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EVIDENCE

SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

June 21, 2018 (Alexander Abonado) They are inadmissible for any purpose in any proceeding.
And when you talk about inadmissibility, you are actually
RULE 128 talking about evidence. What are you allowed and what are
GENERAL PROVISIONS you not allowed to present to bring to court.

Rule 128 Section 1 of the Rules of Court defines what Unsay pwede nimo i-prove? Unsay pud ang dili nimo i-
evidence is. It states evidence is the means sanctioned by prove.
these rules of ascertaining in a judicial proceeding the truth
respecting a matter of fact. Criminal law. You recall any evidentiary rule that requires
specific proof?
Section 1. Evidence defined. Evidence is the means
sanctioned by these rules of ascertaining in a judicial Treason. How do you prove treason? Or at least, how many
proceeding the truth respecting a matter of fact. witnesses are needed in order to prove that a person
committed treason? – 2 witness rule in treason.
When the law defines a particular term, it simply means that
it transforms it into a technical term that is susceptible of no And I’m willing to bet you, with the exception of Christian
other definition than that which the law provides. ethics, practically every subject that you encountered have
evidentiary principles in them. So evidence pervades the
So if you are asked in the Bar: “define evidence.” entire law. You can’t win a case unless you know how to
prove the case in the first place.
You are not allowed to use your own words. You are not
allowed to substitute a statutory definition with a mere Now, Evidence is the means sanctioned by these rules of
doctrinal definition that you might have read somewhere. ascertaining – it’s a means of ascertainment therefore.
So that is the first thing you have to remember about rule Para mabal-an ang mga pamaagi sa pagkahibalo. Means of
128 section 1. ascertainment.
So for purposes of greater or easier understanding, himay- To ascertain in a judicial proceedings – there are a lot of
himayon nato ang provision. proceedings diba?
Evidence is the means – when you say means it is a Naay judicial, naay mga quasi-judicial. There are legislative
methodology. It is the manner of doing something. It is a proceedings as well. So it hints to you that the rules of
mechanism. evidence are primarily applicable in judicial proceedings
only. In courts.
When you say means, it means as well that there is an end.
There is an end to be achieved by the use of evidence. And how do we define a court?
Evidence is the means sanctioned – meaning allowed, A court is that entity that is invested with a portion of the
permitted, prescribed - by the rules – and what rules are we judicial power.
talking about? – The rules of court.
Sir, what about a labor arbiter? Isn’t that a fact that you can
But when we say sanctioned by the rules, it does not file a case against the Labor arbiter? Isn’t that a fact that you
necessarily mean that the rules of court, specifically rules can file a complaint before a barangay, lupong tagapamaya?
128 – 133 are the sole repositories of the rules of evidence HLURB?
because scattered in the law are evidentiary rules and
principles. Dili lang tanan evidentiary rules makita nimo sa Do we not apply the rules of evidence before these so-called
rules of evidence. tribunals which are non-judicial in character?

Unsa may example, let’s go back to 1st year – obligations We apply but only in a suppletory character.
and contracts, article 1403, no. 2 of the civil code is the
statute of frauds. Which tells you that a contract has to be in So for judicial proceedings, the rules of evidence are
a certain form in order for it to be enforceable. To be able to uniform and the same. But with respect to non-judicial
prove it in court. But it is not a limitation to the validity of proceedings, the technical rules of evidence are not strictly
applied except in a suppletory character.
the contracts between the contracting parties for the simple
reason that contracts generally are perfected by mere Are there certain types of cases in Phil. law that you don’t
consent. also follow the rule on evidence even if the cases are filed
Consent is manifested by the making of the offer and the before the regular courts? Naa ba certain cases filed before
acceptance upon the thing and the cause which are the court and yet you don’t normally prove it in the same
constituted between the parties. way that you prove an ordinary court case.

So when the statute of frauds tells you that a contract has to Civil case, for example, what do you prove? – the elements
be in writing in order for it to be enforceable, it does not of your cause of action. Right, obligation, violation, damage.
affect validity. It simply affects its provability – your ability In a criminal case – you need to prove the elements of an
to sue upon such a contract in court in case there is breach. offense, if you are the prosecution.
Political law – consti – bill of rights. Fruit of the poisonous How do they prove their cases? – follow the rules on
tree doctrine. Is it not a fact that under article 3, you are evidence, specifically rule 130 and rule 132 (evidence in
given 2 rights that are very important; for example, like trial) so that’s how you apply them.
right of the people against unreasonable searches and
seizures. What follows that would be the right to privacy of Pero naay exceptions. Naay certain cases where the manner
communication and correspondence. of proof is different. The manner of proof is unlike the usual
manner of proof that you usually employ in ordinary court
Now what would be the effect if evidence, proof is obtained cases.
in violation of such rights provided under the bill of rights?
For example, small claims cases.

1
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Kinanglan pa ba in small claims cases that you go to court, product of an illegal search. Therefore fruit of the poisonous
present a witness, there has to be lawyer? tree.

In small claims cases, walay ing-ana. You don’t present So what’s the truth there?
evidence the same way that you present evidence in
ordinary cases. Pusher. User. Possessor. – that’s the truth. But because of
your mastery of the rules of evidence, the truth is
What else? Rule in the presentation of child witnesses. The disregarded.
child witness rule. Where a lot of things that happen in the
examination, the presentation of ordinary witnesses are not That’s effect. It enables the legal practitioners and parties to
applicable. We will go to that when we reach rule 130 a case to disregard the truth whether you like it or not that’s
witnesses and their qualifications; of testimonial witness. the profession you are seeking entry into.

So Evidence is the means sanctioned by these rules of “Where Truth, though might be sacred but you have to
ascertaining in a judicial proceeding the truth respecting a surround it with a bodyguard of lies.” - Judge Emmanuel
matter of fact Carpio.

Adto sa ta sa fact. Vincit Omnia veritas. – Truth conquers all but with
knowledge of all, the truth can be conquered.
What are the types of fact under the law?

In the law on pleadings, what are the types of fact? You


have: June 28, 2018 (Angel Deiparine)

1. Factum probandum (ultimate fact) – they are in the (diri gyud nag start ang June 28 na recording. I think naputol ang
form of legal conclusions or factual conlcusions. start, but part gihapon ni sa Section 1.)
And because you haven’t proven them yet, they
Section 1. Evidence defined. — Evidence is the means,
are necessarily hypothetical in nature.
sanctioned by these rules, of ascertaining in a judicial
So there is a hypothesis that you are trying to advance proceeding the truth respecting a matter of fact.
before the court, which can only be proven by what we call
by factum probans or evidentiary facts
The parties are actually encouraged to undergo stipulations,
2. Factum probans (evidentiary facts) – will be the admissions of facts. In fact, during pretrial conference in a
facts that are referred to under rule 128 section 1. criminal case, the accused can make a confession. Maybe,
pursuant to what we have known to be PLEA
Remember the rule in civpro that when you make a BARGAINING AGREEMENTS.
pleading you have to intone it - statements of mere
evidentiary facts – dapat katong ultimate facts ka. O sige, akong angkunon ang akoang guilt but to a lesser
offense, provided, you will be lenient in giving me a
Now one word in rule 128 section 1, that defines evidence sentence. I plead guilty to a lesser offense, and maybe, for
puts me off a little bit. It’s misplaced. What word is that? – one, that falls within the ambit of probation. So,
Truth. probationable siya.

Truth in a legal document, do support itself. But what happens if the pretrial agreement that contains the
confession of the accused is unsigned? What will be the
Kanus-a pa nako na last nakita kanang word nga truth in a effect of that?
legal document? – The 1987 constitution, preamble. Which
we know is not a source of any right. Of course, unless reduced to writing and signed by him and
his counsel, such admission or confession that was made or
Just imagine truth being uttered in the same breath as love. entered during the pretrial conference cannot be used in
In a legal document. These ideals appear in the preamble evidence against the accused. We’ll go to that when we go to
because these are ideals to strive for. Admissions later on.
And so it makes me think when the framers of the rules of Even in a civil law, you have a lot of evidentiary principles.
court, decided to define evidence in that manner – to
ascertain the truth respecting a matter of fact – they are  Statute of Fraud which limits the ‘provability’ of
talking about the truth in its idealized form. certain agreements. They must be in writing under
Article 1403(2) of the Civil Code. It’s not a requirement
Kay ngano?
for the validity of contracts but rather it limits your
That the rules of evidence is not really a means to ascertain ability to bring an action in court in order to enforce
the truth but rather mastering the rules of evidence will your rights pursuant to a breach of contract. Kay
enable you to disregard the truth. nganong wa nimo gisulat? How does one prove it?
How else does you go tell the breaching party to give
(Example ni Sir; Meet Me in St. Gallen; mga wala kita, one- you what he contracted to give under the contract?
half sa kinabuhi mawala)
 Damages
Guy caught possessing shabu after being frisked by police
officers. Making him possessor of illegal substance, violative There’s also a requirement of proof to certain
of the comprehensive drugs act. classes for damages. Sa mga nastudyante na nako
under Torts and Damages, you know that with
What’s the truth in that situation? That guy caught
respect to actual damages there’s a requirement
possessing shabu.
that it must be proven or substantiated by proof of
But he takes the best lawyer available, mastered the rules of pecuniary loss.
evidence, etc. and sets the guy free. Because that is the

2
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Nabanggan imong sakyanan, imong gipaayo. What’s the difference between a perpetrator below
What’s the proof of pecuniary loss there? THE 9 years of age at the time of the commission of the
RECEIPT. No receipt, no payment of actual offense and a perpetrator between the ages of 9-15
damages. to be exempt from criminal liability?

But to other forms of damages: moral, exemplary, We know for a fact that if the perpetrator is below
nominal, temperate, liquidated… No proof of 9 years of age, he is exempt from any criminal
pecuniary loss is actually required. liability. But if the perpetrator is between 9-15
years of age, he will only be exempt from criminal
That is evidentiary in nature because it tells you liability if he acted without discernment.
what the manner of proof is in order for you to be
What about a perpetrator below 9 years of age who
entitled to these certain forms of damages.
acted with discernment? Answer: It doesn’t matter
if that kid acted with discernment, because the law
 Res ipsa loquitor conclusively presumes him to be incapable of
That is evidentiary inasmuch as it creates a
discernment by reason of immaturity. It doesn’t
presumption. In English, ‘the thing speaks for
matter. You can’t even prove na he acted with
itself.’ discernment.

It is illustrated in one of my favorite case in all the In corollary, the case of Jarco Marketing vs Court
law. Sa mga wala pa nako na estudyante, wala mo of Appeals, the Supreme Court said that a child
kabalo ani but my favorite case in all of the law is below 9 years of age is incapable of contributory
Republic vs Luzon Steevedoring, it’s so simple, it negligence. Those are conclusively presumed facts.
explains res ipsa loquitor immediately.
In the same vein, a child below 9 years of age is
incapable of discernment, the same is incapable of
Ani, BRIDGE. BARGE. BANGGA. Ka kinsang sala? contributory negligence. Tell that to my son. *nag
Who’s fault was it? The bridge? Impossible nga sa story siya about sa iyang son nga naghatag sa iyang
bridge, because it is not a moving object. Dili mana classmate ug 50 pesos because gi dukol daw niya. Lack
ga lihok. Stationary. So, res ipsa loquitor. Who is of discernment? Bribery.
negligent? The barge. It cannot be the bridge.
That’s res ipsa loquitor. It now raises a  Two-witness Rule in Treason
presumption that the defendant was negligent It’s the law that mandates the quantity of evidence
because the facts are such that it cannot be caused you need to present. Two witnesses attesting to the
by anyone else. same overt act that constitutes treason.

Example:
Section 2. Scope. — The rules of evidence shall be the same
You go to the hospital. You wanted to get an in all courts and in all trials and hearings, except as
appendectomy. But when you went home, you otherwise provided by law or these rules.
went home with a vasectomy. Res ipsa loquitor. The
thing speaks for itself. Who’s negligent there? Going back to Civil Procedure, Section 4, Rule 1 of the Rules
Alangan naman ikaw, you have no control over the of Court, the Rules does not apply to election cases, land
instrumentality that caused you damage. registration, cadastral, naturalization and insolvency
proceedings, and other cases not herein provided for, except
 Presumption of Negligence in vehicular accidents by analogy or in a suppletory character and whenever
practicable and convenient.
Do you know that when you are found to be
violating a traffic ordinance at the time of an Remember, when you talk about practicability, it’s not the
accident, you are automatically presumed same as practicality. Lahi na sila na terms.
negligent. When you say ‘practicable’, mabuhat ba siya? When you say
‘practical’, ang pangutana dra, sayon ra ba siya? There’s a
Like, nakabangga ka, you weren’t wearing a big difference between the two. Do not be misled or
seatbelt. Or, nakabangga ka, wala kay lisensya. confused.
There’s a presumption of negligence there even if
you were quite careful. Now, just to correlate with the phrase ‘in a judicial
proceeding’, this means we use the law of Evidence in
And when there’s a presumption of law that judicial proceedings as a general rule. But when a
applies, it actually shifts the burden of evidence to proceeding is administrative or quasi-judicial in nature, the
the other party to disprove. Because you are now Rules on Evidence are not strictly applied.
presumed to be negligent, the plaintiff does not
even have to prove that you were negligent. That’s Now we need to recall what happens in labor cases, if an
the effect. Therefore, that’s evidentiary. employee files a complaint for illegal termination against
the employer, and you’re the lawyer. Do you expect to bring
Nag motor ka, wala kay helmet. Negligence. You a witness in? Do you cross examine witnesses before the
are violating a traffic violation at the time of labor arbiter in a case for illegal dismissal? Answer: NO. The
collision. Rules of Evidence are not strictly applied in labor tribunals.

Nag helmet ka, wala kay motor. Aw, buang ka. In the case of Cathay Pacific vs NLRC, the Rules of
(HAHAHAHAHA FUNNY SI SIR!) Evidence prevailing in courts of law or equity are not
always controlling. It’s not even necessary that affidavits
 Criminal Law- Presumptions Relating to and other documents presented conform to the technical
Discernment, An Exemption from Criminal rules of evidence, as the court maintains a liberal stance
Liability regarding procedural deficiencies in labor cases.

3
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

If that’s the case, unsa diay na diha? Atik atik na proof initially has failed to discharge that burden. Therefore,
proceedings? In Hornales(?) vs NLRC, the SC said labor the defendant wins. That is the doctrine of equipoise.
proceedings are non-litigious in character. The technicalities
of law and procedure, and the rules obtaining in the courts But in criminal cases, there is no equipoise. Ngano? Again,
of law shall not strictly apply thereto, and the hearing we go back to that imaginary scale of justice. On one hand
officer may avail himself of all reasonable means to you have the prosecution, on the other hand, you have the
ascertain the facts of the case. It may be non-litigous, but accused. Wala pa nag sugod ang kaso, ing ana na ang scale
there is still that requirement of ascertaining the facts. There (refers to imbalance scale, leaning towards the accused). Why?
is still that requirement of determining which party upon Because he is entitled to the presumption of innocence that
the merits is entitled in the case. can only be defeated by prosecution by proof beyond
reasonable doubt. So, in case of doubt, who wins the case?
According to the SC, as well, in the case of Kanlaon vs The accused, regardless of whether he is the worst rapist or
NLRC, kana daw requirement of due process when it comes the most damak na drug addict in the whole world, because
to labor tribunals, for example, is satisfied, at the very least, of that presumption of innocence.
when the parties are given an opportunity to submit
position papers. 5. Finally, in civil cases, there is no such thing as a
confession, whereas in criminal cases, the concept
Criminal vs. Civil Cases of confession is perfectly applicable.

In judicial proceedings, remember, it could either be Take note that the Rules of Evidence is procedural in
criminal or civil in nature. character which means that they may be given retroactive
effect, diba? Laws shall have no retroactive effect, except
So how do you distinguish between evidence in civil cases those exceptions provided to you by Maam Galas when you
vs. evidence in criminal cases. are in first year, including those rules that are procedural in
character.
1. In civil cases, the party having the burden of proof
must prove his claim by a PREPONDERANCE OF If you recall the case of Velayo vs Shell, SC ruled that the
EVIDENCE, while the quantum of proof required law on human relations, Articles 19 to 36 of the Civil Code
in criminal cases would be PROOF BEYOND beginning in abuse of rights until prejudicial questions--- it
REASONABLE DOUBT. What’s our basis here? It’s can be given retroactive effect precisely because it does not
the Constitution itself that tells you that’s the affect vested rights.
quantum of proof required.
2. In civil cases, an offer of compromise is not an Naa sad ba vested rights in the Rules of Evidence? The
admission of any liability. It is not admissible in answer is NO. Any evidence inadmissible according to the
evidence against the offerer. In criminal cases, an laws in force, at the time the action accrued, but admissible
offer of compromise by the accused may be according to the laws in force at the time of the trial, is
received in evidence as an implied admission. receivable.

Let me give you an example of an implied admission, A Let us suppose, at the time of the filing of the action, there’s
raped B. B sued A for rape. A, who raped B, offered a law saying that it is inadmissible to present in court a cctv
marriage. That is considered an implied admission of guilt footage, why, because it violates the right to privacy kanang
because that is analogous to an attempt to compromise. mga cctv. So, gi file-an gihapon ug kaso tong accused. But
‘Ayaw nlng ko file-i ug kaso, pakaslan nlng tika’- that’s a based on the law, at the time when the action accrued, that’s
compromise. supposed to be inadmissible in evidence. But during the
time the trial of the case was underway, the law was
3. What else? In civil cases, the concept of repealed. Can the accused complain that before, the time of
presumption of innocence does not apply. But the filing of the action, inadmissible na. Unya karon, ma
constitutionally speaking, the accused (in criminal present na? He can complain, diba?
cases) enjoys the presumption of innocence under
the 1987 Constitution. Proof vs. Evidence
4. We will learn later on that in Rule 131 that in civil
cases, the doctrine of equipoise or equiponderance Now, what’s the difference between proof and evidence?
of evidence applies, but in criminal cases,
There are subtle differences, except that these terms are
technically speaking, there is no such thing as
often used interchangeably.
equipoise.
Proof is actually the effect when the requisite quantum of
Imagine that in a litigation, there is always that imaginary
evidence of a particular fact has been duly admitted and
scale. An imaginary scale of justice. Kana bitaw si Lady
given weight. Evidence, on the other hand, is the mode and
Justice nag gunit ug timbangan. On one side, you have the
manner of proving such facts in judicial proceedings.
receptacle for the plaintiff or prosecution. On the other side,
you have the receptacle for the defendant or the accused. Proof, therefore, is the probative effect of evidence.
Evidence is supposed to be considered as the means.
Now, in the course of trial, mauna ug present ang evidence
sa plaintiff, diba? Plaintiff man gyud mauna. So every piece Let’s revisit Section 1, again.
of evidence that is credible and admissible, ginabutang na sa
iyang receptacle. So, sa sugod bug-at ang sa plaintiff. When Section 1. Evidence defined. — Evidence is the
the defendant’s turn comes, he also puts in his receptacle his means, sanctioned by these rules, of ascertaining in
own evidence that is credible and admissible. Finally, the a judicial proceeding the truth respecting a matter
court can now determine kung kinsa mas bug-at. Kung of fact.
kinsa mas bug-at, mao nay mudaog. But what happens if
Take note that under the law on pleadings, there are two
they are equal. Even gyud siya. Who should win? Answer:
types of FACT:
the defendant should win. Why? If the evidence of the two
parties are equally balance such as there is equipoise 1. Factum Probandum;
already, it means that the party who bears the burden of 2. Factum Probans.

4
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Factum Probandum or Ultimate Facts are principal, Take note that every evidentiary question involves the
determinate and constituted facts upon the existence of relationship between the factum probandum and the factum
which the plaintiff’s cause of action rests. probans.

They do not refer to the details of probative matters or Exercise: Give me a factum probandum.
particulars of evidence by which these material elements are
to be established. Under the law on pleadings, remember, Student: A owes B 10,000 pesos to be collected on a certain
only ultimate facts are to be required to be stated. They date.
consists in propositions still to be established. Therefore,
Sir: What date?
ultimate facts are necessarily hypothetical.
Student: Today. June 28.
Factum Probans or Evidentiary Facts/ Intermediate Facts
are facts which are necessary for the determination of Sir: If I were to make a factum probandum based on what
ultimate facts. you said, I would say, “A is obliged to pay B the amount of
Php10,000 which is due and demandable on a certain date.”
They are premises upon which conclusion of ultimate facts
Kung dili man gud due and demandable, e di premature
are based. They are brought forward as a reality to convince
imong demand.
the tribunal that the factum probandum is also real.
So, how do you prove that? That A is obliged to pay B
As law students, how do you answer exams? You use
Php10,000. What is your factum probans?
SYLLOGISMS, by which, is supposed to bring forth a
proposition; then state your minor premise; major premise; Student2: A promissory note, sir.
and then, conclusion.
Sir: Would there be any difference in your ability to prove
For example: Is the contention of plaintiff tenable? factum probandum had there been no promissory note or
You answer either yes or no. The contention of any other contract signed by A and B.
plaintiff is tenable or untenable. That is your
conclusion. Answer: Oral testimony.

