remember the lolo sa imong lolo?
Story about great grand father.)
In the olden times, people really keep track of family
lineage and write them down in family heirlooms. (It’s a
big thing.) However, nowadays, what we know of our
lineage comes specifically from mere oral traditions.
Birth
Recall that you do not really have personal knowledge of
your birthday. Whatever you know about this was merely
told to you, making it hearsay.
Revisiting an example
Luis, at his death bed, confessed to Rayver that he is the father of
Jessy’s child. He died 2 seconds later. During the settlement of his
estate, Jessy appeared in court to assert the rights of her child with
Luis and wanted to present Rayver to testify as to Luis’ admission of
paternity. Can the legitimate children of Luis object to the
admissibility of Rayver’s testimony?
Q: What’s the ground for objection?
A: THAT THE TESTIMONY IS HEARSAY
Q: Should the court sustain the objection?
It’s now time to apply Section 39.
A: YES, if Jessy cannot present evidence other than the act
or declaration of Luis that he is the father of her child. (You
need evidence aliunde. It has to be proven or corroborated
by evidence other than the act or declaration itself.)
Q: WHAT SHOULD JESSY’S COUNSEL DO?
A: Counsel can ask to have the testimony of Rayver regarding Luis’
statement conditionally admitted. (Right now, you cannot admit the
corroboration. You’re presenting the witness right now. You cannot
corroborate it with evidence assuming that person is your first
witness. So you ask the court that it be conditionally admitted.
Recall:
CONDITIONAL ADMISSIBILITY – evidence is admissible only
in dependence upon other facts. It is received on the
express assurance of counsel, when objection is
manifested, that other facts will be duly presented at a
suitable opportunity before the case is closed.
So, conditionally, the testimony will be admitted subject to the
condition that counsel or the party admitting such
supposedly admissible evidence will make a condition to
other admissible evidence. So i-corroborate gyud niya. He
has to present other evidence, i.e. documentary evidence
proving the pedigree
Suppose the court conditionally admits the testimony…
But Jessy is unable to present corroborative evidence, what
is the remedy of her opponents?
A: They can move to strike the testimony on the ground
that the condition for admitting the hearsay evidence was
not fulfilled.
Remember this principle of conditional admissibility.
Now here’s an interesting case.
NEPOMUCENO vs. LOPEX (2010)
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FACTS: Born on June 8, 1999, Arhbencel claimed to have been
begotten out of an extramarital affair of petitioner with Araceli;
that petitioner refused to affix his signature on her Certificate of
Birth; and that, by a handwritten note dated August 7, 1999,
petitioner nevertheless obligated himself to give her financial
th th
support in the amount of P1,500.00 on the 15 and 30 days of
each month beginning August 15, 1999.
Q: Was the pedigree of Archbencel sufficiently established?
A: First, the SC summarized the rules as follows:
1. In Pe Lim v. CA, a case petitioner often cites, we stated
that the issue of paternity still has to be resolved by such
conventional evidence as the relevant incriminating
verbal and written acts by the putative father.
2. Under Article 278 of the New Civil Code, voluntary
recognition by a parent shall be made in the record of
birth, a will, a statement before a court of record, or in
any authentic writing. To be effective, the claim of
filiation must be made by the putative father himself and
the writing must be the writing of the putative father. A
notarial agreement to support a child whose filiation is
admitted by the putative father was considered
acceptable evidence. (Because he signed it clearly)
3. Letters to the mother vowing to be a good father to the
child and pictures of the putative father cuddling the
child on various occasions, together with the certificate
of live birth, proved filiation.
4. A student permanent record, a written consent to a
father’s operation, or a marriage contract where the
putative father gave consent, CANNOT be taken as
authentic writing. Standing alone, neither a certificate of
baptism nor family pictures are sufficient to establish
filiation. (But we are talking about filiation here. Filiation
is not necessarily pedigree. You need to make that
distinction.)
The Handwritten note:
“I, Ben-Hur C. Nepomuceno, hereby undertake to give
and provide financial support in the amount of P1, 500.00 every
fifteenth and thirtieth day of each month for a total of P3,000.00 a
month starting Aug.15, 1999, to Arhbencel Ann Lopez, presently in
the custody of her mother Araceli Lopez without the necessity of
demand, subject to the adjustment later depending on the needs of
the child and my income.”
Q: Is that an act or declaration about pedigree? Will that be
sufficient to establish the filiation of the child claiming support?
Does the note indicated anywhere therein that he is admitting to
his parenthood toward the child? What he concedes is that he is
going to provide financial support depending on the needs of “the
child” (not my child) and “my income.” Clearly advised by lawyer.
haha
HELD: The above quoted note does not contain any statement
whatsoever about Arhbencel’s filiation to petitioner. It is,
therefore, not within the ambit of Article 172 (2) vis-à-vis Article
175 of the Family Code which admits as competent evidence of
illegitimate filiation an admission of filiation in a private
handwritten instrument signed by the parent concerned.
The note cannot also be accorded the same weight as the notarial
agreement to support the child referred to in Herrera v. Alba. For it
is not even notarized. And Herrera instructs that the notarial
agreement must be accompanied by the putative father’s
LAW ON EVIDENCE
admission of filiation to be an acceptable evidence of filiation.
Here, however, not only has petitioner not admitted filiation
through contemporaneous actions. He has consistently denied it.
The only other documentary evidence submitted by Arhbencel, a
copy of her Certificate of Birth, has no probative value to establish
filiation to the petitioner, the latter not having signed the same.
Family Reputation or Tradition Regarding Pedigree
Rule 130, Section 40. Family reputation or tradition regarding
pedigree. — The reputation or tradition existing in a family
previous to the controversy, in respect to the pedigree of any one of
its members, may be received in evidence if the witness testifying
thereon be also a member of the family, either by consanguinity or
affinity. Entries in family bibles or other family books or charts,
engravings on rings, family portraits and the like, may be received
as evidence of pedigree.
One of the things you will have to notice here immediately is: “who’s
testifying?” The witness must necessarily be a member of the family.
But in Section 39, what did you notice? Anybody can be the witness
there provided that the declarant is the one who is related to the
subject of pedigree; kadtung nagaclaim ug relationship. That’s the
main difference between Section 39 and 40.
REQUISITES UNDER SECTION 40
1. There is controversy in respect to the pedigree of any member
of the family;
2. The reputation or tradition of the pedigree of the person
concerned existed previous to the controversy (something that
did not just come up because a case was filed; must exist ante
litem motam and not in anticipation of litigation. Kaniadto pa
lang, wala pay kaso, naa nay nagclaim na related na siya sa akoa
o sa pamilya.); and
3. The witness testifying to the reputation or tradition regarding
pedigree of the person concerned MUST BE A MEMBER of the
family of said person either by consanguinity or affinity.
TWO PARTS
1. Testimony Evidence of Pedigree (testimony of a family member
based on the reputation existing within the family about the
pedigree of a person under consideration. He may not be
testifying based on personal knowledge but this is the
reputation existing in the family. It is a statement of the family’s
belief as to the pedigree of a person.)
2. Documentary or Object Evidence of Pedigree (entries in family
Bibles or other family books or charts, engravings on rings,
family portraits and the like)
Testimony
Recall the case of People vs. Pruna (Rules on how to prove the age of
a victim in the case of rape for example) and read the case of
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.
If the certificate of live birth or authentic document is shown to have
been lost or destroyed or otherwise unavailable, the testimony, if
clear and credible, of the victim’s mother or a member of the family
either by affinity or consanguinity who is qualified to testify on
matters respecting pedigree such as the exact age or date of birth of
the offended party pursuant to Section 40, Rule 130 of the Rules on
Evidence shall be sufficient under the following circumstance:
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a. If the victim is alleged to be below 3 years of age and what is
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
sought to be proved is that she is less than 12 years old;
c. If the victim is alleged to be below 12 years of age and what is
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
testimony of the victim’s mother or relatives concerning the
victim’s age, the complainant’s testimony will suffice provided
that it is expressly and clearly admitted by the accused.