What is your premise? You have to state your


minor premise. The applicable law is your minor
premise, right? Then, your major premise is how 6/28/2018 (Anton Maligad)
the law is applicable based on the facts. Finally,
Evidence in Civil Cases vs. Evidence in Criminal Cases
you have the conclusion. So you have these two
premises, then you have the conclusion. Civil Cases Criminal Cases
REQUIRED EVIDENCE
Asa didto ang factum probandum? Ug asa didto
Preponderance of Evidence Proof beyond reasonable
ang factum probans?
is required doubt is required
Factum Probandum, katong giingon nimo na dili OFFER OF COMPROMISE
tenable. That’s a conclusion; that’s a proposition. An offer of compromise is In criminal cases an offer of
How do you prove a proposition? By placing not an admission of any compromise by the accused
premises. What’s your major premise? How the liability. may be received in
law is applied to the facts. Katong facts nato, mao evidence as an implied
na imong evidentiary. admission.

They are facts which are necessary for the determination of Example: IMPLIED
the ultimate facts. They are premises upon which ADMISSION OF GUILT
conclusions of ultimate facts are based.
A raped B. B offered
They are brought forward as a reality to convince the marriage. Don’t file a case
tribunal the factum probandum is also real. against me because I will
Take note that under Rule 8, Section 1, every pleading shall marry you.
contain in a methodical and logical form, a plain, concise
and direct statement of the ultimate facts on which the party That is considered as an
pleading relies for his claim or defense, as the case may be, implied admission of guilt,
omitting the statement of mere evidentiary facts. because that is analogous to
an attempt to compromise.
Factum Probandum Factum Probans
Ultimate facts Evidentiary or intermediate PRESUMPTION OF INNOCENCE
facts In civil cases, the concept of Concept of presumption of
Proposition still to be Material evidence in the presumption of innocence innocence applies.
established proposition making factum doesn’t apply.
probandum merely Constitutionally speaking
hypothetical. It is already in the accused enjoys the
existence. presumption of innocence
It is the end to be achieved It is the means to achieve under the 1987
such end Constitution.
Mao lang required under You have to omit them DOCTRINE OF EQUIPOISE
the law in pleadings when you file your Doctrine of Equipoise Doctrine of Equipoise
pleadings applies doesn’t exist in criminal
law.
The "equipoise doctrine" is
the rule which states that

5
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Civil Cases Criminal Cases Factum Probandum Factcum Probans


when the evidence of the (Ultimate Facts)— (Evidentiary Facts)—
prosecution and the defense
are so evenly balanced the to be established. hypothetical.
appreciation of such
evidence calls for tilting of Proposition, which is still to They are brought forward as
the scales in favor of the be established. a reality in order to convince
accused the tribunal that a factum
Under the law on pleadings, probandum is ___?
CONCEPT OF CONFESSION only ultimate facts are to be
There is no concept of There is a concept of stated omitting the
confession. confession evidentiary facts.

They consist in oppositions


Take note that the Rules on Evidence are procedural in still to be established and are
character, which means that they may be given retroactive therefore hypothetical.
effect.
“It is the end of which”
GR: The law shall not have a retroactive effect.

XPN: Exceptions given by the Civil Code and includes


procedural laws. “It is the means of which”

In corollary to that, are there vested rights in Rules of


Evidence? NO Lecture on how to answer questions in law school: Use of
syllogisms.
Supreme Court ruled that as to the law on Human Relations
(Article 19-36 of the Civil Code) couldn’t be given 1.) Tenable/Untenable—conclusion (ultimate
retroactive effect because there are vested rights. facts)
2.) Minor premise—the applicable law
But as to Rules of Evidence there are not vested rights. Any (evidentiary facts)
evidence inadmissible according to the laws enforced at the time 3.) Major premise—how the law is applicable
that the action accrued, but admissible according to the laws based on the facts (evidentiary facts)
enforced at the time of the trial is receivable. 4.) Conclusion to your answer
Example: Let us suppose that at the time of the filing of the
Every evidentiary question contains the relationship
action there is a law that states that it is inadmissible to
between the ultimate facts and the evidentiary facts.
present in court CCTV footage. Because according to the
law the CCTV footage violates the rights of privacy. Exercise:
So, a case was still filed against the accused. Give me a factum probandum?
But during the time of the trial of the case the law was Student: A is obliged to pay B the amount of Php 10,000 to
repealed. Can the accused complain? be collected on June 29.
NO, he cannot complain. The evidence shall be presented in Atty E: How do you prove that? What is your factum
court. probans? What is your factum probandum?
“Proof and Evidence are not the same, though they are Student: An example of a factum probandum for such kind
usually used interchangeably” of situation would be a promissory note.
Proof—is the effect when the requisite quantum of evidence Atty E: What if there is no Promissory note, how do you
of a particular fact has been duly admitted; Proof is the prove the existence of any contract signed between A and B?
probative effect of evidence. What would be your factum probans to prove that A is
obliged to B?
Evidence—is the mode or manner of presenting facts in a
judicial proceeding. Evidence is the means. Student: Oral Testimony (Testimonial Evidence)
Rule 128; Section 1: Evidence is the means sanctioned by Atty. E: Precisely. There has to be some connection or some
these rules of ascertaining in a judicial proceeding the truth relation between your factum probans with the proposition
respecting a matter of fact. that you want to prove which is your factum probandum.
Two Types of Fact under the Law on Pleadings: So for example, your factum probandum is: A killed B. Your
factum probans is a picture taken during the wedding of B
Factum Probandum Factcum Probans
and C. What is the connection?
(Ultimate Facts)— (Evidentiary Facts)—
In other words, the relationship between factum
Principal, determinate, and Facts, which are necessary probandum and factum probans is what you call relevancy.
constitutive facts upon the for the determination of
existence of which the ultimate facts. The relationship must be in some way that would describe
plaintiff’s cause of action the factum probans as advancing the proposition that is
rests. They are premises by which factum probandum.
the conclusions of ultimate
They do not refer to the Question of Fact vs. Question of Law:
facts are based.
details of probative matters Callo vs. Chief of National Police (Nov 21, 2002) [look for
or particulars of evidence by Material evidencing the case]
which these are evidence are proposition which is

6
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

judicial evaluation in the guidelines provided by the Rules


There is a question of fact when doubt or difference arises of Court.
as to truth of facts
2 Basic Requisites of Admissibility (Rule 128; Section 3):
There is a question of law as to what is the law is as to a.) Relevancy—is such a relation to the fact in issue as
certain facts to induce a belief of its existence or non-existence
of a fact.
Atty. E: Is it illegal to smoke by the road outside the school?
It is. That is a question of law, because the issue can be b.) Competency—and evidence is competent if the
answered solely by what the law says. law or these rules of court do not exclude such
evidence.
But if the question is:

Is A liable for violating the law for smoking in public Section 3 of Rule 128 is directly derived from the Actions of
places? Admissibility according to Wigmore. The real Wigmore!

That is a questions of fact, because you need to prove it with


certain facts.
June 28, 2018 – April Sillada
Example:
I share the opinion of my former mentor before, my teacher
Assume that there is a law that would mandate that people in International Law when I was taking up my masters – the
below 5 feet 4 inches tall should be given free Php present presidential spokesman, Harry Roque.
5,000,000.00 each.
Part of our discussion was this, the Human Security Act. So
So, I’ll be given Php 5,000,000.00 free because I am below 5 his bone of contention is this word: “suspected” of the crime
feet 4 inches. of terrorism. So the moment that you are suspected, all that
the police operatives have to do is to ask for a written order
But, in determining whether or not the person is qualified to from the Court of Appeals.
receive the Php5m what is it?
So what is the quantum that is required? No need for
It is a question of fact. probable cause. Diba for the issuance of a search warrant or
warrant of arrest, probable cause. Here, a mere suspicion.
But to determine that the standard of who is qualified to
And so according to him, it dilutes the right to privacy. And
receive the Php5m.
I agree. It dilutes RA 4200 – the Anti-Wiretapping Act.

And in addition to that, under RA9372, the Human Security


That is a question of law, because it wasn’t applied to a Act, even the law on the secrecy of bank deposits is affected.
factual situation—it was just the law. Because if you are a suspected terrorist, the law enforcement
agencies can inquire into your bank deposits on the guise
Difference of Question of Fact vs. Question of Law: that you are suspected of committing terrorism.

Question of Fact Question of Law And you know how the Human Security Act defines
Apply the Law on Evidence Apply the law terrorism? It defines crimes that could be committed by a
Appeal is made to the Court Appeal is made directly to terrorist according to how these crimes are defined under
of appeals for pure the Supreme Court the Revised Penal Code, with the added element that the
questions of fact or mixed perpetration of these crimes is used in order to sow fear and
questions of fact terror among the populace. Mao ra na siya ang nakabutang
US Law: It is determined by US Law: It is determined by sa Human Security Act.
the jury the judge
So to my mind, the Human Security Act is a little bit too
simplistic, and it allows our enforcement agencies a lot of
liberty to inquire into the private lives of ordinary Filipinos.

For all we know, I’m already a suspected terrorist. And they


Section 3. Admissibility of Evidence—Evidence is
will inquire into my bank account and see that I only have
admissible when it is relevant to the issue and is not
excluded by the law or these Rules. Php7500. But my wife’s bank account is a different matter.
The joke I always make is that: You know what? Mag-asawa
When we talk about admissibility, the basic question to ask gud. Unitas personae – one person under the law. Our estates
is: are combined, which means na kung unsay ako, iya. Kung
unsay iya, iya ra.
Will the Court accept it as a viable proof of a particular
topic? Anyway, there’s also this case of Navarro v. CA. If the
communication is not private, its tape recording is not
Admissibility of evidence—answers the question where prohibited.
certain pieces evidence is to be considered by the court.
Also, take note of Article III, Section 12.
Weight/Probative value of evidence—answers the question
on whether the admitted evidence proves an issue by the Section 12.
quantum of evidence it is required.
1. Any person under investigation for the
Laymen’s term of probative value: Believability. commission of an offense shall have the right to
be informed of his right to remain silent and to
It is simple as that, thus particular evidence may be
have competent and independent counsel
admissible, but its evidentiary weight depends on the
preferably of his own choice. If the person cannot

7
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

afford the services of counsel, he must be Take note that relevancy is not the same as materiality.
provided with one. These rights cannot be waived Because material evidence is evidence which tends to
except in writing and in the presence of counsel. directly prove the fact in issue.

2. No torture, force, violence, threat, intimidation, or So for example, if you want to prove the existence of a loan,
any other means which vitiate the free will shall what would directly prove it? The promissory note is
be used against him. Secret detention places, material. If you want to prove the cause of death, the death
solitary, incommunicado, or other similar forms of certificate of the person is material. But again, it’s not the
detention are prohibited. same as relevancy.

To illustrate the difference between relevancy and


3. Any confession or admission obtained in violation materiality, I will always go back to the example of Dean
of this or Section 17 hereof shall be inadmissible in Inigo because it’s the best example.
evidence against him.
A was shot from a long distance right in between the eyes.
4. The law shall provide for penal and civil sanctions Like who can do that? It’s either a very lucky shot, or you
for violations of this Section as well as are a really skilled shooter. B was the main suspect and he
compensation to the rehabilitation of victims of was prosecuted for the crime. During the presentation of
torture or similar practices, and their families. evidence, the fiscal presented testimony trying to prove that
B was a former Olympic gold medalist in long distance
shooting.

What is this Section 17? That’s the right against self- Q: Is the evidence material? Does it directly prove that B
incrimination. shot A?

Section 17. No person shall be compelled to be a witness A: It does not tend to prove the fact in issue of whether or
against himself. not B killed the victim. Because the issue here is not about
the Olympic record of the accused.

Take note also of RA 7438 – the rights of persons arrested, Q: However, does such evidence have a tendency to prove
detained, or under custodial investigation. that B is the killer due to his ability as a really sharp
shooter?
Section 2. Rights of Persons Arrested, Detained or Under
Custodial Investigation; Duties of Public Officers. – A: Of course. Yes, the evidence may not be material but it is
still relevant. It has a tendency in reason to establish the
(a) Any person arrested detained or under custodial probability or improbability of the fact in issue.
investigation shall at all times be assisted by counsel.
Stated otherwise, would it be more likely that it is B who is
(d) Any extrajudicial confession made by a person arrested, the shooter, given his Olympic record, than anybody else? If
detained or under custodial investigation shall be in the answer is yes, then that fact is relevant. It makes things
writing and signed by such person in the presence of his more likely rather than unlikely.
counsel or in the latter's absence, upon a valid waiver, and How do we distinguish between materiality and relevancy?
in the presence of any of the parents, elder brothers and
sisters, his spouse, the municipal mayor, the municipal Material Relevant
judge, district school supervisor, or priest or minister of the evidence evidence
gospel as chosen by him; otherwise, such extrajudicial Evidence is offered to prove Evidence has the tendency
confession shall be inadmissible as evidence in any or disprove a fact in issue in reason to establish the
proceeding. probability or improbability
of the fact in issue
Direct proof May either be direct or
So fruit of the poisonous tree lang gihapon ang iyahang circumstantial
take, in other words.
Self-evident May require reasoning and
inference
Material evidence is always Relevant evidence is not
Section 4. Relevancy; collateral matters. — Evidence must relevant always material.
have such a relation to the fact in issue as to induce belief in
its existence or non-existence. Evidence on collateral
matters shall not be allowed, except when it tends in any Three Kinds of Admissibility
reasonable degree to establish the probability or
improbability of the fact in issue. (4a) 1. Multiple Admissibility

What is a relevant evidence? Evidence that is plainly relevant and competent for two or
more purposes will be received if it satisfies all
 It is evidence which has a tendency in reason to requirements prescribed by law in order that it may be
establish the probability or improbability of the fact admissible for the purpose for which it is presented, even if
in issue. it does not satisfy the other requirements for admissibility
 It is evidence tending to prove or disprove a for other purposes.
material fact.
2. Conditional Admissibility
 It is evidence having a tendency to make the
existence of any fact that is of consequence to the Evidence appears to be immaterial but it is admitted by the
determination of the action more or less probable court subject to the condition that its connection with
than it would be without the evidence. another fact subsequent to be proved will be established.
Otherwise, such fact already received will be stricken off the
Relevancy vs. materiality record at the initiative of the adverse party.

8
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

3. Curative Admissibility therefore, I’m looking at this piece of paper as an object, not
as a document.
Evidence that is otherwise improper is admitted despite the
objection from the other party to contradict improper But what if what matters to me is what is written in this
evidence presented or introduced by the other party, to piece of paper – unsay nakasulat. And therefore, it becomes
cure, contradict, or neutralize such improper evidence. a document.

Curative Admissibility Now does it mean that in a court of law, I can only present
this as a document? And I cannot present this anymore as
This curative admissibility, I was able to observe personally, an object? Because something just happens to be written in
applied to a case that I handled before. The case that I this piece of paper? That, my friends, is the concept of
handled was covered by the Rules on Summary Procedure. multiple admissibility. It can be presented in court for
Remember that under the Rules on Summary Procedure, different purposes and as different types of evidence.
kung wala sa affidavit, it will not be taken up. If it is
evidence that was not previously identified, or maybe Bar Exam 2005 Question:
hinted at, in your affidavits, it cannot be presented.
May a private document be offered and admitted in
But being the lawyer that I am, I tried to present evidence, both as documentary evidence and as object
inadmissible evidence. It’s an unfair surprise against my evidence?
opponent. Unfair surprise for the simple reason that if I
present evidence that was not previously identified, he will Answer:
not have the opportunity to refute it.
(That is precisely what the law on multiple admissibility of
And so my opponent objected. Grabe objection niya, halos evidence is all about.) A private document may be offered
patyon ko niya sa objection. And then the court asked me to and admitted in evidence, both as documentary evidence
comment on his objection. And then the same bullshit that I and as object evidence. The document can also be
always do to try to defend against an objection, I say “Your considered as an object for purposes of the case. Objects as
Honor, this is newly discovered evidence. It is allowed, evidence are those addressed to the senses of the court.
Your Honor, because it is relevant to the fact in issue. It Documentary evidence consists of writings or any material
directly proves that the accused is liable to my client. And containing letters, words, numbers, figures, symbols, or
remember, Your Honor, that this is not supposedly a battle other modes of written expression offered as proof of their
of technicalities, but rather, cheche bureche whatever.” contents.

True enough, the judge was impressed. Nadala sa akoang Hence, a private document may be offered as object
bulatik. Pero naningkamot kog argue diba. And then he evidence in order to establish certain physical evidence or
allowed me to present supposedly inadmissible evidence. characteristics that are visible on the paper and, writings
He told the other party. “Don’t worry counsel because that comprise the object.
under the principle of curative admissibility of evidence,
Bar Exam 1994 Question:
you are also allowed to present similarly inadmissible
evidence to counteract the evidence that I’m allowing right At the trial of Ace for violation of the Dangerous Drugs Act,
now.” the prosecution offers in evidence a photocopy of the
marked 100-peso bills used in the buy bust operation. Ace
My god, ka-bright sa judge. He knows about the curative
objects to the introduction of the photocopy on the ground
admissibility of evidence. Only to find out that the judge is a
that the Best Evidence Rule prohibits the introduction of
book author in Criminal Procedure and Evidence – si Judge
secondary evidence in lieu of the original.
Alejandro Ramon C. Alano, from the Municipal Trial Court
of General Santos City. A. Is the photocopy real or object evidence, or is it
documentary evidence?
Multiple Admissibility
B. Is the photocopy admissible in evidence?
There’s a lot of examples on multiple admissibility.
Now, a little bit about the Best Evidence Rule. If you are
 Later on, we will learn in Rule 130, Section 37 going to present documentary evidence, the general rule is
about the exception to the hearsay rule called a you have to present the original. You cannot just present a
dying declaration. An example of how multiple mere photocopy. So if you’re presenting a document, the
admissibility can apply there is that even if a Best Evidence Rule will be applicable. But if you’re
statement does not qualify as a dying declaration, presenting something else, it does not apply.
it may be admitted as part of the res gestae. Dili
lang nako na i-explain karon because it will be So if your answer in Letter A is that it is documentary
jumping the gun, so to speak. evidence, in all probability, your answer in Letter B is that it
is not admissible because it violates the Best Evidence Rule.
 Tangible evidence may be received as either But if your answer in Letter A is that it is a mere object,
documentary or object evidence, or both. Writings therefore it will be admissible in Letter B because there’s no
may be inadmissible under the Best Evidence Rule such thing as Best Evidence Rule for objects.
but they will still be admitted as object evidence to
prove the existence or condition of the object. Answer:

A. It is real or object evidence because it is not offered


(Sir held up a class card.) What’s this? It’s a class card. What as proof of its contents but as tangible proof, object
is the color? Green. Can you tell me the shape? Rectangle. of the illegal sale of dangerous drugs.
Does it matter to me, when I asked you those questions, B. Yes, the photocopy is admissible in evidence
what’s written here? That it purports to belong to a certain because the Best Evidence Rule does not apply to
Lim, Jennifer Marie? Does it matter to me? No, because my object evidence.
questions were about the color and the shape. And
Theories of Curative Admissibility

9
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

1. American Rule For example, A is accused of killing B. And then A, instead


of saying that he’s guilty or not guilty, he’s simply saying “I
The admission of such incompetent evidence without wasn’t even there when the crime took place. So how could
objection by the opponent does not justify such opponent I be guilty?”
from rebutting it by similar incompetent evidence.
A denial of course is negative evidence. It is considered by
So there’s no justification. If it is incompetent, you cannot jurisprudence to be a very weak form of defense, and can
present incompetent evidence as well to counteract it. never overcome a positive or affirmative testimony,
2. English Rule particularly when it comes from the mouth of a credible
witness.
If a party has presented inadmissible evidence, the adverse
party may resort to similar inadmissible evidence. And informally, let me say that there is a third type: a
negative pregnant evidence. In civil procedure, we know
3. Massachusetts Rule this to be negative pregnant admission. It’s a form of a
negative expression which carries with it an affirmation or
The adverse party may be permitted to introduce similar at least an indication of some kind, favorable to the adverse
incompetent evidence in order to avoid unfair prejudice party. It is a denial pregnant with an admission of the
caused by the admission of the other party’s evidence. substantial facts.
What should determine the application of the rule of
curative admissibility?
July 5, 2018 - Benrich Tan
1. Whether the incompetent evidence was seasonably
objected to; and Let’s go back to positive evidence, where a witness affirms
2. Whether, regardless of the objection, the admission that a fact occur or did not occur.
of such evidence shall cause a plain and unfair
prejudice to the party against whom it is admitted.  Example: A person got hit by car. At the trial, the
witness was asked if the headlight of the vehicle was
on.
July 5, 2018 – April Sillada o Positive evidence: If his answer was ‘yes’ or
‘no’, because it affirms the existence of a fact,
Different Types of Evidence
which tells you that the headlight was on or
Material vs. immaterial off.

 Material evidence: That type of evidence which o Negative evidence: If the answer was ‘I did
directly proves the fact in issue not notice’, because he did not see or know the
 Immaterial evidence: Something that has no occurrence of a fact.
bearing whatsoever in the matter proving the fact
in issue.  Let’s compare this with alibi (also a
negative defense). If your defense is
an alibi, then you’re saying that you
Competent vs. inadmissible
weren’t there, then how could you
 Competent evidence: Evidence that is allowed by have hit him.
the law or the Rules of Court
 Inadmissible evidence: Those that are excluded by Negative pregnant is a form of negative expression which
the law or the Rules of Court. carries an affirmation. Thus, it is a denial pregnant with an
admission.

Relevant vs. irrelevant  Example. “Have you ever smoked marijuana?”

 Relevant evidence: Evidence that has such a o Affirmative answer: “Yes, I’ve smoked
relation to the fact in issue as to induce belief in its marijuana”, or “No, I never smoked
existence or non-existence. marijuana”
 Irrelevant evidence: One that does not advance the o Negative pregnant: “I never smoked
proposition that you wish to prove. It is one that marijuana in school”. This implies that I
does not, in any way, make the fact in issue any smoked marijuana outside school.
less probable or improbable in proving things.

As to the need to infer or presume


Positive vs. negative

When you talk about positive and negative evidence, you’re Direct Evidence Circumstantial Evidence
talking about whether evidence affirms or negates. Establishes the existence of Does not directly prove the
a fact in issue without any fact in issue, but merely
So for example, when you talk about positive evidence, it is aid of inference or provides logical inferences
when the witness affirms that the fact occurred or did not presumption. that such fact really exists.
occur. While in negative evidence, on the other hand, is  No need to infer or  You still need to put
when the witness avers that he did not see or know the presume from the one and one together.
occurrence of a fact. He’s simply saying that “I do not evidence shown that
know.” it’s another fact
The witness testifies Each proof is given facts
A perfect example of that would be the oft-abused term
directly of his own and circumstances to which
“alibi.” In its simplest form, alibi is simply that you’re
knowledge as to the way the court may infer or
saying “I was elsewhere.”
facts are to be proved. connect facts which

10
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Direct Evidence Circumstantial Evidence


 Example: He knows it reasonably follow according o However, this could be circumstantial
to be true, because he to the common experience evidence.
saw it happen. He of mankind.
knows that it smells,  In appreciating  Rule 133, Section 4. Circumstantial evidence, when
because he smelled it. circumstantial sufficient. — Circumstantial evidence is sufficient for
evidence, you are conviction if:
appreciating the
relevancy of evidence. a) There is more than one circumstances;
 Going back to Section 1 b) The facts from which the inferences are derived are
of Rule 128: “Evidence proven; and
on collateral matters c) The combination of all the circumstances is such as
shall not be allowed, to produce a conviction beyond reasonable doubt.
except when it tends in
any reasonable degree The following is an example which teaches us:
to establish the
probability or  The distinction between circumstantial evidence from
improbability of the direct evidence
fact in issue.”  When circumstantial evidence is sufficient to warrant a
o When we talk conviction; and
about the  When circumstantial evidence advances the proposition
second part of (or when is it relevant)
the sentence,
we’re actually FACTS:
using common
sense on that. X was murdered, and Y was the primary suspect. X and Y
had a long-standing grudge, to the point they were seen
1. Direct Evidence altercating in a public setting at some point prior. Y was
reputed to be a gun-for-hire. However, there was no
 Proof of fact or point in issue that belief establishes the eyewitnesses during the shooting.
truth or falsity of the fact in issue, and does not arise
from a presumption. So in other words, it’s direct proof. The prosecution’s evidence was the testimony to prove:
You don’t need to infer the existence of other facts. It’s
just it, as it proves it directly. a) Y was at the vicinity during the scene of the crime. He
was inside the room where the victim was shot, and a
 Example: CCTV footage where accused is charged for person wearing a helmet with Y’s same height and built
theft. It directly proves the fact in issue, as it shows the was seen fleeing with a motorcycle from the scene of
accused stealing the objects. Thus, it proves the fact in the crime.
issue, in the form of object evidence (CCTV footage).
o But there was no one who could testify such,
 Take note that there are certain facts not susceptible of because there were no eyewitnesses.
direct proof, such as conspiracy. o The purpose for the prosecution’s evidence
was to prove opportunity, to place Y at the
o A conspiracy exists when two or more persons scene of the crime to prove that it was possible
come to an agreement concerning the that he was the one who shot X.
commission of a felony and decide to commit
it.  Possible, and not certain, because
o No one’s fool enough to produce their there was no eyewitnesses at the time
agreement into writing. Thus, you cannot when Y was shot.
expect direct proof of conspiracy, so
conspiracy can only be deduced by the acts of b) The animosity between X and Y
the perpetrator before, during and after the
commission of the crime, which are indicative o Such evidence was offered
of a common design of a certain action and o The purpose for the testimony of animosity
concurrence of sentence. was to prove motive, on which the grudge was
the reason why Y shot X.
2. Circumstantial Evidence
The accused’s defense was an alibi (negative defense, an
 Evidence not directly bearing on the fact in dispute, but inherently weak defense), in which Y was in a different
in various attendant circumstances from which the municipality at the time of the shooting. Y’s counsel
judge might infer the occurrence of a fact in dispute. presented witnesses placing him at the municipality.

 Example: Somebody was stabbed inside a house. A guy ISSUE:


came out of it with a bloodied shirt and knife, ergo, that Is evidence based on motive and opportunity material and
person killed that person. Correct? prove the fact in issue (whether Y shot X)? NO.

o In the matter of direct evidence, NO. RATIONALE:


Circumstances does not equal to him killing Direct evidence of the shooting would be the eyewitness
that person. It could have just been a account of the shooting or a photograph.
Halloween costume. Direct evidence would be
an eyewitness or photographic evidence that 1+1=2. “1” for them would be somebody fitting Y’s
shows him killing the person. description was there at the scene (opportunity) and the

11
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

other “1’ was that they had a history. That does not amount Tan-aw ug basketball and smoking. And ako naa ko sa
to 2. kuan... we have a porch at the compound where i can
directly watch the basketball game going outside across the
However, even if they were immaterial, they were still street.
relevant. The fact that Y had opportunity and motive were
collateral matters or circumstantial evidence on the fact in Then suddenly there is this motorcycle riding in tandem,
issue. Although they do not tend to directly prove the fact in went near the place where the person was standing and
issue, they have the tendency to establish the probability or then shot him point blank sa head.
improbability of the fact in issue, and thus, admissible.
I saw everything. And then its a basketball game LIGA so a
lot of people where watching. So right after he was shot,
However, Y was acquitted, because the prosecution’s
dagan tong mga kuan, it like happened in 3 seconds. You
evidence was merely circumstantial. It was inherently weak,
know what the people were doing? People looked up the
even though Y’s defense was also inherently weak. To
dead body instead of running away. People are not scared.
produce a conviction based on circumstantial evidence, the
We are more chismoso then afraid. (heheh) that is what we
sum of the circumstances must prove the fact in issue
are as Filipinos.
beyond a reasonable doubt. The argument of the defense
was that the presumption of evidence must prevail, thus Y And so let us suppose in the same example that i gave you,
was acquitted. the first example that i gave you. Naay nag-sumbaganay. A
sues B. And so gipatawag mo, mga 3rd year Manresa kay
Remember, motive and opportunity are mere circumstantial kamo daw nananaw atong sumbagay. So nagsugod kang
evidence They are not considered to be material or direct student 1, student 2, student 3 and so on.
evidence.
Everything is testimonial evidence attesting to the same fact.
On another note, negative evidence is only defeated by Diba, so that is ( ??? ) of evidence. evidence of the same kind
positive evidence. Since the defense was alibi, and since no and character tending to prove the same point.
witness during cross-examination can say that they saw Y
Whereas corroborative evidence, additional evidence of a
shoot X at the scene of the crime, negative evidence is still
different kind and character tending to prove the same
produced from the testimony. Also, between the
point. Ok?
prosecution’s negative evidence and the accused’s negative
evidence, the latter prevails, due to the constitutional Corroborative evidence, is deemed necessary only when
presumption of innocence. there are reasons to suspect that the witness did not tell the
truth or that his observations where inaccurate.
As to originality
In People vs Ayupan febuary 13,2002, according to the SC,
Primary or Best Evidence Secondary or Substitutional
Evidence Corroborative evidence is necessary only when there are
Evidence which the law Inferior or substitutionary reasons to suspect that the witness bent the truth, or that his
regards as effecting the evidence or evidence which or her observation was inaccurate. Evidence is assessed in
greatest certainty of the itself indicates the existence of terms of quality, not quantity. It is to be weighed, not
fact in issue a more original source of counted.
information
And therefore, the consistent ruling of the SC had always
been that the testimony of a single prosecution witness, as
1. Primary or best evidence.
long as it is positive, clear, credible and sufficient on which
 EX. Presenting a promissory note in a collection
to anchor a judgment of conviction. Corroborative evidence
case; Presenting receipts to prove actual damages
or cumulative evidence is not a pre-requisite for the
conviction of the accused. Truth is established not by the
2. Secondary or Substitutional Evidence
number of witnesses but by the quality of their testimonies.
 EX. The TSNs being sold by various school
organizations. They are all photocopied, which Now, Rape case, no homicide angle. Its not a complex crime,
proves there is an original of such. its just rape.
 Take note of the Best Evidence Rule, where the
subject of inquiry is the contents of a document, no A accused B of raping her.
evidence shall be admissible other that original
Ummm how many eye witnesses do you usually have? 1,
document itself (subject to the secondary evidence
unless there is a peeping tom na nanilip. Or the accused was
exceptions, whereby you are allowed to present a
raping and then “come on! Enjoy the show”
mere copy rather than the original).
So usually the crime of rape is a private offense. Its
committed usually in the dark, in the talahiban outside the
school. But its usually done 1 on 1. There is only 1 witness
Types of Supporting Evidence and that is the victim.

Cumulative Evidence Corroborative Evidence Contrast that with a crime that would require more than 1
Additional evidence of the Additional evidence of a witness. Like treason. Pila kahinanglan gani? 2 witnesses
same kind and character as different kind and character attesting to the same act of treason.
that already given and tending to prove the same
tends to prove the same point but different types of So there are crimes that can be proven or can produce a
proposition evidence conviction. A prosecution that produces a conviction with
the testimony of the sole prosecution witness. But there are
also other crimes where there has to be required
July 5, 2018 - Christian Yu corroboration. Ok and that would be the crime of treason
among other crimes.

12
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

We will go to that later on, when we discuss instances Intrinsic evidence, Information necessary for the
where a plurality of evidence is required. determination of an issue that is gleamed from the
provisions of the document itself
Now, prima facie vs rebuttal and then conclusive evidence.
So when you say prima facie evidence, that is evidence that And then you have extrinsic evidence, also called parol
is sufficient to establish a fact and if not rebutted becomes evidence or evidence aliunde, refers to evidence form a
conclusive of that fact. source outside the subject document.

Lets go to the crime of bribery for example, Aliunde, simply means from another source. Another
source. Alibi means another place.
What is punished in the crime of bribery? The acceptance of
a gift. Alia means another person or other people. So mao na siya
“et al” .
Remember that that mere acceptance of a gift is prima facie
evidence that bribery is committed. Now you will encounter intrinsic evidence in wills and
succession. And later on we will take up the parol evidence
Mere acceptance of that gift, regardless of the motivation rule which in rule 130 section 9. So we will not talk about
behind the gift. Or the favor that was given. Its already that to much right now. Yet. Not yet.
prima facie evidence of bribery.
As to the type of evidence you have object evidence,
Another criminal case, BP22. Remember that unsang tawag documentary evidence, testimonial evidence and
ninyo ana? You are prima facie assumed to know the demonstrative evidence.
insufficiency of funds. The moment you receive the notice of
dishonour. Real or object evidence: Those addressed to the senses of the
court and are exhibited to, examined, or viewed by the
That is prima facie evidence, kung wala kang ma rebut that court.
is enough.
It proves the existence, appearance and condition of
Later on, we will be discussing prima facie presumptions physical objects.
when we go to rule 131. That is actually the longest
provision in all of the... kindly take a look at rule 131 section So addressed to the senses of the court. The sense of sight,
3. (students look) and tell me how many pages are those. 7 the sense of smell, the sense of hearing, the sense of taste,
pages. From paragraph A to paragraph KK. That the the sense of touch. Its just ironic that the most important
alphabet going over. Thats the longest provision of law and sense of all “common sense” sometimes escapes the court.
that will be your memory assignment for next meeting.... Ok.
hehehe joke lng. Maayo kay naminaw mo.
What about documentary evidence?
So during my time, dean Inigo would challenge the
students. And then he said “ok lets say your grade is 65 in Consists of writings or any material containing letters,
evidence. ill give you a way out” what is the way out? “ you words, numbers, figures, symbols, or other modes of
memorize at the end of the semester you deliver your written expression offered as proof of their contents.
memory of rule 131 section 3 from paragraph A to
And then you have testimonial evidence which ae oral or
paragraph KK”
Written assertions offered in a court as a proof of what is
But you have to memorize everything including the stated for as long as the witness whose testimony was
commas and other punctuations. That was the deal of dean offered, perceived and in perceiving can make known its
inigo. And so being a dean inigo acolyte, when i started perception to others.
teaching evidence i also told that to my students. I dared my
Lets talk about real or object evidence first and contrast that
students. And there was this student who dared. So i was
with documentary evidence.
forced to sit and listen to the student challenge me if she
really memorized. She ha so babae. So in the middle of In real or object evidence otherwise known as AUTOPTIC
paragraph G i just said “ ok ill just pass you” hehehe wa PROFERENCE. We will go to that again when we go to rule
man ko naminaw. Kay dili man pud layo iyang grado and I 130 section 1. We are concerned about an object or
was still quit strict at the time. I don’t give considerations. something that we as persons can perceive by the use of our
Ok 75R and I passed her. senses.
Ok so what is rebuttal evidence? Ok? Kung unsay makit-an, unsang masimhutan, malasahan,
madunggan, magunitan. Mao na ang real or object evidence.
That which is given by a party in a case to explain, repel,
counteract or disprove facts given by evidence on the other And it is precisely our perceptions using our senses that
side. would be material to the fact in issue. That would be
important for the matters to prove.
That rebuttal evidence is more particularly applied to that
evidence given by the plaintiff to explain or repel the So let’s say for example:
evidence given by the defendant
This is a white board. Ok so what is a white board for? To
Whereas conclusive evidence, write sir. To write on. This is a wall, that is a wall. And they
are objects. This is paper. And then paper of course has
That is evidence which is incontrovertible. That is to say
something written on it. And therefore is it safe to conclude
either not open or not able to be questioned as where it is
that this is a document? Safe to conclude that this is a
said that a thing is conclusively proved. It means that such
document, because it contains letters, numbers, figures,
result follows from the facts shown as the only one that is
words, and other modes of written expression? NO. Why?
possible.
Very simple, whatever is written there must be offered as
And finally you have intrinsic evidence vs. extrinsic proof of their CONTENTS.
evidence.

13
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

So it doesn’t necessarily mean that something is on paper is Now have you ever made affidavits in your lives. Like an
papyric in nature, that is automatically a document. affidavit of loss. Anybody here that has ever lost an id? You
you have lost an id? 3 times. So I would assume that you
(sir crumples paper) paper that i want to present to the court have executed an affidavit of loss 3 times as well.
to prove that the paper itself is crumpled.
Ok where did you go? Legal aid. How much did dean
So not necessarily that a paper is considered a document. quibod charge? 50 pesos. Ok so thats 50 pesos worth spent.
You spent a hundred pesos more because you were unlucky
What about an object?
twice more.
Now let us suppose that on that wall. A and B are
But, let me tell you that I can guess what goes on in that
classmates from 3rd year Manresa again. Nangutang si A
affidavit of loss that you signed.
kang B. And then wala man silay papel Makita. And they
had a pentel pen. They wrote it on the wall “ i promise to Like, did it go in a manner like you were going to school
pay B to him or his order the amount of 5k signed A” maybe or you are going somewhere.
What is that? Or maybe you are about to go home and then you realized
that your I.D. was no longer there and you exerted diligent
That is a promissory note. But its not even on paper.
efforts to locate your ID but your efforts were futile, right?
Let us suppose that A did not pay B. And that is the only
And so you are executing that affidavit to attest to the truth
evidence of the debt. So you have to like cut it out from the
of the foregoing facts and for the purpose of the issuance of
wall. The bigger wall and bring it to court. Is it an object or a
a new ID.
document?
So in all 3 affidavits, executed at different times, you
Thats not even an object. Why? Because it is offered as proof
testified the same way.
of its contents. Not as proof of its physicial appearance, not
as proof of its material used. But rather what is stated there. Am I not correct?
That is what makes it a document. Whatever is written (He did.) See?
makes it a document.
Because affidavits – If it is Ordinary Affidavits, these are
It reminds me of, because not a lot of people know that i prepared by lawyers.
taught succession before. Kabalo mo ana? I taught
succession before. As i said im the favourite of Gina. Pag And lawyers employ their own language.
walay teacher, ako patudluon. And the teacher that time
was already my wife. Maternity leave.... i knocked her up so Ikaw bay gipasuwat sa imong affidavit? No.
she had to take a maternity leave and i had to take over
It is the lawyer who prepares it and in all probability, it is a
succession for her. And then during my research i came
prepared form and you just simply fill in the blanks.
across a case somewhere in Germany or Austria somewhere
there. And then somebody died sa iyang barn or farm. And Now, contrast that with a Judicial Affidavit, which is
he was bloodied and he was about to die. So he scribbled supposed to be a substitute to a testimony in court.
across the wall in German. And he wrote in the wall in
German the shortest will in history consisting of 2 words in The requirement of the law is that the judicial affidavit must
German, translated in English 3 words. “all to wife” using be executed – in the language known to the affiant or
his own blood “all to wife” witness.

So that is his testamentary intent. Everything that i own i It is not the language of the lawyer anymore because it is
leave to my wife. And you know what? It was admitted to supposed to be testimonial evidence that will be presented
probate. in court.

So gi sulat niya sa wall. Wall is not paper, but it was So there are 3 as to the type of evidence:
submitted as a document. A holographic will.
1. Object or Real;
I hope it doesn’t happen to me. There is no need to leave 2. Documentary;
anything to my wife, because my wife already owns 3. Testimonial;
everything including my soul. BUT not my body.

Then you have testimonial evidence. Its what a witness And there’s 4th:
states in open court. Oral or even written assertions offered
4. (Informally) Demonstrative evidence.
as proof of the truth of what is being stated if the witness
- Or evidence, in the forms of objects such as
can perceived and in perceiving can make known its
maps, scale models, symbol, diagrams or
perception to others.
objects that has in itself no probative value but
Now take note that testimonial evidence can be either oral is used to illustrate and clarify a factual matter
or written. in issue or aid a testimony.

Oral – he utters it in open court. Demonstrative evidence –


Written, what about written assertions? Pwede diay na siya It is evidence, as evidence is not prohibited
sir? Affidavits are testimonial in character. A judicial although not specifically mentioned in the Rules of Court.
affidavit even.
In appreciating demonstrative evidence, the court uses the
When did you discuss judicial affidavits? same 5 senses in object evidence.
Civ pro. That is supposed to be evidence. ok at least my job
is already done. I don’t have to discuss judicial affidavits
with you. Those are written assertions, it’s in written form.

14
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

But more importantly, the court applies intelligence to make Greater credence is given to physical evidence as evidence
analysis, draw conclusions, and inferences from the objects of the highest order because it speaks more eloquently than
presented. a hundred witnesses.

Thus, in demonstrative evidence, what is important is not So there is a Hierarchy Of Evidence:


the object itself,
1) Ang pinaka trustworthy, according to the SC, is
 but the information that the object creates. Physical Evidence.