Family Bibles
Not every bible belonging to a family, even if handed down from
generation to generation, can be considered as proof of pedigree
under Section 40.
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
presumption that a family will not put an entry there unless they
have personal knowledge of what happened. Kahibalo gyud sila nga
kani siya natawo sa kani nga pamilya ining adlawa. So isuwat na nila.
It’s a statement of their belief regarding the pedigree of the person.
And then it’s handed down from generation to generation, which
means that everybody who followed will of course have that belief
that their ancestor was born on a particular date and that they are
related to that ancestor.
(Pictures of samples shown i.e. family charts/family trees of Black
and Padilla Families, engravings on rings, family portraits)
JZE: So, somebody can bring the ring and testify to what it says; that
Rrramon and Lailanie were married at a certain time. That can prove
their marriage.
You can use family portrait to be part of the family tradition or
reputation regarding pedigree.
DOCUMENTARY/OBJECT EVIDENCE
Kini ang daghan. In one case, what they presented to prove the
filiation of a person would be letters of introduction to relatives. It
was custom before that when you are travelling let’s say to Manila,
gikan ka ug probinsya, magsuwat ang imong relative, “Kaning
tawhana, kini siya ako ni siyang pag-umangkon, anak ni Procopio.
Unta imo ni siyang tabangan inig naa na siya dinha sa Manila.”
Can the following private documents be considered under the
second part of Section 40? SC: Not really.
 Letters of introduction to possible relatives,
recommendation letter for employment from a putative
relative, photograph taken at a birthday party, letter of
introduction from former Vice President Fernando Lopez
(relative of putative father) addressed to then United
States Consul Vernon McAnnich.
JISON vs. CA (1998)
The second portion of this provision, in light of the rule of ejusdem
generis, is limited to objects which are commonly known as family
possessions, or those articles which represent, in effect, a family’s
joint statement of its beliefs as to the pedigree of a person. These
have been described as objects openly exhibited and well known to
the family, or those which, if preserved in a family, may be
regarded as giving a family tradition. Other examples of these
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

objects are inscriptions on tombstones, monuments or coffin
plates.
Plainly then, the Exhibits, as private documents not constituting
“family possessions” as discussed above, may not be admitted on
the basis of Rule 130, Section 40.
“These have been described as objects openly exhibited and well
known to the family x x x” – i.e. albums
Tombstones
Why can these be used as evidence of pedigree? For the simple
reason that a tombstone has been used [?] since time immemorial.
In certain cases, inscribed there is the date of birth, and the date of
death. Naa gyud na siya sa tombstones.
Monuments
What kind are we talking about? Family monuments.
declarant, who is already reputation or tradition covering
dead or unable to testify, has matters of pedigree. (It is already
said concerning the pedigree an existing reputation)
of the family
JZE: Recall the exceptions to the res inter alias acta rule. Admission
by a co-conspirator. Remember that the conspiracy must be proved
by other proof other than the act or declaration itself. Same with a
partnership. The partnership must be proved by evidence other than
by such act or declaration. Same thing with Section 39: the
relationship must be proved other the act or declaration; Section 40
no need because the person testifying is himself a member of the
family.
In Section 39, you can even say that the information relating to the
pedigree became relevant only because a person deceased and
unable to testify made that particular declaration. Without it there is
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
secondary evidence of pedigree, as proof at least of the entries
there (i.e. date of birth, date of death)?
A: Because it is something that is very important to the family na
kung naa gani mali, usabon gyud. So there is a presumption that it is
correct.
Family Monument
It is bigger than a tombstone. It will usually indicate kung pila ka
buok nga family members and naka-bury dira.
It is the common reputation in the family, and not the common
reputation in the community, that is a material element of evidence
going to establish pedigree. (So importante na i-limit nimo siya sa
family. The courts will not care as to what the community thinks
because if the rule is otherwise, Grace Poe is already the daughter of
Ferdinand Marcos. Diba? Because that is what the community
believes.) Thus, matters of pedigree may be proved by reputation in
the family, and not by reputation in the neighborhood or vicinity,
except where the pedigree in question is marriage which may be
proved by common reputation in the community.

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

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

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

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LAW ON EVIDENCE
kinahanglan in the other case? That is for me to know and for you to
find out. Basaha na ninyo.
Common Reputation
Rule 130, Section 41. Common reputation. — Common reputation
existing previous to the controversy, respecting facts of public or
general interest more than thirty years old, or respecting marriage
or moral character, may be given in evidence. Monuments and
inscriptions in public places may be received as evidence of
common reputation.
(Revelation na common reputation ra diay sa city nang Uyangguren
street kay Ramon Magsaysay diay na siya, sama sa Claveria na C.M.
Recto diay. Well, kay before, Uyangguren and Claveria gyud na sila
sa una, named after some well-known individuals. Na- change na
ang names pero kay common reputation na man sa city na
Uyangguren and Claveria na sila, mao nang they are still referred as
such.)
(Magellan’s cross…original casing lang diay sa cross.)
(Calamba, Laguna… Birth place of Dr. Jose Rizal. We know this
because of common reputation…Location of Register of Deeds as
common reputation of people there. Unahan sa balay ni Rizal,
muliko ka sa wala, naay daghang punerarya, then Register of
Deeds.)
What is common reputation?
It is the definite opinion of the community in which the fact to be
proved is known or exists. It means the general or substantially
undivided reputation, as distinguished from a partial or qualified
one, although it need not be unanimous. (Regalado, Vol. 11, p. 787,
2008 ed.)
JZE: So not everybody would know that Uyangguren is actually
Ramon Magsaysay Avenue or that Claveria is actually C.M. Recto.
Magallanes is actually Pichon.
Note: As a general rule, the reputation of a person should be that
existing in the place of his residence; it may also be that existing in
the place where he is best known.
REQUISITES UNDER SECTION 41
1. The facts must be of public or general interest and more than
30 years old;
2. The common reputation must have been ancient, i.e. 30 years
old;
3. The reputation must have been one formed among a class of
persons who were in a position to have some sources of
information and to contribute intelligently to the formation of
the opinion; and
4. The common reputation must have been existing previous to
the controversy.
JZE: So why do we admit evidence of common reputation despite the
fact that it is hearsay? Hearsay man siya.
Rationale
Again, the evidence of common reputation is admissible on grounds
of NECESSITY and TRUSTWORTHINESS.
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based on the lectures of ATTY. JESS ESPEJO
It is necessary to admit this into evidence because of the inherent
difficulty in obtaining evidence that can be taken from common
reputation.
It is trustworthy because (everybody believes it) of
(1) The presumption that the public is conversant with the fact to
be so proved because of their general interest in them, and
(2) The fact that any error in such evidence can easily be corrected
by other testimony due to the public’s interest in such fact.
TRINIDAD vs. CA (1998)
Attendance in wedding and baptisms where a man and a woman
purport themselves to be husband and wife evidence of common
reputation regarding marriage.
Res Gestae
Rule 130, Section 42. Part of res gestae. — Statements made by a
person while a startling occurrence is taking place or immediately
prior or subsequent thereto with respect to the circumstances
thereof, may be given in evidence as part of the res gestae. So,
also, statements accompanying an equivocal act material to the
issue, and giving it a legal significance, may be received as part of
the res gestae.
RES GESTAE (things done)
When you talk about res gestae, what clearly lingers in your head is
the fact that it is a statement made during a “startling” occurrence.
(Recitation with a big bang from sir. He made a new best friend.
Haha)
JZE: Kung makakita ka ug butang o maka-experience ka ug isa ka
butang that would normally elicit a reaction because of surprise,
what usually comes out of your mouth is what comes natural. Like,
“pak!” Nakuratan ka. Maghuna-huna pa ba ka ug, “unsa kaha ang
akong reaction?” You don’t. What comes out of your mouth is
naturally truthful. When you fall down, you yell out in pain. You don’t
contemplate anymore if what you should say is, “aray” or “ouch.”