Example: - Which is to say  Real or Object Evidence

This is usually when, I’ll tell you about a story of the But there are still other evidences like documentary and
dumbest witness ever created by God in the case that I had then you have testimonial.
handled.
So between documentary and testimonial, which will
There’s this guy who cannot seem to answer anything prevail in case of conflict?
intelligently.
Which one is more trustworthy?
And so he was asked during direct examination,
According to the SC, in GSIS VS. CA: Documentary
“When the motorcycle hit you, unsa ka kalayo nalagpot?” evidence prevails over Testimonial evidence. Why? Because
Testimonial evidence is easy of fabrication and there is very
I forgot the exact question.
little room for choice between testimonial evidence and
“You were thrown at a distance of what?” Okay, then documentary evidence because it is in the nature of people
translate pa kay dumbest witness ever created gani. Then he na mangatik and I am looking at you guys right now, hilig
said, “50 meters”. Just imagine 50 meters. How far is that? mo mangatik.
So he has that type of mentality. So I said na murag dili man
So testimonial na lang ang pinaka ulahi, ang pinaka ubos.
kaya na kaning witness na ni will be testifying in his own
But you need to remember that there are also 2 forms of
power so there has be a need for demonstrative evidence.
testimonial evidence:
So the next time that the witness is presented, because there
- Oral testimony; and
are 2 cases here involving the same incident, nagbuhat ko og
- Written testimony.
sketches.

Sketches simply to aid the testimony. So there are drawings.


So which one prevails over the other?
Let us supposed that this is the motorcycle, and this was
you, and this is the store. So, “where were you after you According to the SC, in PEOPLE VS. BALLENO:
were hit?” And so he will point at that diagram and from
that, we can already estimate properly how far. To really In any case, open court declarations take precedence over
determine kung unsa kalayo siya nalagpot. Because that will written affidavits in the hierarchy of evidence. Unlike
prove na paspas kayo ang dagan sa motor. written statements, there is flexibility on the part of the
questioner to adapt his questions to elicit the desired answer
Because it will be impossible for the court to believe na in order to ferret out the truth. Therefore, Oral testimony
nabangaan kag motorcycle unya nalagpot kag 50 meters. prevails over written testimony.
And so there is a need for demonstrative evidence,
Hierarchy Of Evidence:
Kadtong sketch. Recreations for example Or maps,
1) Physical Evidence
Let’s say a map is presented in court for a witness to - Real or Object evidence
identify where he found, for example, the body fo the 2) Documentary evidence
victim. And so he will point to it. 3) Testimonial evidence
a. Oral testimony
What’s the evidence there?
b. Written testimony
When we talk about demonstrative evidence, is it where he
pointed in that particular map? Or is it his testimony that
So you already have that full picture and then you’ll say na
was merely aided by the object?
“Banga ka testimonial evidence! Grabe ka oy.”
It is  his testimony.
So let us suppose that this is an axe, which is the murder
So it is a hybrid between (a vampire and a warewolf. Nag weapon. So somebody was hacked to death with an axe.
joke si sir.) Then object is evidence of the highest order. So what do we
do?
A hybrid between real evidence and testimonial evidence.
You present the axe in court and you put the ax in the
Now, in PEOPLE VS. LAVAPIE: witness stand and then you say “Okay axe, go ahead and
testify. What happened Mr. Axe?” Or okay, let us not use
If the physical evidence on record runs counter to the
this (eraser) because obviously, this is not an axe.
testimonial evidence of the prosecution witnesses,
conclusions as to physical evidence should prevail. Let us supposed we have that Deed of Sale, which allegedly
transfers the deed to where the Ateneo de Davao is standing
Physical evidence is that mute but eloquent manifestations
to a person named Tampolano, sometime 20 years ago and
of truth which rate high in our hierarchy of trustworthy
then the heirs of Tampolano are now claiming that they own
evidence.
the lot where Ateneo stands.
In the light of the physical evidence obtaining in this case,
Di ba naa tay Latin Maxim na – “Accesorium Sequitur
contrary to oral assertions cannot normally prevail. Principale”

15
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

 Accessory follows the principal “Ok, guilty- 1”

So anything built on top of the lot is considered as part of That’s opinion and it is legally irrelevant. Your opinion does
the lot. So the heirs are saying that “We own Ateneo.” and not matter in court, the only opinion that matters in court is
they have that Deed of Sale. the opinion of the court itself. Regardless of how stupid that
opinion might be, it’s still the opinion of the court.
So in court, in the case against Father Tabora, I presume,
there is a document. And so let us present the document. Expert Evidence- consists of the opinion of a witness on a
Put it at the witness stand. matter requiring special knowledge. In cases requiring
specialized knowledge, expert testimony is required.
NO!
In medical malpractice cases, what you have to prove is the
Objects and documents do not testify by themselves. fact that the medical practitioner deviated from the
standards that are usually employed in the medical
Which brings me to my point – profession and the only way you can do that is through
expert testimony of a medical practitioner. But, ordinarily
That even if testimonial evidence is the weakest, the lamest
expert testimony would not be required and even when
among the different types of evidence,
expert testimony is presented in court, they are merely
 It is still the most important. persuasive and they are not binding upon the court.

Ordinary evidence- consists in the testimony of a witness


Why? Because no evidence, object or real or documentary who testifies to those facts which involves his personal
evidence, will ever be presented in court unless they are in knowledge, which are solely derived from his perception.
effect sponsored by a witness. We’ll go to that when we reach Ordinary testimony.

So naa jud witness na Take note that there should be a liberal construction of the
rules of evidence. It must be liberally construed, for they are
- mag authenticate, mere rules intended to facilitate the administration of
- mag identify and justice. A strict and rigid application of the rules must be
- then testify with the primary objective of enhancing substantial justice.

on the contents of the document or an object.

July 5, 2018 (1:06:01- 1:36:00) Dane Viola

No evidence object, real or documentary evidence will ever


be presented in court, unless someone will authenticate,
identify and testify a document or an object. You cannot just
bring an object in court and let the court observe it, there
must be somebody who must attest to them. So testimony
evidence is at the bottom, but it is the most important.

TYPES OF TESTIMONIAL EVIDENCE

1.Oral and Written testimony

2. As to tenor of testimony:

 Ordinary evidence
 Character or Reputation evidence
 Opinion evidence
 Expert evidence- a species of Opinion evidence

Character or Reputation Evidence- evidence attesting to


one’s character and moral standing in the community
Generally the character is regarded as irrelevant in the
determination of the controversy.

Because otherwise, what will happen? It is simply the


judge’s impression on the person. So if the judge says “Ay,
ka pangit sa reputasyon, leche.” Then he will never win
because of his character and his reputation is not ok, that’s
why it’s legally irrelevant.

Opinion Evidence- evidence based on what one believes or


infers, based on personal knowledge or facts related to the
facts in issue. Why is this not allowed? Because otherwise,
what will happen is it will be a popularity contest. So let’s
just do a survey of the opinion of the people.

“Is he guilty, or not guilty?”

“In my opinion, not guilty.”

16
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

RULE 129 If the existence of a debt is stipulated upon, the fact


WHAT NEED NOT BE PROVED is already withdrawn from contention then such
fact need not be proved.
Section 1. Judicial notice, when mandatory. — A court shall
take judicial notice, without the introduction of evidence, of MATTERS THAT FALL WITHIN THE REALM OF
the existence and territorial extent of states, their political JUDICIAL NOTICE
history, forms of government and symbols of nationality,
the law of nations, the admiralty and maritime courts of It is the assumption of the court of a fact without need of
the world and their seals, the political constitution and further traditional, evidentiary support. This principle is
history of the Philippines, the official acts of legislative, based on convenience and expediency in introducing
executive and judicial departments of the Philippines, the evidence on matters which are not ordinarily capable of
laws of nature, the measure of time, and the geographical dispute and are actually bona fide disputed and the tenor of
divisions. (1a) which can safely be assumed from the tribunals general
knowledge or from a slight search on its part.
Rule 129 covers Judicial Notice which can be mandatory,
discretionary or Judicial Notice when hearing is necessary, Manifesta probatione non indigent- manifest things don’t
and Judicial Admissions. require proof.

Mejia Espinoza vs Cariño Rationale: Taking Judicial Notice is a matter of expediency


and convenience for it fulfills the purpose that the evidence
The general rule is that courts must based their factual is intended to achieve and this is equivalent to proof.
findings on such relevant evidence formally offered during
trial, recognized exceptions to this are matters which courts So it would be superfluous, inconvenient and expensive
can take judicial notice of, judicial admissions, and both to the parties and the court to require proof in the
presumptions created by law or by the Rules. ordinary way of facts that are already known to the court. In
fact, insistence of not taking judicial notice might lead to
When can proof be dispensed with? When a conclusive absurd results.
presumption applies, no proof is required because it is
What are matters that the courts are supposed to take
conclusive already. You can’t refute it because it is already
judicial notice of?
considered final under the law.
Example:
Example:
Laws of nature, like the law of gravity.
A child is conclusively presumed to be incapable of
criminal liability provided that there is ample What is the rate by which an object falls? At the
evidence or proof about his age. rate of 9.8m/s2.
What happens if it is a mere disputable presumption? It “Sir! Someone jumped from the top of the Marco Polo!”
merely defers the presentation of proof.
“Nahulog?”
Example:
“Malamang!”
There would be the presumption that an unlawful
act is done with an unlawful intent. In other words, “What happened to him?”
intent is presumed in the unlawful act. This means
“AY edi namatay!”
that the prosecution need not prove in the mean
time that the accused committed the act with Laws of nature! You will FALL (awwww sir, walay
criminal intent. tinud-anay! lels)
However, if the accused proves that the act was When you fall, it is logical to assume that you will
done without intent, that’s the time when the die.
prosecution presents rebuttal evidence so as to
refute the proof made by the accused that he did This is why the courts take judicial notice of the
the act without criminal intent. laws of nature.

It therefore, has an effect of shifting the evidence upon the Geographical divisions, existence and territorial extent of
party against whom a disputable presumption is imposed. states.

Example: For example, there is a Swiss from Switzerland


who files a case against a Filipino in the
Article 2185. Unless there is proof to the contrary, it is Philippines for the collection of a sum of money.
presumed that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating He sues the Filipino in court to collect the debt, and
any traffic regulation. during his testimony, the court has to ask:

Let’s say a person is over speeding, in a way that it “What’s your citizenship?”
is transgressing the limits set by the law.
“I’m from Switzerland”
What’s the effect of Art 2185? The plaintiff, need
not prove negligence on the part of the defendant, “What is a Swiss and where is this Switzerland? The
court is not convinced that Switzerland exists! So the
the burden shifts to the defendant to prove that he
court will have to go to Switzerland himself and the
was not negligent.
plaintiff will pay for the fare.”
When a fact is admitted by the parties in court, proof can be
The court can’t do that! The court has to take
dispensed with.
judicial notice of the existence and territorial extent
Example:

17
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

of states because it is of public knowledge capable 1. A foreign law may be admitted without prove if it
of unquestionable demonstration. is subject to judicial admission.
a. So, if a party to the case, plead a particular
Edsam Andit foreign law and then the other party
So, there’s this guy. He’s an American suing a Filipino for admits it, then it is already taken judicial
the. Ay Swiss nalang. Para malahi nasad. Switzerland. They notice of. In a way, it does not require
proof anymore.
say Switzerland is a nice country. So, there’s a Swiss guy
who files a case against a Filipino guy for a collection of
loan. And during his testimony, the court asked him. “What 2. In the absence of proof or admission to foreign law,
is your citizenship Mr. Plaintiff?”. The plaintiff said “I am it is presumed to be the same as the Philippine
Swiss”. Then the court would say “What is this Swiss? And laws. (PROCESSUAL PRESUMPTION)
where is this Switzerland?”
Example:
The court is not convinced that Switzerland exists. So, the
court will have to go to Switzerland. Except, the plaintiff CONDON vs COMELEC
would have to pay for the plane ticket. You cannot do that.
You have to take judicial notice of the extent and territorial FACTS:
jurisdiction of States. Because anyway, it is of public Maja, was the winning Vice-Mayoralty candidate
knowledge and capable of unquestionable demonstration. of Caba, La Union. A petition for quo warranto
It’s as simple as that. Otherwise, it would be absurd. was filed against her on the ground that she was a
dual citizen. Who, under RA 9225, must execute a
If I were the judge, and I have to opportunity to travel for sworn renunciation of her Australian citizenship.
free, of course I would! But it cannot be done.
Maja answered that when she executed a
(Shares his story of being claustrophobic. Not being able to
declaration of renunciation of Australian
stay in the plane for more than 4 hours.)
citizenship in Australia, she is deemed to have lost
Now, let’s go to mandatory judicial notice. You already her foreign citizenship based on the laws of
memorized it. Which is good because Rule 129, Section 1 Australia.
(MANDATORY JUDICIAL NOTICE) is always present in
any evidence reviewer and is always asked in the BAR. She wanted the court to take notice of the laws of
Australia regarding laws of citizenship. She also
But for purposes of our discussion, I will not go over the contended that the mere fact of running for public
objects of mandatory judicial notice one by one. But what office is a clear abandonment of her foreign
we are got to focus on will be simply mandatory judicial citizenship. Citing VALLEZ vs COMELEC.
notice of laws. Because we are law students and we are here
to know the law. So, let’s focus on that. ISSUE:
Did Maja successfully convince the court? NO
LAWS THAT ARE SUBJECT TO MANDATORY
JUDICIAL NOTICE RULING:
1. LAW OF NATIONS Foreign laws are not a matter of judicial notice.
2. ACTS OF THE LEGISLATIVE, EXECUTIVE, AND Like any other fact, they must be alleged and
JUDICIAL DEPARTMENT OF THE PHILIPPINES proven. And to prove foreign law, the party
3. ORDINANCES invoking it must present a copy thereof and
4. LAWS OF NATURE comply with Sections 24 and 25, Rule 132. In the
absence of proof, the Philippines courts will apply
LAW OF NATIONS the Philippine law under the doctrine of processual
presumption.
Why do we take judicial notice of law of nations?
Because it is mandated by the 1987 Constitution. Which say
that - "The Philippines renounces war as an instrument of LAWS AS OFFICIAL ACTS OF THE
national policy, adopts the generally accepted principles of LEGISLATIVE DEPARTMENT
international law as part of the law of the land and adheres
to the policy of peace, equality, justice, freedom, All judges are presumed to know all the laws, all
cooperation, and amity with all nations". statues, including their status kung na repeal na ba,
kung na amend na ba, etc. Kay kung wala ka
Based on the Constitution, we therefore, should take judicial
kabalo, nganong nag huwes paman kang animala
notice with the generally accepted principles of
ka! Judges must know more of the law than
international law. And the law of nations could actually be
lawyers.
understood in a different way. Such as, in the sense that we
are referring to a law of a particular nation. We do not take
Let’s assume for now that all judges know the law.
judicial notice of a foreign law as a general rule.
All statutes. But are there other legislative acts
Foreign laws actually present a question of fact. Therefore, other than statutes? Are there other acts that are
as the general rule, they may not be taken judicial notice of part of the realm of the mandatory judicial notice
and have to be pleaded and proven same as any other fact. without being statutes? Yes, there are.

How do you do it? Example:

 For written foreign law, we follow the process CHAVEZ vs PUBLIC ESTATES AUTHORITY
stated in Rule 132, Sections 24 and 25.
 For unwritten foreign law, we follow Rule 130, The court ruled that a Senate investigation report is
Section 46. deemed covered by mandatory judicial notice
Take note, however, of the following principles. because that is an official act of the legislative

18
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

department. REPUBLIC vs. SOUTH SIDE


HOMEOWNER’S ASSOCIATION INC.
Congressional debates and other records that September 22, 2006
predicated the passage of the law are considered to
be official acts of the legislative department and FACTS:
therefore within the realm of mandatory judicial
notice. There was a land occupied by Homeowner’s Association
which was originally used by soldiers as a military
reservation. Hence, even if it was used for residential
OFFICIAL ACTS OF THE EXECUTIVE DEPARTMENT purposes, it is still subject of a military reservation.
Remember that in your Land Title and Deeds, a military
Executive orders and presidential decrees, when they take
reservation is not susceptible of being placed under the
authority from the legislative power directly granted to the
operation of Torrens system. But, Homeowner’s Association
executive or by the Constitution or made pursuant to the
applied for the titling in their individual capacities.
valid legislative delegation granted to the president, have
the full force and effect of law or statute.
ISSUE: W/N a land that is under a military reservation can
be subject to an application for titling.
Perfect example is the Family Code of the Philippines (EO
209) issued and promulgated by then President Corazon RULING: NO
Aquino during the time when she was given transitory
legislative power under by the provisional constitution of Titling of the property cannot be allowed. You should take
1986 following the grant of legislative power during the judicial notice of Proclamation 423 which the courts are
time of Marcos under the 1973 Constitution. mandated to do. It is still part of a military reservation. In
Example: order for a parcel of land to be part of the alienable land of
public domain, there has to be a declaration that the same is
Can a family court take judicial notice of an age, let’s say alienable and disposable. That’s the only time that you can
below 18, by just observing that the person looks like a apply for titling under PD 1529. However, SC said that
minor? application for titling (PD 1529), or the presidential decree
providing for lands covered under military reservation is a
So, gitan.aw sa korte. Then ana ang korte na “ah he looks matter cognizable by the court pursuant to Section 1 Rule
like a minor. Therefore, the case must be within the 129. Hence the same is within the realm of mandatory
jurisdiction of the Family Court.” Can the court do this? judicial notice.
NO!!! because when the court looks at the witness or the
victim or the plaintiff, what the court is doing is actually
appreciating an object evidence by using the sense of sight. However, take note of the case of ASIAN TERMINALS vs.
So, when you do that, when you use your senses to perform MALAYAN INSURANCE, where the SC said that not all
the so called “autaptic preference” that’s no longer taking exercises of the executive power can be subject to
judicial notice. mandatory judicial notice. You need to distinguish what
type of function is being undertaken by the executive
So, the concept of autaptic preference is actually repugnant whether governmental or proprietary functions.
to the concept of judicial notice.
ASIAN TERMINALS vs. MALAYAN INSURANCE
PASEO vs. LOPEZ April 4, 2011
August 19, 1993
FACTS:
ISSUE: W/N presidential issuances can be considered a
law. In a case for damages, Asian Terminal was adjudged liable
by the RTC in an amount of P643, 600 for losses due to its
RULING: YES mishandling of cargo. Asian Terminal has management
Letters of instructions are considered matter of judicial contract with Philippine Ports Authority (PPA). The PPA
notice. To form part of the law of the land, a decree order or does not conduct cargo and stevedoring services but it
letter of instruction must be issued by the President in the enters into contracts in behalf of the Government with
exercise of his extraordinary power of legislation as private terminal operators who handle the cargo.
contemplated in Section 6 of the 1976 Amendments of the
Constitution. Not all decree order or letters of instruction by Asian Terminal wants to impress upon the court that it
the President become part of the law of the land. cannot be held liable of P643,600.00 because Section 7.01,
Article VII of the Management Contract it entered into with
PPA limits their liability due to mishandling of cargo to
So, other official acts of executive also in the case of.
P5,000 per package regardless of the value of the cargo.
SAÑADO vs. CA Hence, the court should take judicial notice of such contract
April 17, 2001 because it is an official act of the executive department of
RULING: The action of an administrative agency in the Philippines through the PPA.
granting, denying or even suspending or revoking a license
of franchise or certificate of public convenience is ISSUE: Whether or not the courts can take judicial notice of
administrative or quasi-judicial. Decisions of the office of the management contract as an official act of the executive
the president are official acts and those acts exercising department of the Philippines
quasi-judicial power by the executive department may thus
squarely fall under matters relative to the executive RULING: NO
department which the court are mandatorily tasked to take
judicial notice of. Judicial notice must be taken of the The Management Contract entered into by Asian Terminal
organization of the executive department, its principal and PPA is not a matter subject to mandatory judicial notice
officers, elected or appointed such as its president. because it cannot be considered as an official act of the
executive department of the Philippines. The contract was

19
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

entered into by virtue of the exercise of a proprietary however admits certain exceptions. (REPUBLIC vs
function not a governmental function. SANDIGANBAYAN)

Exceptions: Permissible judicial notice of records of lower


Hence, there is a need to distinguish the types of functions courts. As a matter of convenience to all the parties. When
of the Government: in the knowledge of and absent of objection from the
parties, reference is made to it for that purpose and
1. Governmental function – subject to mandatory judicial admitted as part of the record of the case then pending, it
function as held in the case of Republic vs. South Side can be taken a judicial notice.
2. Proprietary function – not subject to mandatory judicial
Take note of these cases:
function as held in the case of Asian Terminals vs. Malayan
OCCIDENTAL LAND TRANSPO VS CA (1993): That
EXECUTIVE POWER OF CLEMENCY there should be an absence of objection, meaning both
parties agree, as a matter of convenience between two
Diba daghan man ug acts under executive clemency? Like parties to treat the records of another case as read into the
pardon, amnesty, stay of execution, etc. records. Those are the two requisites you need to remember:
1. absence of objection and 2. consent of the parties
But not all exercises of the President under his power of
executive clemency are subject to mandatory judicial notice.
REGULUS DEVELOPMENT vs. DELA CRUZ (2016),
PEOPLE vs. CASIDO March 7, 1997 The SC took judicial notice of a case that was just decided
between the same parties and practically the same title. The
Between pardon and amnesty, it is amnesty that is taken SC did not even continue to look at the facts anymore. It
mandatory judicial notice. It is not pardon being a private simply took judicial notice that in that other case with a
act of the President and being such, it must be pleaded and different general reference number, they ruled already as
proven by the person pardoned. follows.