Lol. It’s a spontaneous reaction. That is precisely what res gestae is
all about.
A startling occurrence contemplated in Section 42 could be anything.
Like when you witnessed a person being shot, that is a startling
occurrence. When you are asked what you saw immediately
thereafter, or while the startling occurrence is taking place, what
would usually come out of your mouth is the truth. You would have
no time to fabricate. So there is that all important element of
spontaneity.
JZE: Again, this is admitted in evidence because of necessity and
trustworthiness.
Necessity and Trustworthiness
There is necessity because, due to the unavailability of the
declarant, there is otherwise no way to know the existence and
condition of the declarant. (Like when it was supposed to be a dying
declaration but the person did not die; he was in comatose and he
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.)
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

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

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LAW ON EVIDENCE
4. The verbal acts must be contemporaneous with the equivocal
act (meaning, at about the same time).
Excited Utterances vs. Verbal Acts (possible Bar question)
Excited Utterances Verbal Acts
Principal fact is a startling Principal fact is an equivocal
occurrence act
Statement may precede,
Statement must accompany
accompany or succeed the
the equivocal act
startling occurrence
Statement need not Statement must explain the
necessarily explain the principal fact and give it legal
principal fact significance
Cases
 Golden (Iloilo) vs. Pre-Stress (G.R. No. 176768, January 12,
2009)
o Res gestae in a Civil Case for Replevin
o There’s this warehouse. Somebody withdrew
stocks stored there. The employees of the
warehouse took note of what was taken. It
wasn’t signed; just scribbled onto a piece of
paper. The SC said that is a statement which
explains an equivocal act. What is the equivocal
act? Kadtong pagkuha sa mga stocks. That is
admissible in evidence as part of the res gestae.
 People vs. Sace (G.R. No. 178063, April 5, 2010)
o The res gestae statement may come from the
accused himself.
o Naa siyay gipatay nga tao. When he was
apprehended, he was still in shock, naglupad pa
ang huna-huna. When he was asked if he did it,
he said, “Yes, I did it.” Then the police officer
heard it, sat on the witness stand and repeated
what the accused said. However, according to
the accused, he never said anything. SC said that
what the police witness was testifying on is
actually part of the res gestae, specifically the
first part. Excited utterance, even if you are the
assailant, it is still startling to you because you
don’t kill people every day.
 Marturillas vs. People (G.R. No. 163217, April 18, 2006)
o The shooting itself is a startling occurrence.
o The husband who was shot was still alive and
coherent when he told his wife, “Si Kapitan, si
Kapitan.” Sooner rather than later, he died. That
is a startling occurrence and whatever he said
can be used as part of the res gestae. So also
kadtong gi-ingon sa iyang asawa na, “Kapitan,
kapitan, nganong gipatay nimo akong asawa” is
also a res gestae statement because it is startling
to see your husband about to die. So that can be
considered as part of the res gestae.
 People vs. Feliciano (G.R. No. 196735, May 5, 2014)
o What prevails between res gestae (which is
admissible, reliable and trustworthy according to
jurisprudence) and positive identification?
Positive identification.
PEOPLE vs. FELICIANO (2014)
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based on the lectures of ATTY. JESS ESPEJO
FACTS: On December 8, 1994, at around 12:30 to 1:00 in the
afternoon, seven (7) members of the Sigma Rho fraternity were
eating lunch at the Beach House Canteen, near the Main Library of
the University of the Philippines, Diliman, when they were attacked
by several masked men carrying baseball bats and lead pipes.
Some of them sustained injuries that required hospitalization. One
of them, Dennis Venturina, died from his injuries.
According to Leandro Lachica, Grand Archon of Sigma Rho
Fraternity, he looked around when Venturina shouted, and he saw
about ten (10) men charging toward them. The men were armed
with baseball bats and lead pipes, and their heads were covered
with either handkerchiefs or shirts. Within a few seconds, five (5)
of the men started attacking him, hitting him with their lead pipes.
During the attack, he recognized one of the attackers as Robert
Michael Beltran Alvir because his mask fell off. Other members of
Sigma Rho were able to identify some of the attackers, members of
the Scintilla Juris fraternity, allegedly because some of the
attackers either took their masks or some of them did not wear
masks at all.
According to the testimony of U.P. Police Officer Salvador, when he
arrived at the scene, he interviewed the bystanders who all told
him that they could not recognize the attackers since they were all
masked. This, it is argued, could be evidence that could be given
part of the res gestae.
(Why is this important? If the res gestae statements of the
bystanders were to be admitted and believed, it may cast
reasonable doubt on the supposed positive identification of the
accused by the victims.)
HELD: There is no doubt that a sudden attack on a group peacefully
eating lunch on a school campus is a startling occurrence.
Considering that the statements of the bystanders were made
immediately after the startling occurrence, they are, in fact,
admissible as evidence in res gestae.
In People vs. Albarido, however, this Court has stated that “in
accord to ordinary human experience: “x x x persons who witness
an event perceive the same form their respective points of
reference. Therefore, almost always, they have different accounts
of how it happened. Certainly, we cannot expect the testimony of
witnesses to a crime to be consistent in all aspects because
different persons have different impressions and recollection of
the same incident x x x.”
The statement made by the bystanders, although admissible, have
little persuasive value since the bystanders could have seen the
events transpiring at different vantage points and at different
points in time. Even Frisco Capilp, one of the bystanders at the
time of the attack, testified that the attackers had their masks on
at first, but later on, some remained masked and some were
unmasked.
When the bystanders’ testimonies are weighed against those of
the victims who witnessed the entirety of the incident from
beginning to end at close range, the former becomes merely
corroborative of the fact that an attack occurred. Their account of
the incident, therefore, must be given considerably less weight
than that of the victims.
LAW ON EVIDENCE
JZE: To my mind, it all boils down to what prevails, positive evidence
or negative evidence? Diba positive evidence: positive identification.
When the bystanders were asked, they said wala sila kaila. They
didn’t know: that’s negative evidence. So what prevails? Positive
identification.
PEOPLE vs. PASCUAL (2009)
The statements of accused-appellant’s wife, Divina, immediately
after the fateful incident all the more convince the Court as to the
accused-appellant’s guilt. Part of the res gestae and admissible in
evidence as an exception to the hearsay rule were Divina’s
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
subsequent narration of seeing the accused-appellant going out of
the victim’s room and running away therefrom.
September 21, 2016
Business Records Exception
Rule 130, Section 43. Entries in the course of business. – Entries
made at, or near the time of transactions to which they refer, by a
person deceased, or unable to testify, who was in a position to know
the facts therein stated, may be received as prima facie evidence, if
such person made the entries in his professional capacity or in the
performance of duty and in the ordinary or regular course of
business or duty.
What you need to remember here would be that being an exception
to the hearsay rule, the same rationale of necessity and
trustworthiness are applicable.
Necessity. Why? Because the declarant or the proper witness is
already deceased or unable to testify for reasons that we will go to
later on.
Trustworthy, because the presumption is something is done in the
ordinary or regular course of business and it is repeated over and
over again. It gives it a certain degree of accuracy.
REQUISITES UNDER SECTION 43
1. The person who made the entry must be dead or unable to
testify;
2. The entries were made at or near the time of the transactions
to which they refer;
3. The entrant was in a position to know the facts stated in the
entries;
4. The entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral or
religious; and
5. The entries were made in the ordinary or regular course of
business or duty. (Regalado, Vol. II, pp. 791-792, 2008 ed.)
Take note that the capacity by which the entrant has made the entry
is not limited to business. Dilikaykang a going concern that makes
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: A priest officiates a baptism and so naaymga records diha
or let’s say baptismal certificates. This has been known to be one of
those covered by Section 43.