Take note pardon is granted by the chief executive and as ORDINACES


such it is a private act which must be pleaded in court by
the person being pardoned because the court takes no Ordinances are not included in the enumeration of matters
judicial notice thereof. However, amnesty by proclamation covered by mandatory judicial notice under Sec 1 Rule 129
of the chief executive with the concurrence of congress is a of Rules of Court.
public act of which the courts should take judicial notice.
To simplify the rules:
Pag private act, not susceptible of mandatory judicial notice. 1. When the MTC required to take judicial notice
Pero pag public act gani, it is susceptible of mandatory a. A Municipal Trial Court is required to take
judicial notice. judicial notice of ordinances of the municipality or
city where it sits.
AMNESTY PARDON
Subject to mandatory Not subject Example:
judicial notice MTC Davao should take judicial notice of ordinances
Need not be pleaded Must be pleaded coming from Davao City. It’s part of the mandatory judicial
notice.
A MCTC (municipal circuit trial court) which may
OFFICIAL ACTS OF THE JUDICIAL DEPARTMENT encompass more than one jurisdiction, thus, must also take
These refer mostly to decisions and cases. An example judicial notice of ordinances within those jurisdictions.
would be the Rules of Court. Courts should take judicial
notice of the issuances and the decisions rendered by the SC 2. When the RTC required to take judicial notices
but not blindly because the fact that the SC ruled a certain
way, does not mean that it would be the same decision all a. The RTC must take judicial notice of ordinances
through out and to all cases of same nature. In some cases, only when required to do so by the statute such as
you still have to prove certain facts to determine whether charter of a city.
If I’m not mistaken, the charter of Davao City has a
the doctrine laid down by the court would be applicable or
provision saying that all courts, operating within the
not.
territorial jurisdiction of Davao City, are required to
The basis of taking judicial notice of such is because of: take judicial notice of ordinances.

Article 8 of the CC: Judicial decisions applying or b. In the case of appeal before the RTC wherein the
interpreting the laws or the Constitution shall form a part inferior court took judicial notice of an ordinance
of the legal system of the Philippines. involved in the said case.

So, no problem in taking judicial notice if it is the SC c. When an ordinance is already capable of
because they have the effect of law. unquestionable demonstration.
But for decisions of the lower courts,
Example:
General Rule: they are not given judicial notice. In The Non-Smoking Ordinance of Davao City. We
prosecuting a case for trial, generally, courts are not were the first to regulate smoking in the city.
authorized to take judicial notice of the contents of the Where the ordinance is more stringent than the
records of other cases even when such cases are pending in national law. Before in Manila, you can smoke
the same court and notwithstanding that both cases may almost anywhere. Now, in Duterte’s time, you can
have been tried or are pending in the same judge. But this only smoke if you go to the smoking areas. That is

20
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

one effect of an ordinance capable of court might have in determining whether or not to take
unquestionable demonstration. notice of an ordinance. Such a statute does not direct the
court to act on its own in obtaining evidence for the record
(Shares further stories about how one can freely and a party must make the ordinance available to the court
smoke anywhere in Manila during the time he took for it to take notice.
the BAR.)

Gillian Grancho

Evidence LAWS OF NATURE

July 5 (2:06:01 – end) A few more, we have here laws of nature, the case of
PEOPLE V MENESES (1998). In this case, what the SC took
There were five of us inside the taxi, Dean Inigo, Bobet judicial notice of was the fact that at around 3 in the
Torreon and 3 debaters. Just imagine unya nag sigarilyo si morning during Christmas season, it is still quite dark and
Dean Inigo. Then when he developed enfisema, that’s when that daylight comes rather late in this time of the year.
he said that we should not smoke anymore here in law
school kay bawal. There was an issue as to whether or not the identification by
the witness of the assailant was okay because of
Take note in the case of SJS v ATIENZA (2008), you cannot illumination. The contention was that it was not really
just simply expect a court to take judicial notice of an illuminated at that time. There was no street light. And yet
ordinance. The duty of the party, therefore, is to supply the the witness positively identified the assailant. So the court
court with a copy of the ordinance if it wants the court to took judicial notice, there was no illumination other than
take judicial notice of it. That was the warning of the probably the sun. Pero diba ngit ngit pani sya.
Supreme Court (SC) in this case.
PEOPLE V MENESES (1998)
SJS v ATIENZA (2008)
FACTS:
FACTS:
At around three o clock in the early morning of December
Petitioners Social Justice Society (SJS) et.al. filed a petition 15, 1991, thirty-three year old Cesar Victoria was stabbed to
against Hon. Jose L. Atienza, Jr., then mayor of the City of death while sleeping with his seven-year old son
Manila, to enforce Ordinance No. 8027, reclassifying the Oil Christopher in a rented makeshift room in Tondo, Manila.
Depot in Pandacan Terminal, from industrial to commercial Christopher testified that he witnessed the stabbing of his
area and to cease and desist from operating their businesses father. He testified that he went to his fathers rented
from the date of effectivity of the ordinance. Oil makeshift room to sleep.He further testified that he was
companies, Chevron, Shell, Petron as well as DOE sought to awakened from sleep and saw his father being stabbed in
intervene and asked for the nullification of said ordinance. the heart with a veinte nueve. After the assailant ran away,
(Issuance of said ordinances is said to be an exercise of Christopher cried.
police power)
RULING:
ISSUE: WON the Court should take judicial notice of the
ordinance We find that the trustworthiness of the identification of
appellant by Christopher is dubious, raising reasonable
RULING: doubt in the mind of the Court as to appellants culpability.

While courts are required to take judicial notice of the laws It was established that the crime took place in the wee hours
enacted by Congress, the rule with respect to local of the morning, before the crack of dawn, at around three
ordinances is different. Ordinances are not included in the oclock. The court can take judicial notice of the laws of
enumeration of matters covered by mandatory judicial nature such as in the instant case, that at around three in
notice under Section 1, Rule 129 of the Rules of Court the morning during the Christmas season, it is still quite
dark and that daylight comes rather late in this time of
Although, Section 50 of RA 409 provides that: year .Nowhere in the description of the crime scene by
witness SPO3 Mendoza in his testimony was it established
SEC. 50 Judicial notice of ordinances. - All courts sitting in
that there was light or illumination of any sort by which
the city shall take judicial notice of the ordinances passed by
Christopher could see the attacker.:
the [Sangguniang Panglungsod].
The crime took place in a makeshift room measuring about
This cannot be taken to mean that this Court, since it has its
three by five square meters. While the room had a door,
seat in the City of Manila, should have taken steps to
there was no mention of a window which could have
procure a copy of the ordinance on its own, relieving the
allowed entry of some kind of light from the outside. It is
party of any duty to inform the Court about it.
highly improbable that a young boy, just roused from sleep
Even where there is a statute that requires a court to take and his eyes adjusting to the unlit room, could identify the
judicial notice of municipal ordinances, a court is not attacker, much less identify the knife used, as Christopher
required to take judicial notice of ordinances that are not did, as a veinte nueve.
before it and to which it does not have access. The party
asking the court to take judicial notice is obligated to It was weird for me because when we were in our vacation
supply the court with the full text of the rules the party in summer, because in Kuala Lumpur, at 8 in the morning, it
desires it to have notice of. Counsel should take the is still dark. Murag alas 5 diri sa Pilipinas. It will be hours
initiative in requesting that a trial court take judicial notice before the sun come out. So maybe, taking judicial notice of
of an ordinance even where a statute requires courts to take sunrise-sunset and everything, it should be taken on a case-
judicial notice of local ordinances. to-case basis. You cannot say that you can use People v
Meneses as precedent for taking judicial notice.
The intent of a statute requiring a court to take judicial
notice of a local ordinance is to remove any discretion a

21
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

And now there’s this weird case of GABRIEL V CA (2004), subject to the titling of another person. There is a catena of
so what’s the story? cases already decided by the SC which says that such land is
owned by UP.
Very simple story, naay nagbangga and then, the witness
upon hearing the bangga, immediately went to the place During trial, petitioner Rosario presented evidence for the
kung asa ang bangga and pag adto nya ngadto mao pa diay reconstitution of title. UP also presented its own evidence. It
to pangbangga. In other words, its the sound that came presented its own title. So how then can you reconstitute a
ahead of the actual collision. So unsa na sya? Kilat og title when a different title has already been issued covering
dalugdog? the same area. What the UP simply presented was certified
true copiessigned by its own record custodian. Normally,
Dili mana ana, so the SC said, since this courts are obliged to when you reconstitute titles, you go to the ROD and have
take judicial notice of the laws of nature, this Court prefers certified true copies issued by the ROD or in the very least,
to side with prudence. So therefore, the testimony of the present your own ODCT. The copy in the ROD must be the
witness is an epic fail. same as that of the ODCT. Otherwise, it can’t be recorded.
GABRIEL V CA (2004) The RTC allowed the reconstitution in Rosario’s name. it
reasoned that UP failed to present a certified true copy from
FACTS:
the ROD but instead it presented a record issued by its own
There was a collision involving 3 vehicles. One witness, custodian.
Brgy Chairman testified that he was on the shoulder of the
ISSUE: Is the RTC correct?
road, beside the truck, when the first collision took place.
From his vantage point, his view was obstructed by the RULING: NO
truck. He claimed to have first heard the collision. He
immediately took five big steps onto the highway, and then The RTC should not have allowed the reconstitution when it
saw the Beetle and the jeepney colliding. should have taken judicial notice of the several cases cited
by the SC and even the statute saying that UP’s title over the
ISSUE: Whether the testimony of Gonzales should be given land is already incontrovertible.
credence
Section 1, Rule 129 of the Rules of Court mandates that a
RULING: court shall take judicial notice, without the introduction of
evidence, of the official acts of the legislative, executive, and
No. His testimony is essentially saying that the sound of the
judicial departments of the Philippines. Thus, as both
collision took place before the actual collision itself. If true,
Congress and this Court have repeatedly and consistently
this would rate as one of the greatest scientific revelations
validated and recognized UP's indefeasible title over its
of all time. But since courts are obliged to take judicial
landholdings, the RTC and the Court of Appeals clearly
notice of the laws of nature, this Court prefers to side with
erred when it faulted the Republic and UP for presenting
prudence.
certified true copies of its titles signed by its records
The RTC also correctly pointed out that the natural custodian instead of either the duplicate originals or the
tendency in such case would be for Gonzales to have taken certified true copies issued by the Register of Deeds of
caution and avoid exposure to danger. Instead, Gonzales, Quezon City. Indeed, the RTC and the CA should have
who was already on the shoulder of the road, stepped into taken judicial notice of UP's title over its landholdings,
the highway and along the possible course of the collision without need of any other evidence.
he claimed to have heard occurring. The human mind may
be less predictable than the physical laws, but the
conjunction of two unnatural occurrences at once is just too July 11 (start to 25:00) – Gillian Grancho
much for this Court to believe but more than enough to taint
the credibility of Gonzales’ testimony Section 2. Judicial notice, when discretionary. — A court
may take judicial notice of matters which are of public
knowledge, or are capable to unquestionable
demonstration, or ought to be known to judges because of
Kindly take note of the case of Republic v University of the their judicial functions. (1a)
Philippines and Rosario (Jan 27, 2016). Take note of the
ruling. You need to remember that Section 2 is so called
discretionary because, by its very nature, it depends solely
REPUBLIC AND THE UP vs. ROSARIO upon the judgment of the courts. It’s actually the court
asking itself, “should I or should I not take judicial notice of
(From 2017 TSN) a particular fact?” Unless a matter falls squarely within the
FACTS: ambit of Section 1, you cannot actually compel the judge to
take judicial notice of a particular fact. Because of that,
The title of UP over its Diliman campus had been put to judicial notice under Section 2 cannot therefore be
question. Rosario filed a case for reconstitution of lost title. compelled by mandamus.
Nagkataon that the area that he intends to reconstitute is
actually included in the aggregate landholdings of UP What you need to remember in Section 2 are the requisites
Diliman University. 1) The matter must be one of common and general
UP opposed alleged that Congress made a declaration knowledge;
2) It must be well and authoritatively settled and
under RA 9500 that the absolute ownership of the national
not doubtful or uncertain; and
university (UP) over the landholdings in Diliman, Quezon
3) It must be known to be within the limits of the
City including those covered by OCTs and TCTs in the
jurisdiction of the court.
name of UP and their future derivatives is hereby
confirmed. In several cases, it was ruled that the title of UP Let’s go first to No. 3, “it must be known to be within the
over these lands had become incontrovertible so that courts limits of the jurisdiction of the court”
are precluded from looking anew into their validity. So the
UP is saying that there is a law and that should not be

22
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

It simply means it is a matter which the court can take This Court has, in a string of cases, already taken judicial
cognizance of. It has to be within its limits, both power-wise notice of the factual circumstances surrounding the
and territory-wise. Oakwood standoff. That the Oakwood incident was
widely known and extensively covered by the media made
“It must be well and authoritatively settled and not it a proper subject of judicial notice.
doubtful or uncertain”

It simply means that there’s no contestation, everybody Thus, the COMELEC did not commit grave abuse of
practically knows about it, nobody disagrees with it discretion when it treated these facts as public
knowledge, and took cognizance thereof without
“The matter must be one of common and general requiring the introduction and reception of evidence
knowledge” thereon.

The concept of "facts of common knowledge" in the context Ultimately, they wanted the President and the top officials
of judicial notice has been explained as those facts that are of the AFP and PNP to resign. To achieve these goals,
"so commonly known in the community as to make it Magdalo opted to seize a hotel occupied by citizens,
unprofitable to require proof, and so certainly known x x x marched in the premises with complete gear, ammunitions
as to make it indisputable among reasonable men." and plant explosives in the building. These brash methods
(Magdalo sa Para sa Pagbabago v Comelec) used by the Magdalo to air its grievances constituted clear
acts of violence.
The key phrase that you need to remember is “unprofitable
to require proof”, wala kay ginansyahon kung mangayo kag
proweba aning butanga. What is this judicial notice that we are talking about here?
Definitely, it is not one which falls under the realm of
Example,
mandatory judicial notice. No, it does not constitute a
Anybody here not from Davao? (Mati) Anybody here born mandatory nature of judicial notice.
and raised in Davao? (GSIS Matina)
Rather, it falls under Section 2. Its upon the discretion of
I’d like to ask the both of you, where is Claveria St? the tribunal to treat a certain fact as admissible on the
(Everyone knows) ground that it is of common and general knowledge
unprofitable to require proof. Discretion sa Comelec,
Do you know that officially there is no Claveria St, it is CM whether or not taking judicial notice of the particular fact
Recto. Yet we all know where it is. At the same time that and so denying the application of the registration of
there is no Uyanguren St (where DCLA is), that is Ramon Magdalo.
Magsaysay St.
However, the SC also took judicial notice of the grant of
But why is it that everybody knows about it? amnesty in favor of the soldiers. If you remember in the case
of Casido, there is a huge difference between pardon and
It’s because it is one of common and general knowledge that amnesty. Remember that pardon is a private act of the Chief
it is unprofitable to require proof that Claveria St and CM Executive of granting clemency to the convicted offender.
Recto St are not the same. Wala kay maginansya kung But when you talk about amnesty, it is a public act with the
imung i argue nga dili sila one and the same, because they concurrence of the Congress which the court should take
are one and the same. judicial notice of.
Let’s go to this case; do you know who the front guy of this The SC said: However, in view of the subsequent amnesty
Magdalo group is? It’s your favourite guy in the world, granted in favor of the members of MAGDALO, the events
Senator Antonio Trillanes. He is one who came into public that transpired during the Oakwood incident can no longer
lime light because of what happen years ago on what is be interpreted as acts of violence in the context of the
called, Oakwood Mutiny. disqualifications from party registration.
MAGDALO PARA SA PAGBABAGO VS COMELEC So this is the way we are as Filipinos, we elected him as a
(2012) Senator. Nag mutiny na nga. Look what he’s doing now
against this Duterte administration that we belong in. Show
FACTS: Years after the Oakwood mutiny, Magdalo filed of hands, pogi ba si Trillanes?
an application for the registration as a political regional
party with the Comelec for the May 10, 2010 national and STATE PROSECUTORS VS. MURO talks about foreign
local elections. Comelec denied the application. Why? (1) It exchange restriction where you’re not supposed to carry so
took judicial notice of the fact that Magdalo was the one much dollar currencies. The judge dismissed 11 cases
responsible for the Oakwood Mutiny. (2) It employed against Imelda Marcos for violation of central bank
violence and unlawful means to achieve their goals in the restrictions. The dismissal was based solely on newspaper
process defying the laws. accounts of lifting of foreign exchange restrictions.
Magdalo contended that Comelec could not take judicial
notice of those facts, that comelec committed grave abuse So, cases where pending and here comes the judge
of discretion in denying their registration since it based not advanced sya mag huna huna. He thought they’re going to
on the basis of facts or reliable records of facts but on mere lift it anyway, so he dismissed the cases. So it __ the
speculation and conjectures. prosecutor saying, “Is it official”?

The SC said it’s wrong. The mere personal knowledge of


ISSUE: Was the Comelec correct in taking judicial notice, the judge is not the judicial knowledge of the court, and
without requiring proof, of the fact that Magdalo a non- he is not authorized to make his individual knowledge of
registrable political entity and therefore could not be given a fact, not generally or professionally known, the basis of
status as a registered political party his action. Judicial cognizance is taken only of those
matters which are "commonly" known. .
RULING: YES. Comelec is correct in taking judicial notice
of the disqualification of the Magdalo Jurisprudence dictates that judicial notice cannot be taken
of a statute before it becomes effective. The reason is

23
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

simple. A law which is not yet in force and hence, still supposed lifting o foreign exchange controls, a matter which
inexistent, cannot be of common knowledge capable of was not and cannot be considered of common knowledge or
ready and unquestionable demonstration, which is one of of general notoriety. Worse, he took cognizance of an
the requirements before a court can take judicial notice of administrative regulation which was not yet in force when
a fact. the order of dismissal was issued. Jurisprudence dictates
that judicial notice cannot be taken of a statute before it
becomes effective. The reason is simple. A law which is
STATE PROSECUTORS VS. MURO (1994) not yet in force and hence, still inexistent, cannot be of
common knowledge capable of ready and unquestionable
(from 2016 TSN)
demonstration, which is one of the requirements before a
FACTS: court can take judicial notice of a fact.

On August 13, 1992, respondent judge issued an Order (Recit and on why it is helpful to memorize)
dismissing eleven (11) cases. The Judge issued his Order
Dili muundang ang huwes sa imoha ug muingon nga “naa
solely on the basis of newspaper reports (August 11, 1992
kay objection?”
issues of the Philippine Daily Inquirer and the Daily Globe)
concerning the announcement on August 10, 1992 by the Remember that if you fail to object in court because you
President of the Philippines of the lifting by the government hesitated, the objection is already waived. Every
of all foreign exchange restrictions and the arrival at such exclusionary rule, you have to remember, is one that can
decision by the Monetary Board as per statement of Central always be waived by your failure to seasonably object. You
Bank Governor Jose Cuisia have to be quick. You have to be quick on your toes; the law
should be at your fingertips ready for it to be called upon
ISSUE:
whenever you need it. That is when you are already in court
W/N the Judge was correct in taking judicial notice of the and there’s no benefit of the Internet to..unsa na gani to na
supposed lifting of foreign exchange controls which rule. So there is method to this menace. You will know that
appeared in a newspaper. when you take the bar exams.

RULING:

NO. The doctrine of judicial notice rests on the wisdom and Section 3. Judicial notice, when hearing necessary. —
discretion of the courts. The power to take judicial notice is During the trial, the court, on its own initiative, or on
to be exercised by courts with caution; care must be taken request of a party, may announce its intention to take
that the requisite notoriety exists; and every reasonable judicial notice of any matter and allow the parties to be
doubt on the subject should be promptly resolved in the heard thereon.
negative.
After the trial, and before judgment or on appeal, the proper
Generally speaking, matters of judicial notice have three court, on its own initiative or on request of a party, may
material requisites: (1) the matter must be one of common take judicial notice of any matter and allow the parties to
be heard thereon if such matter is decisive of a material
and general knowledge; (2) it must be well and
issue in the case. (n)
authoritatively settled and not doubtful or uncertain; and (3)
it must be known to be within the limits of the jurisdiction Let’s go over to the different types of judicial notice.
of the court. The provincial guide in determining what facts
may be assumed to be judicially known is that of notoriety. - Mandatory judicial notice
Hence, it can be said that judicial notice is limited to facts - Discretionary judicial notice
evidenced by public records and facts of general notoriety. - Judicial notice, when hearing necessary

To say that a court will take judicial notice of a fact is Assume that you are the judge, the tribunal and you are
merely another way of saying that the usual form of presented with the fact and all that you have to do is
evidence will be dispensed with if knowledge of the fact can determine whether it falls within the realm of judicial
be otherwise acquired. This is because the court assumes notice.
that the matter is so notorious that it will not be disputed.
But judicial notice is not judicial knowledge. The mere Why? Because you would want to know if maybe there is no
personal knowledge of the judge is not the judicial need to prove this so trial might be hasten a little bit if you
knowledge of the court, and he is not authorized to make no longer require the parties to prove a particular fact.
his individual knowledge of a fact, not generally or
professionally known, the basis of his action. Judicial If you’re the judge, what are you going to do? Refer it first
cognizance is taken only of those matters which are to Section 1. Is it an object of mandatory judicial notice such
"commonly" known. that no proof is already required? Me as judge, have to
accept it and no longer require proof of it because it falls
Things of "common knowledge," of which courts take under Section 1.
judicial notice, may be matters coming to the knowledge of
men generally in the course of the ordinary experiences of Or if it doesn’t fall under Section 1, it might fall under
life, or they may be matters which are generally accepted by Section 2.
mankind as true and are capable of ready and unquestioned
demonstration. Thus, facts which are universally known,
and which may be found in encyclopedias, dictionaries or JULY 11, 2018 25:01 – 55:00 - Kemarie L. Manligoy
other publications, are judicially noticed, provided they are
of such universal notoriety and so generally understood that Is it an object of mandatory judicial notice such that no
they may be regarded as forming part of the common proof is required? Me, as judge, would have to accept it and
knowledge of every person. Respondent judge, in the guise not require proof of it because it falls under Section 1 or if it
of exercising discretion and on the basis of a mere does not fall under Section 1, it might fall under Section 2
newspaper account which is sometimes even referred to as and you’ve memorized Section 2 and you know the
hearsay evidence twice removed, took judicial notice of the requisites. The matter must be one of common or general
knowledge. Does it fall within Section 2?

24
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Now, failure of a particular fact to satisfy all the evidence which is again repugnant to the concept of judicial
requirements under Section 2 might be under Section 3 notice.
because it could be the fact that maybe it’s quite known but
is it commonly or generally known? Is there anything to be When I ask you, how old I am, so, kung isipun nimo, when
claimed by requiring proof of such a fact? oKay? So, if it you look at the person to determine his age, are you taking
does not fall under Section 1 and it doesn’t fall as well to judicial notice or not? NO. You are conducting a reception
Section 2, probably, there might be reason to take judicial of evidence and therefore, the Court cannot take judicial
notice of it and apply Section 3. So, the court in its own notice of age as evidence by looking at person’s appearance.
initiative or upon request of a party can actually announce So, when the trier of facts observes the appearance of a
its intention to take judicial notice of a fact requiring the person to ascertain his or her age, it’s not taking judicial
parties to be heard thereof. notice of such fact. Rather he is conducting an examination
or reception of the evidence, the evidence being the
Naay hearing and to my mind, that is repugnant to the appearance of the person. Such a process militates against
concept in nature of judicial notice by itself. Ngano? Very the very concept of judicial notice, the object of which is to
simple. When you take judicial notice, what do you do? You do away with the presentation of evidence.
don’t require proof anymore, right? Right? You are not
going to tell the parties, okay, “here’s a particular fact. You You need to read this case, Landbank vs Wycoco, January
submitted it, now prove it!” You don’t require the party to 30, 2004 where the Supreme Court said that in determining
prove it anymore. How do you prove it? By presenting just compensation, the courts cannot simply take judicial
evidence. There’s no hearing when it comes to judicial notice of the prevailing market value of agricultural lands.
notice but when it comes to Section 3, it’s precisely the Let’s say for example, it’s land expropriated, subjected to
opposite of that. coverage of the Comprehensive Agrarian Reform Law, the
Court cannot just take judicial notice that agricultural lands
Take note that judicial notice is taken of a fact only after the on these areas are valued this way. No! There has to be a
parties are heard of the issue of whether or not the court hearing being conducted and Landbank in that hearing is an
should take judicial notice. So, the parties have to convince indispensable party. That’s what Landbank vs Wycoco is all
the court that “yes judge, you have to take judicial notice” about.
and the other party would also say “No, it’s not a matter of
common and general knowledge. So, what the judge would To my mind again, repugnant gihapon na siya sa concept of
do, therefore, to encourage the parties to just stipulate. judicial notice.
Admit nalang if anybody want to admit the existence of a
J
particular fact to be true. But if the parties do not stipulate,
then the court should now conduct a hearing on the matter UDICIAL ADMISSIONS
under the same procedures as hearings on motions and oral
arguments. And I am sure that you have discussed the Now, let’s go to judicial admissions.
requirements of hearings, motions in your civil procedure
Section 4. Judicial admissions - An admission, verbal or
and one of those requirements would be “unsay dapat
written, made by a party in the course of the proceedings in
pakapin sa isa ka motion”. So, accompanied by supporting
the same case, does not require proof. The admission may be
affidavits and other papers.
contradicted only by showing that it was made through
Supporting affidavits is what? Documentary evidence or palpable mistake or that no such admission was made.
testimonial evidence? Unsa gani na? Affidavits? Just to define judicial admission or an admission en judicio,
Testimonial, right? Other papers, documentary evidence. it is a deliberate, clear, unequivocal statement by a party
So, you are presenting evidence actually. Is not a fact that about concrete facts within that party’s knowledge. It is a
judicial notice dispenses with evidence and now Section 3 is formal concession in the pleadings or stipulations by a party
telling you that “okay, I might take judicial notice if I am the or counsel that is binding on the party making them.
judge but you have to support it with affidavits and other Although a judicial admission is not itself evidence, it has
papers.” Asa ang judicial notice diha? Diba presentation of the effect of withdrawing a fact from contention.
evidence na na siya? It’s precisely it. It is repugnant to the
principle of judicial notice when you require the parties to Now, when is a fact in contention? Only if a plaintiff and the
be heard. Well, that’s my opinion anyway. defendant don’t agree about it. None of them would
concede. According to A, it is true; according to B, it’s false.
What else is repugnant to the concept of judicial notice? So, they are in contention. Naga-argue pa sila. But if A for
Autoptic reference. example admits, then it is withdrawn from contention. B, for
When you say autoptic reference, for example, appearance that point, has already won. For that point because A has
or physical condition is admissible in court as object conceded a fact. B, has already proven the point, right? And
evidence, the same being addressed to the senses of the it has the effect of no longer requiring proof of a particular
court. And when an object is relevant to the fact in issue, it fact. The latin maxim to remember would be (latin)
may be exhibited to or examined or viewed by the Court. admission during trial is stronger than all proof. “You don’t
have to memorize the latin maxim.
So now, you are asking the Court because you have there
the victim for example, in a rape case, a minor girl. And Sources of Judicial Admissions
then you are asking the court to say, “Your honor, can you What are the sources of judicial admissions? In Spouses
state judicial notice of the fact that the victim here, the Binarao vs Plus Builders Incorporated, a party may make
private complainant, is a minor because of her appearance.” judicial admissions in the pleadings during trial, either by
verbal or written manifestations or stipulations or in other
Can the Court take judicial notice of that? The court in
stages of the judicial proceedings, admissions can be
considering whether or not to take judicial notice, what will
expressed like verbal or written.
it do? The court will have to look at the victim. Is the victim
really a minor by her looks? And when the court does that? It was repeated in the case of Adolfo vs Adolfo, March 18,
What is the court doing? It’s receiving. It’s using its senses 2015, where you are also to take note the difference between
and in so doing it is actually conducting a reception of judgment on the pleadings and summary judgment. The

25
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

difference between “it tenders no issue” and “no genuine where the adverse party does not appear to be a party to the
issue”. I’m sure you know that from your Civil Procedure. instrument or when compliance to an order for the
inspection of the instrument is refused.
Now, admissions can be made on the pleadings.
Admissions can be made both in the initiatory and What do I want to point out in Rule 8, Section 8? You have
responsive pleadings. For example, in the complaint, the to contest an actionable document a certain way in the same
defendant Geronimo contracted a loan with the plaintiff vein that you can only plead an actionable document a
Sarah. While defendant had paid the first five installments, certain way. Now, what will be the effect if you fail to
all the succeeding installments remained unpaid. contest an actionable document a certain way? There is an
implied admission of the genuineness and due execution
So, in a complete answer, pwede kang mag-admit. What are and therefore, if you fail to follow the requirements of Rule
you admitting here? That kadtong first five installments, 8, Section 8, what will happen? You can no longer contest or
nabayaran na nimo and for the succeeding installments, say that “kining document na ni is fake or that it was
wala pa. Okay? So, what will be the effect of that upon the executed wrong or infirm in form because you already
defendant when he makes his answer? He doesn’t have to admitted the genuineness and due execution of the
refute anymore. It’s already admitted. He doesn’t have to instrument.
prove anymore that he has paid the first five installments
and so ang remaining installments nalang ang dapat niya i-
refute or to defend against.
Now, diba sa Civil Procedure, there are only seven (7)
What about in an answer? The defendant admits the pleadings allowed? Ordinarily, three lang jud na –
allegations contained in paragraph 1 and 2 of the complaint complaint, answer and reply. You file a complaint, you
in as much as they merely allege the personal circumstances submit to the jurisdiction of the court. And then when is the
and capacities of the parties. defendant required to file an answer? Upon receipt of
summons. And then after that, what happens? The plaintiff,
Usually man gud in an answer or in a complaint, paragraph after receiving an answer, is he mandated to file a reply?
1 would state the personal circumstances of the plaintiff. NO because a reply is merely optional that if you fail to file
Plaintiff, of legal age, Filipino, etc. blah blah , where he may a reply, all the new matters alleged in the answer are
be served with summons, notices of the adverse party and deemed automatically admitted.
the honorable court. Paragraph 2 would be “Defendant, of
legal age, Filipino, etc. blah blah blah and then address Here’s one case, Cassette Realty vs Philbanking
where he may be served with summons and orders from the Corporation, September 14, 2007, where the Supreme Court
court.” Inana lang na siya. said, since the respondent failed to file a reply, the
respondent in effect admitted the genuineness and due
So usually, the 1st paragraph in an answer would merely be execution of the said documents. Why? Because of Rule 129
an admission. What’s the effect of that? What would be the Section 4, it is considered a judicial admission. Huh? Diba
effect if the defendant admits the allegations contained in optional lang man ang filing of a reply? Isn’t it that the filing
paragraphs 1 and 2, the personal circumstances of the of a reply is merely optional? So, why? Let’s go back to
parties. So, he is admitting that the party is of legal age, and Section 10 on kinds of pleadings. The definition of a
presumably has the capacity to sue based on age because pleading or the function of which is to deny or allege facts
otherwise, he would qualify his admission by saying that, in denial or avoidance of new matters alleged by way of
he may be of legal age but because he was already convicted defense in the answer and thereby join or make issue as to
and imposed the penalty of civil interdiction, he is not in full such matters. If the party does not file such reply, all the
possession of his civil personality. Pwede ka magqualify but new matters alleged in the answer are deemed controverted.
he did not do that. So it means that the capacity to sue of the So, again there’s that effect of automatic admission.
plaintiff has already been admitted. He cannot anymore Nakalimtan na ba sa Supreme Court that the filing of a reply
contradict that in the future and more so, the defendant by is merely optional? NO! Section 8 specifically applies to
admitting his own personal circumstances cannot later on actions or defenses founded upon a written instrument and
say, “Oi, there was improper service of summons upon my provides the manner denying it. It’s more controlling than
person because it was served at the wrong address.” You Rule 6 Section 10, which merely provides the effect of failure
cannot say that anymore because you already admitted your to file a reply. Thus where the defense in the answer is
personal circumstances which includes his address where based on actionable document, a reply specifically denying
he can be served with summons and notices coming from under oath must be made. Otherwise the genuineness and
the honorable court. Diba? That’s the effect of an admission. due execution of the document will be deemed admitted.
It may be …but if you look at it, there’s a lot of legal
ramifications. So here in Cassette Realty vs PhilBanking Corporation,
where the Supreme Court said that the filing of a reply is
Another example, Rule 8 Section 8, how do you contend mandatory. If you want to avoid the effect of implied or
actionable document? What is an actionable document? automatic admission of the genuineness and due execution
Actionable document is the document which is the very of an actionable document.
basis of a party’s cause of action or defense.
What else? Rule 8, Section 11. Material averments in a
An example there would be a promissory note. What’s your complaint other than those to the amount of unliquidated
cause of action? To collect an unpaid loan. What’s your damages shall be deemed admitted when not specifically
actionable document? Your promissory note. So, how do denied. Meaning? General denial and remember that under
you plead it? You have two options right? You can either the rule on pleadings, general denial is an admission. It
retype it in full or you can attach it and make reference to it. constitutes an admission.
That’s how you plean an actionable document and you have
to plead it under oath. Now, how do you contest it?

The genuineness and due execution of the instrument shall So, what was I forced to do considering that after a reply,
be deemed admitted unless the adverse party under oath there was supposed to be no more pleadings allowed? How
specifically denies them and sets forth, what he claims to be do you contest that? How do you now counter-act upon this
the facts but the requirement of an oath does not apply mind-conditioning upon the judge? They say that the

26
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

proper pleading to file would be a rejoinder to the reply. •Physical or Mental examination of persons (modes of
But, I don’t believe in a rejoinder. Wala mana sa Rules of discovery)
Court ang rejoinder. So, what did I file? A comment to the
reply because a comment can always be allowed. It’s like a Depositions cannot serve as a substitute for testimony in
manifestation before the court. court. The deponent must be actually brought again in
court, as a general rule, for his testimony to be admitted. In
What else? Effects of amendments to pleadings, if you effect, he has to re-testify. But be mindful of the instances
recall? An amended pleading supersedes the pleading that where the deposition itself is considered as testimony.
it amends. However, admissions in superseded pleadings
may be received in evidence against the pleader and claims CONSTANTINO VS. HEIRS OF CONSTANTINO
and defenses alleged therein not incorporated in the
amended pleading shall be deemed waived. So, diba Judicial admissions are legally binding on the party
remember there’s a big difference between amended making the admissions. Pre-trial admission in civil cases is
pleadings and supplemental pleadings? When you talk of one of the instances of judicial admissions explicitly
supplemental pleadings, they exist side by side with the provided for under Section 7, Rule 18 of the Rules of Court,
pleading that they supplement. When you talk about which mandates that the contents of the pre-trial order
amended pleadings, it supersedes, it abrogates the pleading shall control the subsequent course of the action, thereby,
which it amends. defining and limiting the issues to be tried.
So let’s say for example you made an admission in your
answer but you amended your pleading as a matter of right,
when can you do it? Within the period for filing a reply for
as long as no reply has been served upon the defendant. So if you make confessions during pre-trial, that’s very
You can amend your answer as a matter of right. Right? good. Why? Because the court doesn’t have to expect proof
of a matter that has already been admitted. And remember
Now, you changed your theory of the case. So before, you the effect as well that –
admitted that Yes, there was a debt that I contracted. Admissions made are binding upon the parties who made
Nangutang ko sa plaintiff but he already condoned it. So, them.
you had your original answer and now, because
amendment is still a matter of right, no reply has been filed, Now take note that, a party who makes a judicial admission,
you changed your theory. You changed your defense. Now, you cannot later on challenge that cause that constitutes as a
your defense is “I don’t know the plaintiff. I have not waiver of proof. Your ability to prove or disprove
contracted a loan with the plaintiff.” something is waived. Production of evidence is dispensed
with. A judicial admission also removes an admitted fact
from the field of controversy.
July 11, 2018 55:01 Lara Delos Santos
In other words, what’s the effect of the rule?
Judicial admissions are conclusive on the party making
Who in the blue hell is the plaintiff? So now it’s complete them. When you make an admission, you cannot refute that
denial. So what happens to the defenses that he made? admission anymore,

The admissions that he made in his original answer are also Let’s look at an example here:
superseded. But, take note of this effect, “admissions made
in superseded pleadings may be received in evidence A plaintiff sued the defendant for collection of sum of
against the pleader. money. The defendant denies the existence of the debt and
counters that it was her deceased parents who owed the
So they may no longer be considered as judicial admissions plaintiff money when they were alive. Therefore, according
but they are now, extra-judicial admissions that can be to the defendant, what the plaintiff should have done is to
admitted in court, provided, they are properly pleaded and sue the estate of her parents rather than sue her in her
proved by the adverse party. Kinahanglan nimo iplead and personal capacity as heir.
iprove siya.
However, during the trial, the following cross examine took
VERBAL OR WRITTEN ADMISSIONS place:

Now what about during trial? Lawyer: you also know that the respondent was into
It could be verbal or written. lending?
Accused: Yes, madame.
A verbal judicial admission could take the form of a Lawyer: Because she is in lending, you have borrowed
manifestation or testimony in court. money also?
Accused: Yes, madame.
A written judicial admission could be in the form of Lawyer: Separate from your father?
motions, written manifestations, briefs, memoranda, Accused: Yes, madame.
affidavits, and even in the submission in answer to a request Lawyer: You borrowed money from the respondent
for admission. separate from your father prior to his death?
Accused: Yes, madame.
ADMISSIONS IN OTHER STAGES OF THE CASE
Unsa gani iyang defense? Wala siya nangutang. Ang
1. Pre-trial where admissions and stipulations of facts are nangutang kay iyang parents. Nut what do youcall that?
mandatory subjects of pre trial That is an admission and therefore you are not allowed to
2. Availment of discovery procedures before trial, or contradict.
pending appeal such as:
•Depositions ODIAMAR VS VALENCIA
•Request for admission

27
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Having admitted that she obtained loans from respondent concede it as an admission, the judge too could see that
without showing that the same had already been paid or there was really no judicial admission made.
otherwise extinguished, petitioner cannot now aver
otherwise. Take note that under the OLD RULES OF EVIDENCE, this
is the only exception to the rule that a judicial admission
It is settled that judicial admissions made by the parties in binds the parties making them.
the pleadings or in the course of the trial or other
proceedings in the same case are conclusive and do not ATLAS CONSOLIDATED MINING VS CIR
require further evidence to prove them. They are legally
binding on the party making it, except when it is shown In the present case, the supposed mistake made by the
that they have been made through palpable mistake or that counsel of petitioner corporation is one of law, for it was
no such admission was actually made. grounded on his interpretation and evaluation that
Revenue Regulations No. 3-88 and CTA Circular No. 1-95,
SANTIAGO VS DELOS SANTOS as amended, did not apply to his client's cases and that
there was no need to comply with the documentary
An admission cannot be controverted by the party making such requirements set forth therein.
admission and are conclusive as to him and that all proofs submitted by
And although the counsel of petitioner corporation
him contrary thereto or inconsistent therewith shall be ignored whether
objection is interposed. advocated an erroneous legal position, the effects thereof,
which did not amount to a deprivation of his client's right
That is why I told you, admission during trial is stronger to be heard, must bind petitioner corporation. The question
than all proofs. is not whether petitioner corporation succeeded in
establishing its interests, but whether it had the
Take note of the requirement that for it to qualify as a opportunity to present its side.
judicial admission, it must be made in the same case.

REPUBLIC GLASS VS QUA “NO SUCH ADMISSION WAS MADE”

To constitute a judicial admission, it must be made in the Meaning it’s just that the other party is saying that you have
same case in which it is offered. If made in another case or made an admission. Like my old case before, the counsel
court, the fact of such admission must be proved as in the kept saying “Thank you for admitting…. Thank you for
case of any other fact. Although, if made in a judicial admitting…” when in fact, I didn’t. So what doctrine is that?
proceeding, it is entitled to greater weight. The buot buot doctrine. LOL So what this is is that you are
now saying I did not make an admission or that the
Let’s say for example: statement was taken out of context or not in the sense that
In Branch 1, you have a case between A and B. In Branch 2, the admission is made to appear as in the case of…
you also have another case also between A & B. In the case
in Branch 1, A made an admission against his interest to ATILLO III VS CA
favour B. Can B use that in his case in Branch 2?
If a party invokes an admission of an adverse party but
He can use it in Branch 2 but not in the concept of judicial cites the admission out of context, then the one making the
admission. admission may show that he made no show admission or
that the admission was taken out of context. This may be
What will you do if you are the lawyer of B in Branch 2 and interpreted to mean not in the sense in which the
you want to use the admission of A in Branch 1? admission is made to appear that is the reason for the
codifier “such”.
Secure a copy of the transcripts of stenographic notes where
your opponent made the admission. Plead it and prove it Take note that an admission made by the counsel is binding
before Branch 2. It is an extrajudicial admission in so far as upon the client. So like in my example earlier, my fellow
Branch 2 is concerned. It can only be considered as judicial officemate, where to be safe, he would not admit anything,
admission if you are talking about Branch 1. Get a piece and even the name of his client. Why is that? Because anything
prove it. that you say would bind the client. So you have to proceed
with caution every time. And when you make an admission
Do you need to present the staff who made the stenographic of something, consult your client first. Ask him if it is okay if
notes? we admitted this because if we do, these are the legal
consequences.
No. Because of presumption in the regularity of transcripts This for me is an important case: FULE DOCTRINE
of stenographic notes. In effect, it’s self-authenticating. It is
also strong proof that it was made in a judicial proceeding. FULE VS CA

Pre-Trial is mandatory also in mandatory in criminal cases.