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based on the lectures of ATTY. JESS ESPEJO
REPUBLIC VS. MANGOTARA (2010)
The admissibility of baptismal certificates absent the testimony of
the officiating priest or the official recorder, was settled, thus –
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
130, which is an exception to the hearsay rule. The baptisms
administered by the church are one of its transactions in the
exercise of ecclesiastical duties and recorded in the book of the
church during the course of its business.
Q: Is there an instance where business entries may be admitted in
evidence even where the declarant is alive?
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
memorandum to refresh his memory while testifying on the
transactions reflected therein.
We’ll go to that kang mga Present Recollection recorded and so on
and so forth, these are quite technical aspects that we need to
discuss still.
Entries in Official Records
Rule 130, Section 44. Entries in official records. – Entries in official
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
enjoined by law, are prima facie evidence of the facts therein stated.
When we say “prima facie”, once that it is established, it will stand
unless it is rebutted by contrary evidence.
REQUISITES UNDER SECTION 44
1. Entries were made by a public officer in the performance of his
duties or by a person in the performance of a duty especially
enjoined by law;
2. Entrant had personal knowledge of the facts stated by him or
such facts were acquired by him from reports made by persons
under a legal duty to submit the same; and
3. Such entries were duly entered in a regular manner in the
official records.
So we’re talking here about people in the government who regularly
take entries and records.
Examples
 PEOPLE VS. MAYINGQUE (G.R. No. 179709, July 6, 2010)
Anatomical Skeletons, Medico-Legal Report
That is entry in the official record. They are prima facie evidence of
the facts therein stated even if the person, who himself prepared
the anatomical sketch or the medico-legal report, is not present to
testify.
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.
But when the case came where that medico-legal report became
relevant and should have been presented, it was his successor who
LAW ON EVIDENCE
testified. Pwede ba na siya? According to the SC: Yeah! In the case of
People vs. Mayingque.
 PEOPLE VS. PRESAS (G.R. No. 182525, March 2, 2011)
Report of an official forensic chemist regarding a
recovered prohibited drug
Again, that is prima facie evidence of the facts therein stated even if
the forensic chemist himself did not testify.
If you are the opponent or the accused, let’s say in the case of
People vs. Presas, what should you have done? You have to rebut,
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
forensic chemist who made the examination to testify in court.
 PEOPLE VS. SAN GABRIEL (G.R. No. 107735, February 1,
1996)
Advance Information Sheet, Police Blotter and
Other Police Reports
Although in practice what we usually do would be to subpoena the
officer who made the blotter. Then they testify as to what that
blotter includes.
If you ask me, there is nothing much about the police blotter. Why?
Because it can be influenced, wala mana siyay actual probative
value except to prove that a particular incident took place. Is it proof
that a person is already guilty? No.
Is it proof that in a collision case, in a traffic accident report, does it
mean that if you’re Vehicle 2 you are supposed to be the one guilty?
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
nabanggaan, that’s the misconception. To my mind, there’s really
no probative value especially so when traffic accident reports are
based on interviews made by the officer after the accident took
place. Makita ba diay sa officer ana kung giunsa an gpagbangga,
kung kinsa gyud ang sala?
Commercial Lists
Rule 130, Section 45. Commercial lists and the like. – Evidence of
statements of matters of interest to persons engaged in an
occupation contained in a list, register, periodical, or other published
compilation is admissible as tending to prove the truth of any
relevant matter so stated if that compilation is published for use by
persons engaged in that occupation and is generally used and relied
upon by them therein.
REQUISITES UNDER SECTION 45
1. It is a statement of matters of interest to persons engaged in an
occupation;
2. Such statement is contained in a list, register, periodical or
other published compilation;
3. Said compilation is published for the use of persons engaged in
that occupation, and
4. It is generally used and relied upon by persons in the same
occupation.
Cases
 PNOC SHIPPING VS. CA (G.R. No. 107518, October 8, 1998)
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Excludes mere price quotations or replies to queries
as to costs.
What happened was there was a collision of maritime vessels.
Katongdili sad-an, the plaintiff, wanted to have the vessel repaired.
What it did, it secured quotations coming from those engaged in the
repair of marine vessels to determine kung pila iyahang gi-claim as
damages for the repair. He got a lot of quotations and according to
him they can be presented without presenting those who made the
quotations themselves because it’s considered a commercial list.
The SC said NO, that’s not a commercial list. It excludes price
quotations or replies to queries as to costs.
 MERALCO VS. SECRETARY OF LABOR (G.R. No. 127598,
February 22, 2000)
Excludes mere newspaper accounts
Regarding wages to be paid by an employees, ang pangutana diha
newspaper accounts, listing what is supposed to be paid by an
employer to an employee all throughout the country is not
considered as a commercial list? According to the SC, NO. It excludes
such newspaper accounts as to wages.
Q: What are the examples of commercial lists and the like?
1. Trade journals and reporting current prices and other market
data;
2. Mortality tables compiled for life insurance;
3. Abstracts of title compiled by reputable title examining
institutions or individuals; or
4. Business directories, animal pedigree registers, and the like.
(Francisco, p. 339, 1992 ed.)
None of them I am familiar with. To illustrate why it is necessary and
trustworthy, let me explain it to you this way. Let’s go back to the
past, 10 years ago, when people still use directories. Naay yellow
pages di ba? And the yellow pages there would normally include a
division of numbers, addresses and companies based on the
business they’re engaged to. So it’s a list. If you’re looking for a
printing press, you go to a directory.
Question is who compares that? Isn’t it a fact that every year naay
bag-ong version sa directory. So it’s conceivable that every year the
entries would change and it goes back a long long time ago when
they first issued directories. Can you trace who made the first
directory when it was first issued? Dili na nimo na ma-trace, maybe
if it’s necessary to admit a directory for example. Is it trustworthy?
Well apparently it is because people use them. If you’re looking for a
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.
That’s how to illustrate why commercial list are supposed to be
exceptions to the hearsay rule because they are necessary and they
are trustworthy.
Learned Treatises
Rule 130, Section 46. Learned treatises – A published treatise,
periodical or pamphlet on a subject of history, law, science, or art is
admissible as tending to prove the truth of a matter stated therein if
the court takes judicial notice, or a witness expert in the subject
testified, that the writer of the statement in the treatise, periodical
or pamphlet is recognized in his profession or calling as expert in the
subject.
Q: When are learned treatises admissible?
LAW ON EVIDENCE
1. When the court can take judicial notice of them; or
If the court takes judicial notice of the fact that that is really a
learned treatise, meaning that is supposed to be a full compendium
of knowledge related to a particular branch of study then it will be
admitted as such. The court can now quote from the learned
treatise.
2. When an expert witness testifies that the author of such is
recognized as expert in that profession. (Sec. 46)
What about if walani-take ugjudicial notice angcourt? Take note of
the requirement that an expert of the subject must testify that the
writer himself of the learned treatise is an expert. So there’s that
prequalification requirement under Section 46.
Grey’s Anatomy, it’s not just a name of the show, it’s a book that is
used by medical professionals. Everybody in the medical field would
know what this Grey’s Anatomy book is all about. Meaning it’s a
treatise, and they say that Grey is an expert on that subject. That’s
the reason why it’s considered as a learned treatise.
Examples:
1. Historical works;
2. Scientific treatises; or
3. Law (Francisco, pp. 340-341, 1992 ed.)
Law, that I do not agree with. Remember that the law in the
Philippines will always be subject to an adversarial reckoning. It will
depend on how the plaintiff argues and how the defendant counter-
argues. Regardless of what a particular legal treaty would say,
parties will always try to get portions of that legal treatise that
would benefit their cause. Always subject to argumentation, to
counter-interpretation by different parties. So to my mind, I don’t
think that a legal treatise should be a proper exception to the
hearsay rule.