EXCEPTIONS: So in this case what happened here was of course, stipulation
of facts. Then what if the accuse admits or stipulates as to the
Admissions may be contradicted only by showing that it existence of certain facts and the effect of that would be for
was made through palpable mistake or that no such him to make a confession or an admission of his guilt in the
admission was made. criminal case. Can he be convicted based on confessions or
admission? Of course, you can. In fact, a mere extrajudicial
“MADE THROUGH PALPABLE MISTAKE” admission together with the corpus delicti would be
What do you mean by palpable? It means it is obvious to sufficient to warrant a conviction.
everybody, to both sides. Like the plaintiff would not
concede it as an admission, the defendant would not What happened here was, there was a pre-trial agreement.
In a criminal case, you are allowed to secure from the

28
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

accused a confession pursuant for example to a Plea establish the guilt of the accused beyond reasonable doubt
Bargaining Agreement. Let’s say you committed serious even without the unsigned confession.
physical injuries and ingon ani ang penalty. But, if you
plead guilty tp slight physical injuries or maltreatment only
then, ito nalang. Plead guilty ka nalang para di na tayo mag
trial. That’s plea bargainin. Now if he agrees, confess to the
commission of slight physical injuries, in effect, he is free to
go if he is a first time offender. Pwede ka ma place under
probation or ma-fine because it is a very light offense. Now,
if that was made durng the pre-trial conference in a criminal
case, it has to be signed by the accused and his counsel
because if there is no signature of the accused and his
counsel, the n the stipulation of facts, the confession made
by the accused, becomes inadmissible. That’s the Fule
Doctrine.

It has been articulated more properly in Rule 118 Section 2.

RULE 118, Section 2.Pre-trial agreement. —

All agreements or admissions made or entered during the


pre-trial conference shall be reduced in writing and signed
by the accused and counsel, otherwise, they cannot be used
against the accused. The agreements covering the matters
referred to in section 1 of this Rule shall be approved by
the court. (Sec. 4, cir. 38-98)

Precisely what happened in Fule. The Court has to see if


gipirmahan ba gyud o wala. And now the court will have
the ability to call for example, the lawyer of the accused. Did
you really mean to make that confession. That’s because of
Fule. So when it reached the SC, the court said it is
inadmissible. Whatever he confessed to during the pre trial
conference which was reduced in the pre trial agreement
but was not signed by the accused and his counsel, it is
inadmissible. Therefore, accused was acquitted despite the
fact that during pre trial, he actually made a confession. So
what did the prosecution do? Because nag confess, they
rested its case. Admission made in trial is greater than all
proofs. Ngano pa ko magpresent ug evidence. Sc said:
acquitted.

Here’s a similar case, King vs People. You have to compare


what happened in King and in Fule.

So what happened in King? It’s a BP 22 case. Same thing


happened here. They had a pre trial conference. The accused
admitted to the signing of worthless checks. The pre trial
again was not signed by the accused and his counsel as
required in then Sec. 4 Rule 118. And so, citing Fule vs CA,
Betty King argues that there is no basis for conviction.
Inadmissible daw. The SC here ruled: True. A pretrial
agreement not signed by the accused and counsel is
inadmissible. However, the conviction was based not on the
agreement but on the documents presented as evidence
during the trial, all of which was presented without any
objection from her counsel.

General Rule: Fule. Inadmissible because it was unsigned,

But what the prosecution did was to submit the documents


for the consideration of the court. All documents that would
create fact of guilt beyond reasonable doubt. So these were
admitted by the court. And the counsel of the accused failed
to object. What happens if you fail to object? Your client
loses.

So what’s the difference between King and Fule?

In Fule, that was all the evidence of the prosecution. But in


King, the documents that were presented without any
objection from the accused’s counsel already sufficed to

29
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

July 18, 2018 1:00:00 – 16:00:00 (Alexander Abonado)E to draw conclusions or inferences from the objects
presented. Thus for Demonstrative evidence what is
important is not the object but the information that the
RULE 130 objects create.
RULES OF ADMISSIBILITY Recall my example on Demonstrative evidence; I call that
the case of the flying man. Nabangaan siyag motor and
So we are going to talk about Rule 130 already, admissibility
according to his testimony, he flew to a distance of 50
of objects and documents.
meters. And so it’s quite improbable for somebody na
Let’s talk about sections 1 & 2 first. Take note we classified nabangaan ug motor ug nilupad ug 50 meters. So in order
evidence before in three, namely: object, documentary and for me to impress upon the mind of the court that my
testimonial evidence. witness is not lying/sane.

When you talk about object or real evidence, you are talking I had to resort to a rudimentary diagram, and asked the
about evidence that is addressed to the senses of the court. witness to point that if diri ka nabangaan asa man ka nakit-
These are evidence which are exhibited to, examined or an pagkahuman nimo nalagpot.
viewed by the court.
By pointing, we were able to estimate the distance of the
Take note that while the law talks about being viewed by actual place of bumping and the place where he was found.
the court ang object evidence. We are talking here about all And I was able to create that idea upon the court, that ing-
the senses of the court. Whatever the court sees, like a scar ato ang kakusog sa impact. Rather than the completely
that is visible, let’s say sa face sa usa ka victim. Whatever incredible and almost miraculous 50m, which is again very
the court hears; for example, a taped blackmail call. That very far away.
would be appreciated by the courts sense of hearing.
How do we distinguish between real and demonstrative
Or sense of taste; like cocaine, and the court is not convinced evidence?
that it’s cocaine, so the court will taste. Sense of touch;
Real evidence is a tangible object that actually takes some
example, girl was raped because she has big jugs, so the
role in the matter that gave rise to the litigation. Like a gun
court will touch to determine if she really has big jugs. or a knife. While a Demonstrative evidence is tangible
(LOL) Sense of smell; Indians, mao ra jud na akong evidence that merely illustrates a matter of importance in
maingnon sa inyo.
the litigation.
We are talking here about all of the senses of the court and Real evidence intends to prove that the object is used in the
that is in the appreciation of object evidence the court uses
underlying event. The knife that was used to stab the
the senses of sight, touch, hearing, taste and smell.
complainant, fortunately the complainant survived.
Take note that it is called real evidence not to contrast it Demonstrative evidence on the other hand, intends to show
with real and fake. But rather real because it comes from the that the demonstrative object fairly represents or illustrates
term res, or the thing. Res ipsa loquitur. The thing speaks what it is alleged to be illustrated.
for itself.
Note that with respect to real evidence, the evidence is the
So its res. It’s an object. It’s the thing or the object that is object itself. But when you talk about Demonstrative
addressed to the senses of the court. evidence, although using an object to illustrate a matter
before the court, the evidence to be considered there is the
We have also discussed from the case of People v. Lavapie, testimony as elicited by the demonstrative evidence.
the different types of evidence and what appears to be a
hierarchy, a preference among the different types of Like in a map or a diagram or a chart. So what is the
evidence and which one the court actually prefers. evidence that the court will consider there? It’s the
testimony that comes from the demonstrative object.
So the court actually prefers object, real or physical evidence
as evidence of the highest order because it speaks more Let’s go to section 1. What is object evidence?
eloquently than a hundred witnesses. Section 1. Object as evidence. — Objects as evidence are
Then later on the court also made the preference between those addressed to the senses of the court. When an object is
testimonial and documentary evidence in the case of GSIS v. relevant to the fact in issue, it may be exhibited to,
examined or viewed by the court
CA.
The court also calls real or object evidence as Autoptic
Noted that between testimonial and documentary evidence
Preference, it simply means, a tribunals self-perception or
there is really very little room for choice. But between the
autopsy of the thing itself.
two it is documentary that prevails over testimonial.
In the case of Balingit v. CA (Feb. 9, 2007) what the court
Between oral and written testimony, mas naay preference
was still discussing would be kana bitaw mga election rules
ang oral testimony in court because there is flexibility on the
that I suppose would no longer or no longer applies right
part of the questioner to adapt his questions to elicit the
now considering that we change into automated elections.
truth and in order to ferret out the certain answer.
But before you have these rules on the appreciation of
Informally there is a fourth class of evidence recognized by ballots, which to my mind would no longer bear any
the rules, we call that demonstrative evidence or evidence in importance in elections where mag shading na lang ta. But
the form of objects that have for themselves no probative sa mga dili pa automated/ mag suwat gihapon ka, the dem
value but is used to illustrate and clarify a factual matter or sonams rule (sounds like) mag apply gihapon na siya.
issue.
Autoptic means seeing with one’s own eyes. Coming from
Demonstrative evidence as evidence is not prohibited, the words “auto” and “optic” meaning self and then
although not specifically mentioned in the rules of court. In pertaining to the eyes or belonging to or connected with
appreciating Demonstrative evidence the court uses the personal observation which is related to the term autopsy.
same five senses. But more importantly, applies intelligence

30
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

One case that you really need to be familiar with, not Now, what you need to really pay attention to is the last
because it’s useful only in my subject but because it’s useful phrase, “offered as proof of their contents”.
also sa subject ni madam: Calde v. CA
They must be presented into evidence for the consideration
It’s a succession case. June 7, 1994. of the court, not to prove that this paper is white in color or
that it is rectangular in shape, but you have to offer it for
Here there is a notarial will. And remember that in a what is written on the document. That is what Section 2 is
notarial will there is a requirement that witnesses should all about.
sign in the presence of one another. Here 2 of the witnesses
testified that only 1 pen was used in the signing of the will. With that, I propose to you one thing: A document is not
There’s also no mention that the pen was that hybrid pen necessarily paper, and paper can also be treated as object.
which has all the colors.
Case: The Last Will of Cecil George Harris (Canadian case)
Now only 1 pen was used, but how come, the court noted,
by using autoptic preference, by using self-observation that In 1948, around 10 in the morning, Harris accidentally put
there were 2 colors of pen used. There’s black and then his tractor in reverse while making adjustments thereto. The
there’s blue. tractor moved backwards and trapped Harris between the
tractor and another piece of equipment, pinning his left leg
According to the testimony of the witnesses – 1 pen was under the xxx. Naipit siya. Harris remained trapped until
used. According to autoptic preference – there were 2 pens, 10:30 in the evening. So that is, 12 hours already before he
black and blue. What would prevail? was found by his wife. He was taken to the hospital where
he later died from his injuries.
According to the court, apparently because there were 2
colors of pen here, the notarial will was not subscribed and Some days later, their neighbors, who were surveying the
attested by the instrumental witnesses during the execution scene of the incident, noticed an inscription in the tractor
(?) fender which read: “In case I die in this mess, I leave ALL
TO THE WIFE.” Then, he signed it.
The signatures of some of the attesting witnesses were
written in blue ink while the others were in black. This The fender was removed from the tractor and was
discrepancy was not explained by the petitioner. Nobody of determined by the court to be a valid holographic will.
the 6 witnesses testified that 2 pens were used by the Now, that is based on their law because here in the
signatories of the 2 documents. In fact of the petitioner’s Philippines it has to be entirely written, dated and signed by
witnesses even testified that only 1 ball pen was used in the testator.
signing 2 testamentary documents.
It was admitted into probate as a valid holographic will. But
And the SC proceeded now to describe what autoptic when you talk about wills, diba we have always imagined it
preference is. That the person who is of small height or is of as the expression of the testator’s intent reduced to paper.
dark complexion, as to such matters the perception of the How could you imagine a will that is not on paper?
tribunal that the person is small or large or that he has dark
or light complexion is a mode quiet relief which is However in the case of Harris’ will, it is not in paper as it
independent of any inference from either testimonial or was scratched in a tractor fender yet it was valid. Applying
circumstantial evidence. our own laws on Evidence, an important requirement to
remember is that a document must be offered as proof of its
It is the tribunal’s self-perception of autopsy of the thing contents.
itself, from the point of view of the litigant party furnishing
the source of relief, it may be termed as autoptic preference. Does the law actually distinguish what material in which
the content must be written? Does it matter? IT DOESN’T
And in this case the autoptic preference contradicts the MATTER.
testimonial evidence produced by petitioner. The will and
its codicil upon inspection by respondent show in black and The material that contains written expressions does not
white or more accurately in black and blue that more than 1 have to be papyric in nature, in the same way that objects
pen was used by the signatories thereto. Thus it was can be in the form of paper if it is offered, not as proof of its
_____(15:40) nor baseless for the court to disbelieve contents, but because of its physical attributes. For example,
petitioner’s claim that both testamentary documents in yellowing on the surface of the paper which proves that it is
question were subscribed to in accordance with the an ancient document; very very old document. Or that it is
provisions of article 805 of the civil code. crumpled, as evidence of the fact that the person who read
it, has his heart broken.
So the SC was actually saying, “nagpataka mo.”
A document does not have to be paper. Paper is not always
0:16:01- 0:32:00 (Angel Deiparine) a document. It can be an object.

You did not actually subscribe and attest to the will in one CLASSIFICATIONS OF OBJECT EVIDENCE according to
occasion. Coz you were saying, only one pen was used. But Moran:
actually, duha ka pen. So, with that, the will was not
admitted. 1) Those object evidence which consists in the
exhibition or production of the evidence inside the
Let’s compare that with documents. I’m sure you have courtroom.
memorized Section 2.
An object is brought into the courtroom for the
consideration of the court. Example: Like, the
Section 2. Documentary evidence - Documents as evidence objects of the crime (i.e. unsa tong gikawat?) or the
consists of writings or any material containing letters, means to perpetrate the crime: the murder weapon.
words, numbers, figures, symbols or other modes of written (gun, knife)
expressions offered as proof of their contents.

31
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

They are brought into the courtroom because they OJ Simpson was accused of killing his wife Nicole Brown.
are susceptible of manual delivery to the OJ Simpson married Nicole Brown. The wife was known to
courtroom. Pwede gunitan ug tanawon sa korte. be promiscuous. Eventually, they were estranged from one
another.
2) That which consists in the inspection of the object
outside the courtroom. Like, ocular inspection in a What was left in the crime scene were a pair of bloody
boundary dispute. Or ocular inspection of a crim gloves. Now a receipt was also found in the house of OJ
scene. Simpson saying that he purchased prior to the crime a glove
similar to the one that is found.
Atty. JZE example/experience: One of the cases I handled
was this. It’s a case for theft. Unsay gikawat? Mangga. The So, there’s this circumstantial proof that if those gloves
complainant was claiming ang gi harvest kuno na manga sa belonged to him, he was the one who killed. He was there at
akong kliyente belonged to him. Our defense was daghan the scene of the crime. If he wore the same gloves, he must
kayo mig manga na gi harvest, but there’s this one tree, we have been the murderer.
admitted, that lies precisely in between the boundary line of
The prosecution wanted OJ Simpson to try wearing the
the two properties: one belonging to my client, and one
gloves in the courtroom, infront of the jury, to leave the
belonging to the complainant.
impression that it fit him. It fit him like a glove. Therefore, it
What we did is that we asked the court for an ocular must have been him.
inspection, precisely, to ascertain if the mango tree in
question is really one in the land of complainant or in the
land of my client. Lo and behold, when he was finally forced to wear the
glove, it did not fit. They’re small.
We determined that ¾ of the tree belonged to my client and
¼ of the tree, specifically the one with a branch, was inside The jury acquitted OJ Simpson. So the battle cry of OJ
the property of private complainant. Imagine, sa tibook Simpson’s lawyer here was: IF THE GLOVES DON’T FIT,
harvest, theft? Unya, isa ra diay ka branch ang naa sa iya YOU MUST ACQUIT.
property?
***then chismis about OJ Simpson re: Chloe Kardasian***
And so, we conducted an ocular inspection and the court
went to the area. And we determined, based on the mohons,
that the majority of which belonged to my client. We were
32:01-48:00 (Anton Maligad)
able to get an ACQUITTAL because of that. Unya the court
made an estimate kung pila ka manga tong naa sa sanga,
gipabayaran. That’s it. We were able to secure an acquittal
because of that ocular inspection. Requisites of Admissibility of OBJECT EVIDENCE:

It is discretionary upon the court to go to the place where a. Relevancy to the fact in issue in the case—basic
the object is located, when the object evidence cannot be requirement of relevancy. It must have relationship to
brought. the fact in issue at to induce belief as to its existence or
non-existence. Although the object evidence may not
3) Object evidence that which consists in be directly material to the fact in issue, it can be
experimentation. It could be inside the courtroom considered as a collateral matter. Where it may be
or outside the courtroom. allowed if it tends in any reasonable degree to
establish the probability or improbability of the fact in
Experimentation in evidence refers to AUTOPTIC
issue.
PROFERENCE that requires the manipulation of physical
objects within or without the courtroom to determine the
facts in issue. Class Discussion:
Example of inside the courtroom: An accused, a frail and
A person’s appearance is relevant and is visible as object
short individual is charged with murdering Mateo by
evidence the same being addressed to the senses of the
repeatedly bashing his head with a sledgehammer. The
court.
defense asked the accused, the short guy, to brandish the
sledgehammer and demonstrate before the court the
Q: In relation to the definition of relevancy, “when is
physical impossibility of him using it as a murder weapon.
a fact in issue?”
Kay bug-at kaayo. The defense may also invite the court and
the prosecution to similarly manipulate the murder weapon
A: When parties do not agree about it.
so that they’d know kung bug-at ba gyud.

What else? Blood sampling inside the courtroom in the Example:


presence of counsel. In the case of People vs Yatar, in open In civil cases, A is claiming that B is indebted to him.
court, gikwaan ug dugo si Yatar for purpose of DNA B, of course, denies liability. That is a fact in issue
testing. because the parties do not agree about.

What about OUTSIDE THE COURT ROOM? In a murder case, the prosecution proposes that the
accused is guilty of the killing the victim. But the
A crime scene re-enactment. In a murder where the accused accused is claiming that he is innocent. Therefore, the
contends that the alleged murder weapon retrieved from his fact in issue is the innocence of the accused. It is a
person is defective and is therefore an ineffectual means for matter or fact that is properly in issue in case.
him in committing the crime, the gun can be test-fired
outside the court room, and the court can see for itself kung The prosecution proposes, then the accused denies.
muboto ba gyud. There is a conflict as to this fact.
Another case: OJ SIMPSON CASE:
Q: Now, what is the fact in issue of the prosecution

32
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

for the valuation of RA 9165 that happens after a buy- he told the police that he was still hiding drugs
bust operation? underneath my bed.

A: The fact in issue for the prosecution is that the After which, the police went on and searched his bed
accused is selling drugs as proven by the buy-bust and indeed drugs were found—but such are
operation. But, the accused is denying such act. inadmissible. The inadmissibility of such evidence is
Therefore, that is the fact in issue. what we call the Fruit of the Poisonous Tree Doctrine.

[People vs. Reyes (1994)]—That the admissibility of It is not automatic. You have to distinguish between
marked money as evidence is governed by Section 1, Rule the Exclusionary Rule and the Fruit of the Poisonous
130 which provides that when an object is relevant to a fact Tree Doctrine.
in issue it may be exhibited to, examined, or viewed by the
court. A marked money being paid as consideration for the The Fruit of the Poisonous Tree must be evidence that
shabu was found to be relevant to the fact in issue, which is is derived from evidence illegally obtained (the illegal
the selling of drugs. search and the illegal arrest).

You need to remember, that in a buy-bust operation Exclusionary Rule Fruit of the Poisonous
you have to simulate the elements of a contract of Tree
sale. Evidence originally Derivatives of illegally
obtained seized items
Elements of a contract of sale:

1. Consent—the meeting of the offer and the b. Object Evidence must be authenticated—it must be
acceptance of the thing/object which is the proven to be what it purports to be.
cause of the contract;
2. Subject matter—in this case the illegal Class Discussion:
drugs;
3. Price certain in money—price is equivalent Optic Proference must be relevant and it is
which would be the consideration, which is relevant only if it makes a fact of consequence
the marked money. more or less probable, than the absence of the
optic preference.
So there are two objects, which are considered as
object evidence in the prosecution of illegal drugs, by Object evidence in itself does not establish the
virtue of a buy-bust operation: factum probandum.