Do you consider the SCRA to be a legal treaty? No, I’ve never seen a
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
lang walay practical application.
Testimony or deposition at a former proceeding
Rule 130, Section 47. Testimony or deposition at a former
proceeding. – The testimony or deposition of a witness deceased or
unable to testify, given in a former case or proceeding, judicial or
administrative, involving the same parties and subject matter, may
be given in evidence against the adverse party who had the
opportunity to cross-examine him.
What happens here is that there’s a present case, a case under
consideration by a particular court but sometimes cases for just
offshoots of other cases. It’s quite possible that between the
plaintiff and the defendant, the present case is not the only case
between the two. And it’s also quite possible that evidence
presented in a particular case is evidence that has already been
presented in a previous case, or that the parties have already
testified during that related case.
What Section 47 foresees is the use of testimonies or depositions
previously taken in probably a different case in the present case
under consideration in the court. The testimony or deposition of a
witness deceased or unable to testify, making it necessary once
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again, given in a former case or proceeding, judicial or
administrative, involving the same parties, the same subject matter,
may be given in evidence against the adverse party. But the
important requisite to remember here was that in the previous case
there must have been opportunity given to the adverse party to
cross-examine the witness or the deponent.
REQUISITES UNDER SECTION 47
1. Witness whose testimony is offered in evidence is dead or
unable to testify;
2. The testimony or deposition was given in a former case or
proceeding, judicial or administrative, between the same
parties or those representing the same interests;
3. Former case involved the same subject as that in the present
case, although on different causes of action;
4. Issue testified to by the witness in the former trial is the same
issue involved in the present case; and
5. Adverse party had an opportunity to cross-examine the witness
in the former case.
“Opportunity to cross-examine” – it does not necessarily mean
actual conduct of cross-examination. It is enough that cross-
examination or the opportunity to cross-examine was given to the
adverse party. What if he said “No cross-examination, Your Honor”,
he refuses to cross-examine for whatever reasons. That would be
enough, no need for actual cross-examination, what’s important was
that the adverse party was given an opportunity to cross-examine.
Now again, balik ta, what would be the rationale why Section 47 is
an exception to the hearsay rule? Necessity, trustworthiness. Why
necessity? Because the witness is already deceased or otherwise
unable to testify. Why is it trustworthy? Because in the previous
case, the adverse party was given an opportunity to cross-examine.
So that further cross-examination in the present case would not be
expected to be different. It would illicit more or less the same facts.
Q: What are the grounds, aside from death, which makes a witness
unable to testify in a subsequent case?
1. Insanity or mental incapacity or the former witness’ loss of
memory through old age or disease;
2. Physical disability by reason of sickness or advanced age;
3. The fact that the witness has been kept away by contrivance of
the opposite party; or
4. The fact that after diligent search the former witness cannot be
found. (Francisco, p. 342, 1992 ed.)
Again let me remind you, all the exceptions of the hearsay rule
pareha ra gyud na ug rationale. Necessity and Trustworthiness.
Common reputation for example. Why necessity? Because you really
do not know who should testify there. Why trustworthy? Because
it’s been common knowledge of the people in the community for at
least 30 years.
OPINION RULE
Is it allowable for a litigant to go to court and as part of his evidence
present the opinion of the people? At the witness stand, “Mr.
witness in your opinion is the accused guilty or is he innocent?”
Witness: “Guilty.” “Okay you’re excused.” Call another witness and
ask the same question. So if that is the case, if that was allowed,
what will happen to litigations? It will practically become an exercise
where you’re just testing the popularity of a particular party.
LAW ON EVIDENCE
Q: What is an opinion?
It is an inference or conclusion based or drawn from the facts
established.
When a witness states an opinion, he does not testify based on
personal knowledge. Instead of saying what he saw, heard, smelled,
tasted or touched, he is testifying as to what he thinks about a
particular matter.
So when you hear a question like, “So what do you think Mr.
Witness?” “Objection Your Honor, calls for an opinion.”
General Rule
Rule 130, Section 48. General rule – The opinion of witness is not
admissible, except as indicated in the following sections.
BERNARDINO VS. PEOPLE (2006)
Witnesses can testify only to those facts which they know of their
personal knowledge, that is, which is derived from their own
perception. They are not generally allowed to testify on their
opinion or conclusion but must state facts within their knowledge as
it is the province of the court to make deductions from pertinent
facts placed in evidence and to decide matters directly in issue. Their
testimony must be confined to statements of concrete facts within
their own observation, knowledge, and recollection – that is, facts
perceived by the use of their own senses – as distinguished from
their opinions, inferences, impressions and conclusions drawn from
such facts, which are incompetent and inadmissible.
Exceptions
1. Opinion of Expert Witness (Section 49)
2. Opinion of an Ordinary Witness as to:
a. The identity of a person about whom he has adequate
knowledge;
b. A handwriting with which he has sufficient familiarity’
c. The mental sanity of a person with whom he is sufficiently
acquainted; and
d. The witness’ impressions of the emotion, behavior,
condition or appearance of a person (Section 50)
Expert Opinion
Rule 130, Section 49. Opinion of expert witness. – The opinion of a
witness on a matter requiring special knowledge, skill, experience or
training which he shown to possess, may be received in evidence.
Q: What is an expert witness?
PEOPLE VS. ABRIOL (2001)
An expert witness is “one who belongs to the profession or calling to
which the subject matter of the inquiry relates and who possesses
special knowledge on questions on which he proposes to express an
opinion.”
Q: Is there a definite standard of determining the degree of skill or
knowledge that a witness must possess in order to testify as an
expert?
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based on the lectures of ATTY. JESS ESPEJO
A: None. It is sufficient that the following factors are present:
1. Training and education;
2. Particularity, first-hand familiarity with the facts of the case;
and
3. Presentations of authorities or standards upon which his
opinion is based. (PEOPLE VS. ABRIOL, 2001)
Take note that the law mentions “training and education.”
Education may make you an expert but training is sometimes
acquired. Example: You graduate from medical school. You took and
passed the licensure examination for physicians. You became a full-
fledged doctor. Are you now an expert? No, you have to undergo
certain trainings. You have to specialize.
Q: How is expertise acquired?
There is no precise requirement as to the mode in which skill or
experience shall have been acquired. Scientific study and training
are not always essential to the competency of a witness as an
expert. Knowledge acquired by doing is no less valuable than that
acquired by study. (DILAG CO. VS. MERCED, 1949)
What’s an example? Kanang mga karpintero, mga panday, mason,
those who work with concrete. You think they studied a four-year
course just to know how to build a house? Or to carve a wood or
manipulate wood or concrete? No, but years of experience
somehow gives them that expertise. Kinsa ba nagadala sa usa ka
construction? Is it the architect, engineer and the contractor or the
foreman? It’s the foreman who is usually unlettered. Wala
nakahuman ug skwela pero hawud kaayu. He knows that if this is
the structure, this would be the amount of posts that you need
without even computing anything. It’s expertise made by
experience.
Q: What is expert evidence?
It is testimony of a person (expert witness) possessing knowledge
not usually acquired by other persons in a particular subject matter.
There’s that requirement of specialization. There’s no person in the
world who can be considered an expert on everything, a master of
everything.
Q: When is expert evidence admissible?
A: It is admissible when:
1. the matter to be established requires expertise; and
2. the witness has been qualified as an expert.
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
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
the case, what do you need to show to the court? Experts, scientific
or medical opinion would be the one that is desired.
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
that the standard operating procedure in a court of law or in the
field of medicine? The court will not know. You cannot expect the
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
LAW ON EVIDENCE
necessarily draw from expert evidence. Evidence that normally a
court cannot appreciate on its own.
Q: What is the test in determining whether there is need to resort to
expert evidence?
A: The test is whether the opinion called for will aid the court in
resolving an issue.
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
more often than not, the court is forced to rely on expert opinion.
Q: How an expert witness testifies?
An expert witness is always offered as such.
STIPULATION. If the opponent admits that he is an expert,
he can immediately proceed with his testimony.
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
offer, “The testimony of this witness is offered to prove the
following matters, . . . he will testify Your Honor, as an expert
witness” That’s the way we did it before prior to the judicial affidavit
rule. Right now in the judicial affidavit rule, you still have to cite the
purposes at the beginning of the judicial affidavit. You have no
problem if your opponent admits or stipulates that the witness you
are presenting is actually an expert.
In psychological incapacity cases, what do you need to prove there?
Pursuant to Article 36, Republic vs. Molina, you need to prove
psychological incapacity. There’s this doctor from Davao who I
always see in Article 36 cases elsewhere. It’s funny because every
time that guy testifies, nobody ever stipulates as to his expertise.
That’s why the judge would always tell the adverse party, “Would
you care to stipulate as to the expertise of the witness on this field,
on the issue of psychological incapacity?” And then the adverse
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
mga party. So if the adverse party does not stipulate as to the
qualification of the witness, what do you need to do? You go to the
process called qualifying a witness.
Qualifying a Witness
If the opponent does not admit that he is an expert witness, then
before a witness proposed as an expert may testify, he must first be
qualified. “Qualifying a witness” means the act of proving that the
witness is an expert. This is done by making him testify, through
preliminary questions, as to his training, education and expertise.
What we usually do would be to ask the witness to bring his
certifications, his diploma, his certificate of admission to a particular
profession that he belongs. What evidence does he have as to
certain trainings that would help establish his expertise and so on
and so forth. So it’s a very long process actually. But now because of
the judicial affidavit rule, you just put it all down to paper. You just
assume that there’s no stipulation as to the expertise of the witness.
Basis of Opinion
An expert witness may base his opinion either on the first-hand
knowledge of the facts or on the basis of hypothetical questions
where the facts are presented to him and on the assumption that
they are true, formulates his opinion on the hypothesis.
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based on the lectures of ATTY. JESS ESPEJO
Procedure
1. Introduce and qualify the witness, if his qualifications are not
otherwise stipulated upon by the opponent;
What’s the process of qualifying a witness? We already
illustrated that.
2. Present his factual testimony, if he has knowledge of the facts;
Because an expert witness will of course be briefed as to
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
made his own independent investigation as to what
happened in the case that necessitated his testimony as a
ballistic expert.
3. Begin the hypothetical question by asking him to assume
certain facts as true;
Assuming for the sake of argument, a sexually
transmissible disease could result in sterility making a
person unable anymore to procreate. Is it now possible
that the child claiming paternity is not really a child of A,
the defendant? So that’s a hypothetical question.
4. Conclude the question, by first asking the expert if he has an
opinion on a certain point assuming that these facts are true
and secondly, asking him, after he has answered affirmatively,
to give his opinion on the point.
5. After he has stated his opinion, ask him to give his reasons or
the bases for his opinion.
Definitely there should be a basis. Say for example, sterility
caused by sexually transmissible disease. You cannot cite a
legal treatise. Asa gikan ang imong opinion?
Nature of expert opinions
Expert opinions are not ordinarily conclusive in the sense that they
must be accepted as true on the subject of their testimony, but are
generally regarded as purely advisory; the courts may place
whatever weight they choose upon such testimony and may reject
it, if they find that it is inconsistent with the facts in the case or
otherwise unreasonable.
What you’re doing when you present an expert witness will be not
to establish a matter of fact but you’re giving the court an advisory,
an advice that the court can base his opinion upon.
TABAO VS. PEOPLE (2011)
The use of the word “may” signifies that the use of opinion of an
expert witness is permissible and not mandatory on the part of the
courts. Allowing the testimony does not mean, too, that the courts
are bound by the testimony of the expert witness. The testimony of
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
in the determination of the issue before it, and is for the court to
adopt or not to adopt depending on its appreciation of the
attendant facts and the applicable law.
“Permissive” that’s the keyword that you need to remember. The
use of expert opinion is at most permissive.
LAW ON EVIDENCE
Q: Are there instances under the law where expert evidence is
actually mandated? YES. For example:
 Medical Malpractice Cases
(CASUMPANG VS. CORTEJO, G.R. No. 171127, March 11,
2015)
 Section 46, on learned treatises
If the court does not take judicial notice that the writer of the
treatise is an expert, you have to present a witness expert on the
subject who will testify that that guy, the author of the treatise, is
really an expert.
 Article 36 Cases (REPUBLIC VS. MOLINA, 268 SCRA 198)
Is it absolutely required or mandated in the case for declaration for
nullity of marriage that psychological incapacity should be proven by
expert? Remember naa na siya sa elements, the testimony or
examination of a psychologist or a clinical psychiatrist that should
prove the psychological capacity. What do you need to prove
regarding psychological incapacity? Gravity, Incurability and Juridical
Antecedence.
BIER VS. BIER (2008)
The personal examination of the party alleged to be psychologically
incapacitated by a psychiatrist or psychologist is no longer
mandatory for the declaration of nullity of the marriage under
Article 36 of the Family Code but the totality of evidence must still
prove the gravity, juridical antecedence and incurability of the
alleged psychological incapacity.
That’s the basis now for the holding that you can actually dispense
with it. Pwede na di ka magpa-testify ug psychiatrist or psychologist.
Anyway kaning mga tawhanani, I have seen cases na they don’t
really make a thorough psychological evaluation of a party. So kinta
hayang nag-hire sa iyaha kayang bana, so pangutan-on niya ang
bana, “Unsa man gyud diay ang character sa imong asawa?”
Husband: “Nagger, mahjongera, bigaon” And then based on the
statements made by the husband, the psychiatrist will now only
know that psychologically incapacitated ang asawa despite not
being able to physically examine or psychologically evaluate the
wife.
CASUMPANG VS. CORTEJO (2015)
Expert testimony is essential to establish not only the professional
standards observed in the medical community, but also that the
physician’s conduct in the treatment of care falls below such
standard.
When can there be a charge for medical practice? The keywords
there would be deviation from standard of care required under the
situation. Example: How do you usually treat, in the case of
Casumpang vs. Cortejo, dengue fever? What are the accepted
medical standards in the treatment of a person afflicted with
dengue fever? Did the doctor deviate from those standards? How
would the court know that if there’s no testimony by the expert in
the medical field as to what are the acceptable standards of
treatment for dengue fever? So in ana ang reason nganung
kinahanglan absolutely required ang expert testimony in medical
malpractice cases, simply because a court is a court of law, not a
tribunal of medicine.
DE LA LLANA VS. BIONG (2013)
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On March 30, 2000, at around 11:00 p.m., Juan delaLlana was
driving a 1997 Toyota Corolla car along North Avenue, Quezon City.
His sister, Dra. delaLlana, was seated at the front passenger seat
while a certain Calimlim at the backseat.
Juan stopped the car across the Veterans Memorial Hospital when
the signal light turned red. A few seconds after the car halted, a
dump truck containing gravel and sand suddenly rammed the car’s
rear end, violently pushing the car forward. Due to the impact, the
car’s rear end collapsed and its rear windshield was shattered. Glass
splinters flew, puncturing Dra. delaLlana. Apart from these minor
wounds, Dra. delaLlana did not appear to have suffered from any
other visible physical injuries. The truck driver revealed that his
employer was Rebecca Biong.
A month and a half after the accident, Dra. delaLlana began to feel
moderate pain on the left side of her neck and shoulder. Her health
deteriorated to the extent that she could no longer move her left
arm. She consulted with Dr. Rosalinda Milla to examine her
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
arm and hand.
She sued the defendants for damages for her whiplash injury. During
trial, as a medical doctor, Dra. delaLlana herself testified about her
alleged whiplash injury.
Evidence of delaLlana
1. The pictures of her damaged car
To show that the collision was strong and it can be
reasonably inferred from these pictures that the massive
impact resulted in her whiplash injury.
2. The medical certificate dated November 20, 2000
Dr. Milla categorically stated in the medical certificate that
Dra. delaLlana suffered from whiplash injury.
3. Her testimony that collision can cause whiplash injury.
Credible because she was a surgeon.
Ruling:
1. The pictures of her damaged car
According to the SC, it only proves impact. It cannot be
used to infer whiplash injury.
2. The medical certificate dated November 20, 2000
HEARSAY. The doctor who issued it did not testify.
3. Her testimony that collision can cause whiplash injury.
EXCLUDED FOR BEING A MERE OPINION.
As to the Medical Certificate – The medical certificate has no
probative value for being hearsay. It is a basic rule that evidence,
whether oral or documentary, is hearsay if its probative value is not
based on the personal knowledge of the witness but on the
knowledge of another person who is not on the witness stand.
As to her testimony – Dra. delaLlana, as the plaintiff in this quasi-
delict case, was the lone physician-witness during trial. Significantly,
she merely testified as an ordinary witness before the trial court.
Dra. delaLlana essentially claimed in her testimony that Joel’s
reckless driving caused her whiplash injury. Despite the fact that
Dra. delaLlana is a physician and even assuming that she is an expert
in neurology, we cannot give weight to her opinion that Joel’s
reckless driving cause her whiplash injury without violating the rules
on evidence.
LAW ON EVIDENCE
In the present case, Dra. delaLlana’s medical opinion cannot be
given probative value for the reason that she was not presented as
an expert witness. As an ordinary witness, she was not competent to
testify on the nature, and the cause and effects of whiplash injury.
Furthermore, we emphasize that Dra. delaLlana, during trial,
nonetheless did not provide a medical explanation on the nature as
well as the cause and effects of whiplash injury in her testimony.
She was offered as an ordinary witness, a factual witness, that
makes her testimony inadmissible. Dili ka pwede mahimong expert
kung gi-offer ka as an ordinary witness even if incidentally you can
be considered as an expert. Remember that’s the reason why a
witness is qualified, if you are proposed to be as an expert witness,
you have to give the opponent the opportunity to question your
qualification. Otherwise, kita tanan pwede ta maghatag ug
opinion/expert evidence on a particular case.
CASES:
 PAJE VS. CASIÑO (G.R. No. 207257, February 3, 2015)
Expert opinion in environmental cases
- How do you prove that the opening of a power plant would cause
irreparable environmental damage?
 SAN DIEGO VS. PEOPLE (G.R. No. 176114, April 8, 2015)
Dueling expert witnesses in criminal cases involving
mishandling or theft of money.
This is a case for qualified theft that it was made possible through
the manipulation of financial records. So an expert was presented by
the prosecution and then an expert presented by the accused about
the financial records may be used as evidence.
Reminds me of a concept that they have in the United States, the so-
called “Gibson’s Law”, states that for every expert there is an equal
and opposite expert.
 TOLENTINO VS. LATAGAN (G.R. No. 179874, June 22, 2015)
Is it required for a handwriting expert to examine the
original documents allegedly forged?
And as a corollary issue, would a showing of possible bias
on the part of the expert adversely affect the
proponent?
There was an allegation that the expert witness was beholden to
one of the parties because one of the parties gave him money for
the appendectomy.
 PUNZALAN VS. COMELEC (G.R. No. 126669, April 27, 1998)
Are handwriting experts required in examining or
comparing handwriting in a ballot?
A possible allegation during election time some years ago, dili pa
automated ang atoang elections, was that in certain precincts and
certain municipalities, only one person would write the names of
candidates that they favor and then replace those ballots na dili
ilaha. So to determine whether or not there is electoral fraud, is it
possible or is it required for the Comelec to get handwriting experts
to show that the ballots have been accomplished by just one
person? According to the SC, NO need. The Comelec can see for
itself. But karon dili na, we don’t need handwriting experts anymore
in election cases, as in absolutely not. What you would need would
be tech experts to rig the PCOS machines.
3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.
based on the lectures of ATTY. JESS ESPEJO
Opinion of Ordinary Witness
Rule 130, Section 50. Opinion of ordinary witnesses. – The opinion
of a witness for which proper basis is given, may be received in
evidence regarding:
(a) The identity of a person about whom he has adequate
knowledge;
(b) A handwriting with which he has sufficient familiarity; and
(c) The mental sanity of a person with whom he is sufficiently
acquainted.
The witness may also testify on his impressions of the emotion,
behavior, condition or appearance of a person.
Identity – If you look at all of these subjects of ordinary opinion, you
will really consider them to be purely opinion. None of them are
based on personal knowledge. Example: You got a phone call and
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
did not identify himself but somehow you got an opinion that the
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
an opinion as to the identity of that person.
Handwriting – Example: A secretary testifying that the handwriting
there is the handwriting of her boss or the signature there is purely
the signature of her boss. For 10 to 12 years, she has been the
secretary of that person so she knows.
Mental Sanity – The mental sanity of a person, opinion lang na. How
do you know for sure that that person is not sane? You don’t know
that but in your opinion, “I think that guy is crazy.”
Emotion – The witness may also testify on his impressions of the
emotion. “Was he angry at that time? Was he shocked? How do you
know that?” You cannot state that out of your personal knowledge
but based on your observation of him, your opinion is that he was
angry. You don’t know that for sure.
Behavior – “He was acting crazy.” That’s just an opinion because
how a person acts will always be subjective. An act maybe crazy to
one but it may not be so crazy to another person.
Condition/Appearance of a Person – Pangit, gwapa, opinion lang na
tanan.
Identity
PEOPLE VS. PRIETO (2003)
This Court has ruled that identification by the sound of the voice of a
person identified, is a sufficient and acceptable means of
identification where it is established that the witness and the
accused had known each other personally and closely for a number
of years.
Handwriting
MARIANO VS. ROXAS (2002)
That the receipts are not genuine was confirmed by Lorna Caraga.
She testified that she is familiar with the signature of complainant
who was her officemate for a period of 5 years in the RTC of
Caloocan City. In many occasions, complainant signed documents in
her presence. Her opinion as to complainant’s genuine signature is
admissible in evidence pursuant to Section 50, Rule 130.
LAW ON EVIDENCE
Mental Sanity
When a person not an expert testifies as to the mental sanity of a
person, he is actually stating a matter of opinion derived from his
own perception. However, in order to be admissible, the witness
must have been sufficiently acquainted with the person and his
mental sanity. To be considered sufficiently acquainted, the
proponent must establish the degree of familiarity between the
witness and the person whose sanity he is testifying about.
This is particularly useful in Succession cases considering that one of
the requirements for testamentary capacity is that the testator must
be of sound mind.
Emotion/Behavior/Condition or Apperance
BAR Question: Dencio barged into the house of Marcela, tied her to
a chair and robbed her of assorted pieces of jewelry and money.
Dencio then brought Candida, Marcela’s maid, to a bedroom where
he raped her. Marcela could her Candida crying and pleading:
“Huwag! Maawa ka sa akin!” After raping Candida, Dencion fled
from the house with the loot. Candida then untied Marcela and
rushed to the police station about a kilometer away and told Police
Officer Roberto Maawa that Dencion had barged into the house of
Marcela, tied the latter to a chair and robbed her of her jewelry and
money. Candida also related to the police officer that despite her
pleas, Dencion had raped her. The policeman noticed that Candida
was hysterical and on the verge of collapse. Dencio was charged
with robbery with rape. During the trial, Candida can no longer be
located.
If the police officer will testify that he noticed Candida to be
hysterical and on the verge of collapse, would such testimony be
considered as opinion, hence, inadmissible? Explain.
UP Suggested Answer: No, it cannot be considered as opinion,
because he was testifying on what he actually observed. The last
paragraph of Section 50, Rule 130, Revised Rules of Evidence,
expressly provides that a witness may testify on his impressions of
the emotion, behavior, condition or appearance of a person.
-Although to my mind, mali ang pagkatubag nila. Still opinion, it’s
just that it is an admissible opinion. Pwede man siya, impression
lang gud na siya of a person. “In you opinion, what was she?” “She
was hysterical and on the verge of collapse.” Although you do know
that for a certainty, you did not physically examine her.
BAR Question: At Nolan’s trial for possession and use of the
prohibited drug, known as “shabu”, his girlfriend Kim, testified that
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
and overly nervous at the slightest sound he would hear. Nolan
objects to the admissibility of Kim’s testimony on the ground that
Kim merely stated her opinion without having been first qualified as
expert witness. Should you, as judge, exclude the testimony of Kim?
Answer: No. The testimony of Kim should not be excluded. Even
though Kim is not an expert witness, Kim may testify on her
impressions of the emotion, behavior, condition or appearance of a
person. (Sec. 50, last par., Rule 130)
You know what I realized because this is a repeating question in the
bar examinations, I think you need to memorize that. At least the
order in which the terms appear, “emotion, behavior, condition and
3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.
based on the lectures of ATTY. JESS ESPEJO
appearance of a person.” Because I always ask this in my
examinations as well, I am less impressed with people who do not
get it in the proper order in which they appear in the codal. So you
memorize that.
CHARACTER EVIDENCE
What is character evidence? Simply, it’s the perception about a
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
reputation. That’s character evidence and the prevailing rule there
would be Section 51.
Rule 130, Section 51. Character evidence not generally admissible,
exceptions:
(a) In Criminal Cases:
(1) The accused may prove his good moral character which is
pertinent to the moral trait involved in the offense
charged.
(2) Unless in rebuttal, the prosecution may not prove his bad
moral character which is pertinent to the moral trait
involved in the offense charged.
(3) The good or bad moral character of the offended party
may be proved if it tends to establish in any reasonable
degree the probability or improbability of the offense
charged.
(b) 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.
(c) In the case provided for in Rule 132, Section 14.
So the general rule is if you’re prosecution, you cannot convict the
accused of evidence that his reputation in the community was bad.
“He’s an known hitman/drug user/thief in the community.” You
cannot do that because it is not material or relevant to the issue of
whether or not he committed the crime of which he is charged.
Rule 132, Section 14. Evidence of good character of witness. -
Evidence of the good character of a witness is not admissible until
such character has been impeached.
You cannot therefore bolster a witness. You may only resort to
introducing evidence about, let’s say, the good character of a
witness only for the purpose of what we call “Rehabilitation”. To
rehabilitate the credibility of the witness after his credibility has
been breached.
So these are the three very related matters:
1) Bolstering – You prove the good character or reputation of the
witness even if his character has not been impeached.
2) Impeachment – You destroy the credibility of the witness. You
can do so by telling the court that the witness has a bad
reputation.
3) Rehabilitation – Kung gidaot sa kalaban nimo ang reputation
sa imong witness at the witness stand, you’re allowed to
present evidence to counteract that.
Rationale
Generally, the character of a party is regarded as LEGALLY
IRRELEVANT in determining a controversy. IT IS PURELY
CIRCUMSTANTIAL. That is the reason why it is inadmissible.
LAW ON EVIDENCE
The rule is that the character or reputation of a party is regarded as
legally irrelevant in determining a controversy, so that evidence
relating thereto is not admissible. Ordinarily, if the issues in the case
were allowed to be influenced by evidence of the character or
reputation of the parties, the trial would be apt to have the aspects
of a popularity contest rather than a factual inquiry into the merits
of the case. After all, the business of the court is to try the case, and
not the man; and a very bad man may have a righteous case
(PEOPLE VS. LEE, G.R. No. 139070, May 29, 2002)
Exceptions
When are you allowed to present evidence as to the good character
of the accused?
Good character of the accused
When the accused presents proof of his good moral character, this
strengthens the presumption of innocence, and where good
character and reputation are established, an inference arises that
the accused did not commit the crime charged. This view proceeds
from the theory that a person of good character and high reputation
is not likely to have committed the act charged against him.
I heard this a lot in court. A person being tried for murder will
present witnesses tending to show that he is a responsible son, a
conscientious member of the community and so on and so forth.
What’s the purpose of that? So that the court might be swayed to
think that the accused is not actually a bad person.
Thus, a person accused of a crime involving dishonesty may present
evidence tending to prove that he is honest.
By the Prosecution
Example: If Gerald is accused of stealing from the purse of Maja, the
prosecution cannot present witnesses tending to show that Gerald
has the propensity to steal.
However, if Gerald presented character evidence tending to show
that he is honest or that he is not a thief, the prosecution now
present adverse character evidence (only in rebuttal).
Kung nag-present siya ug evidence of good character, that’s the only
time that the prosecution can present evidence of his bad character.
In both (1) and (2)
The character evidence must be relevant and germane to the kind of
the act charged, e.g., on a charge of rape, character for chastity; on a
charge of assault, character of peacefulness or violence; on a charge
for embezzlement, character for honesty and integrity.
So there is that basic requirement of relevancy. Kung ang crime in
ani, dapat in ani pud ang imohang character evidence that you can
present.
Offended Party
Character evidence, whether good or bad, of the offended party
may be proved “if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.”
Example: In a prosecution for murder where the accused pleads the
justifying circumstance of self-defense, he may present evidence of
the bad character of the victim (i.e., that the victim is a violent
person, proving unlawful aggression).
3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.
based on the lectures of ATTY. JESS ESPEJO
Example: In a prosecution for rape, where the defense of the
accused is consent, he may present evidence of the bad character of
the woman (i.e., bigaon, that the woman is a prostitute, etc.)
Homicide, etc.
In homicide cases, a pertinent character trait of the victim is
admissible in two situations: (1) as evidence of the deceased’s
aggression; and (2) as evidence of the state of mind of the accused.
The purnacious, quarrelsome or trouble-seeking character of the
deceased or his calmness, gentleness and peaceful nature, as the
case may be, is relevant in determining whether the deceased or the
accused was the aggressor.
When the evidence tends to prove self-defense, the known violent
character of the deceased is also admissible to show that it
produced a reasonable belief of imminent danger in the mind of the
accused and a justifiable conviction that a prompt defensive action
was necessary.
But proof of the victim’s bad moral character is not necessary in
cases of murder committed with treachery and premeditation.
(PEOPLE VS. LEE, G.R. No. 139070, May 29, 2002)
It doesn’t matter. It will only be relevant, the bad character of the
victim if you’re pleading self-defense.
PEOPLE VS. SAZON (1990)
The bad moral character of the offended party may be proved in
evidence to establish in any reasonable degree the probability of the
offense charged, e.g., the quarrelsome nature of the victim may
tend to establish that he started the unlawful aggression.
Nonetheless, such evidence, seeking to establish as it does only a
probability, cannot prevail over facts sufficiently proven by the
prosecution during the trial belying such aggression.
Kung nay lain naka witness clearly stating that he initiated the
altercation and in the process killed the victim, it wouldn’t matter.
PEOPLE VS. ADONIS (1995)
Even if it had been proved by competent evidence that the deceased
was of a quarrelsome disposition, such evidence would only have
established a probability that he had indeed started an unlawful
assault on Eleuterio. This probability cannot overcome the positive
statement of the prosecution witnesses during trial that the
accused-appellant had assaulted Basas without any provocation.
Rape and Similar Offenses
General Rule
In rape and acts of lasciviousness or in any prosecution involving an
unchaste act perpetrated by a man against a woman where the
willingness of a woman is material, the woman’s character as to her
chastity is admissible to show whether or not she consented to the
man’s act.
Exceptions
 When the woman’s consent is immaterial such as in statutory
rape or rape with violence or intimidation.
 In the crimes of qualified seduction or consented abduction
where the offended party must be a “virgin” which is
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
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