(1) The shabu itself or the illegal drugs; and There is no factum probandum provable solely
by object evidence.
(2) Marked money which simulates the
consideration in a perfected contract of sale. Example:
A shot B. The possible evidence showing that A
Now take note that object evidence, like any type of shot B would the CCTV footage.
evidence must pass the test of relevancy.
So the thing speaks for itself that A shot B? NO!
When an object is excluded by the law or these rules,
such as evidence, which is the product of the Fruit of How does that CCTV footage make its way to the
the Poisonous Tree Doctrine, then the object is courtroom? It has to be sponsored by testimonial
inadmissible. evidence by a witness.

Fruit of the Poisonous Tree Doctrine vs. Exclusionary Therefore, while the CCTV footage clearly
Rule: indicates that A killed B, that has to be
authenticated by the credible witness.
The fruit of the Poisonous tree as evidence is only
applicable to derivative evidence. So there is this object, which cannot be brought to
the court to be appreciated by such court, unless
On the other hand there is an exclusionary rule. An a witness testifies about it first.
example would be illegally seized items. For example,
there was no search warrant and the police searched So that is authentication. The object must be
your residence and then found illegal contraband. proven.
It requires that the admission of an object may be
Is that a fruit of the Poisonous Tree? Not yet! preceded by (testimonial) evidence sufficient to
support the finding that the object in question is
Such is just an application of the exclusionary rule. what the proponent claims to be.
That evidence obtained in violation of your right
against illegal searches and seizures are not to be Purposes of Authentication:
admitted in evidence.
1.) To prevent the introduction of an object different from
So what is the fruit of the poisonous tree in that situation? the one testified of—It is important that the very
object presented in court should be the one
Let’s say for example, there is already a violation of testified of because it would lead to dire
the exclusionary rule and by reason of that the accused consequences of the violation of the right of the
was arrested and then at the time that he was arrested accused.

33
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Example: RA 9165 (Comprehensive Dangerous Drugs Example: It could be markings placed on the object,
Act) such as initials, his pictures in a digital camera or a
watermark.
What would determine the penalty to be imposed on
the accused or the convict in a drugs case? 2.) By the peculiar characteristics of the object—Certain
physical features which sets it apart from a particular
Isn’t that a fact that it is the quantity of the drugs found class by which it is readily identified.
in the person of the accused?
Example: A hole caused by burning the sweater or a
The more the amount of the shabu or drugs found in broken hilt of a knife. So that makes the murder
his person the greater the penalty. weapon unique in a sense, because it had a broken hilt.

3.) Proof of Integrity—By proving that there was no break


If what was found in the person of the accused was 0.5 in the chain of custody in the event that the object is
grams and upon the presentation of the prosecution the passed to the possession of different persons.
amount of drugs presented amounted to 10 grams, then
there must be something wrong.
Now remember in a criminal investigation. If you find
evidence, you will not hold unto the evidence forever. For
2.) To ensure that there has been no significant changes example, you are part of the forensic team that analyzed the
in the object’s condition crime scene. You will not be the custodian of the evidence.
The evidence has to transfer from one person to another, till
Class Discussion: it gets into the hands of the forensic chemist. Then the
forensic chemist will then safeguard it and make a report.
We go back to the case of OJ Simpson.
That’s what happens. One person will not have the
It would have been so easy to convict OJ Simpson had possession of that evidence forever.
there been no mishandling of the evidence in this case.
This means that there is a need to prove the chronological
At the scene of the crime, the CSI/NCIS collected the sequence by which the evidence was handled only by
evidence in the crime scene. persons who by the reason of their functions or office can be
reasonably expected to have right or duty to possess or
One of the members of the CSI/NCIS found and collected handle the object.
blood samples.
When the object passes to the possession of a stranger, then
there is doubt as to the integrity and not on the identity of
Now, it would have been easy to convict OJ Simpson if
the object.
such blood samples found in the crime scene matched his
person. It raises the question that if you weren’t really 4.) Proof of Preservation—By proving that the preservation
there, then why were your blood smears found in the crime of the object, which consists of showing that the object was
scene. kept in a secure place as to make contamination or alteration
difficult. It must not have been brought out until its
But you know what happened there? presentation in the court.

So, the officer who collected the vial containing the blood
took the samples and placed it in his pocket, went home,
took a shower, took a nap, changed clothes, got the vial of c. It must not be hearsay—it must not be information
blood, placed it in his pocket, went to the police station, received from another that one cannot adequately
and turned it over. substantiate.

So there is a break in the chain of custody here that he d. It must not be privileged or otherwise excluded—self
cannot explain. explanatory

Why did he go home with that vial of blood that is a very e. It must meet any addition requirement set by the
indispensable evidence to prove that OJ Simpson had the law—i.e. Section 21; RA 9165 (Chain of Custody
opportunity to kill? Requirement in Drugs Cases)

So the lawyer of OJ Simpson was able to exclude the


evidence. 48:01 – 1:04:00 (Benrich Tan)

At the very least there is reasonable doubt, because they “Contamination and alteration”. It must be properly
were not able to make sure that there had been no reserved.
significant changes in the object’s condition
Later on, we will discuss the Hubert Webb case (which
involved rape) and how it relates to this. In that case, the
Now, let’s go to the actual process of authentication. prosecution case had biological sample (semen) left in the
victim. Years later, the SC came up with the Rules on DNA
Authentication Process: Evidence, which provided for post-conviction DNA testing.
A biological sample could be taken from Webb and
1.) Introduction of proof of identity—It is usually done compared with the biological sample taken from the victim,
through the testimony of a witness as to objects, which and be compared, due to the witness (Alfaro) stating that
are readily identifiable by sight. Provided, that there is she saw Webb rape Carmela Vizconde. If it matches, clearly
a basis for the identification by your senses. he would be the rapist. But Webb also wanted the post-
conviction DNA testing so he could prove he wasn’t the one
who raped her. However, the object was nowhere to be

34
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

found (neither in the Court nor the NBI’s custody). Now Would that contention be tenable? NO.
that was one of the things that the Court addressed in that
case, which was preservation of the object and on how it Ruling:
could have been used later on for post-conviction DNA
The general rule in this jurisdiction is that photographs,
testing. But again, we will talk about that case later.
when presented in evidence, must be identified by the
photographer as to its production and testified as to the
circumstances under which they were produced. The value
Process in Authenticating Specific Objects of this kind of evidence lies in its being a correct
representation or reproduction of the original, and its
As to photographs, maps, diagrams admissibility is determined by its accuracy in portraying the
scene at the time of the crime.
Authenticity is the act of proving the accuracy of the things,
persons, or places in the photograph which may be through The photographer, however, is not the only witness who can
the testimony of the photographer or anyone familiar with identify the pictures he has taken. The correctness of the
the person, places, or things shown therein. photograph as a faithful representation of the object
General Rule: The normal way of authentication is by portrayed can be proved prima facie, either by the
presenting the photographer in court. testimony of the person who made it or by other competent
witnesses, after which the court can admit it subject to
However, my opinion is that everyone is a photographer. impeachment as to its accuracy.
Gone are the days where you have to go to a photo studio to
get a picture taken. Now, it’s conceivable that a photograph Here the photographs are admissible as the correctness
thereof was testified by the companions of the victim (who
(as an object evidence of a specific crime) is merely taken
happened to be in the photograph itself).
from the internet, and we don’t know who the photograph
is. Our tendencies nowadays is for a picture gone viral Tape Recording
(where it is shared by a seemingly endless line of people) to
be reached into the eyes of a complete stranger. If that is Is the authentication limited to the person who made the
your evidence, how can you even authenticate it when you tape recording? Torralba v. People.
don’t know the photographer? There are no watermarks in
the picture stating that it was taken by a specific person. TORRALBA VS. PEOPLE
Due to this, the exception applies.
Facts:
Exception: Anyone who is familiar with the persons, places,
The accused here is charged with libel. Presented as
or things shown can testify. Also applies when it is
evidence is a tape recording of the radio broadcast made by
impossible for the photographer to testify.
the daughter of the complainant.
Rationale: Sison v. People. It’s no longer exclusive to the
person who took the photograph. It rings true today
because anyone with a smartphone can be a photographer. The daughter was not presented as a witness. Only the
complainant who, in open court, testified that he was not
Example on authentication in open court:
familiar with the process of the recording. When he was
Court: Are you the person in the picture? asked what was the process of recording, he said that he
does not know.
Witness: Yes.
Issue:
Court: What happened?
So is the tape recording properly admitted?
Witness: X was being killed, and we happened to be in the
picture. Ruling:

Court: Is this photograph an accurate representation of what The person who actually took the recording must be
happened to you that day? presented in order to lay the foundation for the admission of
the tape recording.
Witness: Yes.
In our jurisdiction, it is a rudimentary rule of evidence that
Court: Authenticated. before a tape recording is admissible in evidence and given
probative value, the following requisites must first be
established, to wit:
SISON VS. PEOPLE, 1. a showing that the recording device was capable of
taking testimony;
NOVEMBER 16, 1995.
2. a showing that the operator of the device was
Facts: competent;
3. establishment of the authenticity and correctness of
In a prosecution for murder, the prosecution presented the recording;
photographs showing the accused mauling the victim. The 4. a showing that changes, additions, or deletions
person who took the photographs was not presented as a have not been made;
witness. Instead, the prosecution presented the companions 5. a showing of the manner of the preservation of the
of the victim who testified that they are the ones in the recording;
photographs. 6. identification of the speakers; and
7. a showing that the testimony elicited was
The defense objected the admissibility of the photographs
voluntarily made without any kind of inducement
because the person who took the photographs was not
presented as the witness. Atty JZE: In lieu of all requisites showing the testimony
done was voluntarily made, I’d like you to observe that
Issue:

35
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

these are only applicable during the period where crime scene. How do you mark a footprint?
everything was analog, not digital. Although you can make casting, a plaster casting,
of a footprint and later on use it to make a model
Requisite #1: Now cellphones are capable to of taking or a replica of a footprint. So ginabuhat nah siya sa
testimony. TV. I don’t know in real life kung ginabuhat ba nah
siya. Personally, wala pa pud ko ka try so you
Requisite #2: Is there a requirement that you need a
cannot gain any insight from me about ani.
bachelor degree in order to record? No. Everyone is
presumed to be competent Requisite # 3: MUST NOT BE HEARSAY
Requisite #3-4: In the era of digital recording, you can The witness testifying about the object must have personal
manipulate sounds. It’s difficult to prove now, because the knowledge of it. So dapat naa kay kalambigitan at least
ability to record is now shared among the general populace, anang object na nah.
not just a small populace.
You have personal knowledge. You can relate to it in other
Requisite #5: We’re talking about a physical cassette tape. words.
Now, we can easily make copies of recordings.
Hearsay, again, chismis.
So for me, these requisites should be changed, because the
SC should adapt with the changes of the technology. These “Ingon ni A, mao kuno ni ang knife na gigamit.” “Ingon ni
requisites are already antiquated. B, mao kuno ni ang butang na gikawat.”

Videos (from 2016 TSN, since Atty. JZE didn’t discuss this) So he has no personal knowledge of it because what he is
testifying in court about the object was merely relayed to
It is a lot easier than authenticating tape recording. You just him. He was merely told about that particular fact.
have to authenticate it just like authenticating photographs.
Mubalik lang ta sa doctrine sa Sison vs. People. It can be the Requisite # 4: MUST NOT BE PRIVILEDGED OR NOT
videographer, who will be presented or anyone competent, OTHERWISE EXCLUDED BY THE LAW OR THESE
according to the Supreme Court. Any other witness who can RULES (The Rules of Court)
testify as to its exactness and accuracy.
This means that the object must pass the Axiom of
Categories of Object Evidence (for purposes of classification) Competency.

Example:

1:04:01 – 1:20:00 (Christian Yu) - Wiretap recording proposed to be played in court;


- The exhibition of a private video which might
Okay, so let’s go to Categories of Object Evidence – for offend a person’s right to privacy;
purposes of authentication: - Fruit of Poisonous Tree
A. Unique Objects Now, one more Exclusionary Rule will be found in Article
III, Section 17 –
- Those that have readily identifiable marks.

Examples:
Right against Self-Incrimination
- A car that with a plate number MGA 239;
- A .45 caliber pistol with serial number 14344 (para “No person shall be compelled to be a witness against
sweet); himself.” This was our example earlier – experimentation
inside the courtroom.

PEOPLE VS. YATAR (May 19, 2004):


B. Objects made Unique
Does the use of blood samples taken from the accused
- Are those that are readily identifiable.
violates the right to remain silent and his right against self-
Example: incrimination?

- A bolo knife used to hack a victim, which could be Imagine what the prosecution here is trying to do and is
identified by a witness in court. being sanctioned by the court – kuhaan kag blood sample so
that it can be compared to the biological samples found at
Wala siyay unique distinguishing mark but it is the scene of the crime.
made unique because of the familiarity of the
If it matches then you are done.
witness of the same. “Di gyud nako malimtan na
iyaha gyud kong gi-hack anang very same na bolo So Yatar is complaining because probably, he knows that it
knife na nah. As a matter of fact, Judge, wala na will match. He is complaining that it violates his right
koy kamot. :P ” against self-incrimination kay pugson ko nimo og hatag og
biological sample.

Now, remember that your DNA can be found in practically


C. Non-unique Objects
every part of your body – hair, saliva, blood, etc. So with all
- Those which have no identifying marks and the more reason here because it is his blood.
therefore, cannot be marked also.
Gikuhaan siya og blood sample so easy to compare ka with
Example: the biological sample, in a crime of rape here, seminal
discharge.
- (Given by [Sir doesn’t actually know who the
author is] an unknown author) Footprints left at a

36
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

According to the SC, pataka ka lang. The kernel of the right According to the SC, pataka lng ka. The probative value of
is not against all compulsion, but against testimonial an object is not affected by the fact that it is beyond the
compulsion. So kanang pugson ka na mu-istorya. commerce of man.

The right against self- incrimination is simply against the Appellants raise the strange argument that exhibit C lacks
legal process of extracting from the lips of the accused an probative value because the subject thereof “marijuana” is
admission of guilt. It does not apply where the evidence beyond the commerce of man. That is simply absurd
sought to be excluded is not an incrimination but as part of according to the SC.
object evidence.
The transfer of marijuana was incidental to the arrest of
And so the SC said that a person may be compelled to appellants and the confiscation of the subject matter of the
submit to crime. Exhibit "C" is in the same category as a death
certificate and autopsy report which are admissible
- fingerprinting, evidence of the subject of the crime — the human cadaver
- photographing, which is also beyond the commerce of man. Transfer of
- paraffin, goods as a consequence or by virtue of police or state action
- blood and such as forfeiture, seizure, condemnation, confiscation did
- DNA, not fall within the phrase "commerce of man" even in its
broadest meaning.
as there is no testimonial compulsion involved.
Why did I choose this case? Because number 1, it is funny.
It is a purely physical or mechanical act. Kuhaan lang man
And number 2, it shows you that in lawyering anything
ka og dugo. Do you testify? You don’t. So it is just object
goes. You can come up with the weirdest most absurd,
evidence.
funniest and nonsensical arguments and it may even reach
One thing you need to remember, a postulate that you need the SC.
to remember is – Object evidence is NOT covered by the
The law is black and white only when you are in law school.
Right against Self-Incrimination.
Outside of law school, when you eventually practice law
What about handwriting? Can a person be compelled to what happens? You are free to use the law according to
produce a sample of his handwriting as basis for your own interpretation. There is no more right or wrong
determining his criminal liability as the author of a certain answer. What matters would be what the judge sees is true
document? or false.

Gipasulat ka og kanang kuan, whatever na ipasulat sa Kung tuuhan ka sa judge. Horay. Congratulations. Kung
imoha And then, i-compare nah siya sa usa ka document dili ka tuuhan, try and try until you die. Ing-ana lng man in
that is purported to be forged or perjured an document. the practice. But in the bar examinations. You will be taking
the bar soon enough, you are in 3rd year now. So in 2 years,
So writing – is it a purely physical or mechanical act? NO. you have to take the bar already. That is your goal diba.
Take the shortest route to the bar examinations. Take it
Writing is NOT a mere mechanical act but involves the
once. Pass the 1st time you take it. Mao na atong goal
application of the intellect. You cannot write without
Tanan.
applying intelligence. However, if the accused testifies in his
own behalf and denies authorship, he may be compelled to You know what the examiner is looking for?
give a sample of his handwriting.
It’s not your perfect knowledge of the law, because nobody
So drawing of blood, taking of biological samples, paraffin has a monopoly of knowledge. You cannot be expected to
tests and so on are NOT covered by the right against self- know everything there is about the law. You cannot be
incrimination because they are purely physical or expected to have read all the cases ever decided by the SC.
mechanical acts. But what is expected of you is very minimal. Show me, and
im talking about being an examiner, if I were the examiner,
Handwriting, giving a handwriting specimen is violative of
show me that you can argue like a lawyer. and if you do not
this right. It is not a purely mechanical act but involves the
know what law to use, show me that you can bullshit like a
application of the intellect. “When you write, you have to
lawyer. mao lng na. the attitude of a first time practitioner.
use intelligence.”
So when you answer my examinations, argue persuasively.
That is my first tip when you take the Bar Examinations I do not care if your arguments are PL(pataka lng) I don’t
during you time. So when you write, write with intelligence. care. But argue like a lawyer and I will not give you a zero.
Bawal ang magpataka lang og yawyaw.
Mao lng na ang kahinanglan pamugas mo. Ayaw ko tagai
PEOPLE VS. WILLIAM: ug answer na tinamad. Kay ang bar examiner puhon mao
lng man na ang ginapangayo. That you argue like a lawyer.
One of Sir’s favorite cases in the world.
Ang lawyer na tipid kayoo ang storya. Mubo kaayo ang
Would object evidence be inadmissible on the ground that it ingnun, mubo kaayo ang mga pleading. Mao na ang mga
is beyond the commerce of men? What happened here? lawyer na dili ninyo dapat kuhaon.

There’s this guy named Alejandro William na ndakpan na So when you are taking the bar examinations, give the
nay gunit na marijuana. Selling actually marijuana. examiner the attention that he deserves by arguing
persuasively.
Now, during trial and even during appeal, he said that “The
marijuana taken from my person should be excluded ‘Yes, the law provides that A is wrong. Therefore I conclude
because it is beyond the commerce of men.” that A is wrong”

So what a great legal argument ‘di ba? Clearly, ang iyang That is the quickest and surest way to fail my class. Give me
lawyer knows about what constitutes an illicit subject persuasive arguments. I wouldn’t even care if its wrong or
matter under the Law on Sales – beyond the commerce of right, you will still be given points. Just training you for the
men. bar. Dugay ko mu-uli ug notebooks mu-admit ko ana.

37
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

“guilty your honor” your grades will come out probably touched the exhibit would describe how and from whom it
January pa. but I will try my best to give you your grades as was received, where it was and what happened while it was
soon as possible. I am a very busy man. With a wife like that in his possession, the condition it was received and the
you will be very very busy. But why does it take me a long condition it was delivered to the next link of chain.
time to check your papers? Because I will always commit.
When I tell you that you are wrong, I will tell you why you These witnesses would then describe the precautions taken
are wrong exactly so I am also telling you how to make it to ensure that there have been no change in the condition
right. So you will never doubt me for not trying to tell you and no opportunity for someone not in the chain to have
how to pass my class. I will always tell you. I will praise you possession of the same.
if you deserve praise. And I will tell you “dud WTF” if you
don’t. ok? So kabalo na ta karon pa-unsa mag-tubag. Same So why do we need to establish the chain of custody?
goes with my wife, andam na mo sa akong asawa karon.
Ako pud andam na ko(hehe)
1) To guarantee the integrity of the physical evidence;
You know already how to answer. That is the surest way in 2) To prevent the production of evidence which is not
making sure that you pass the bar examinations. Before you authentic.
can take the bar pass my subject first. Those of you who are
regular 3rd year, you will realize you will not stop seeing
me until you graduate. Evidence 1st sem, 2nd sem torts and Take note that when an exhibit is positively identified, the
damages. 1st sem 4th year, civil law review, conflict of laws. chain of custody of physical evidence would already be
2nd sem 4th year civil law review remedial law review. You irrelevant.
wont stop seeing me. Mag-sawa gyud mo sa akong dagway.
Just imagine mag-sawa dyud mo. And I hope when you When dealing with illegal drugs, the ideal way of getting rid
eventually pass the bar examinations pangitaon ko ninyo of them is destroying them. Just imagine in a police station
una tungod magpasalamat. Ang di magpasalamat way they would want to get rid of the marijuana by burning
utang na loob. (hehe) off the record ni ha sa mga nag-record. them, it will be a great party to be at.

Then you have People vs Brecinio march 17,2004 Corruption is worst when drugs fall into the custody of the
police and then they sell it again for its high value.
Mateo was charged for the murder for shooting Gerald.
After trial, Mateo was found guilty as charged.(yey) On FIRST LINK (Sec 21 RA 9165)
appeal, Mateo argued that the trial court should have
acquitted him as the lower court has not proved his guilt (1) The apprehending team having initial custody and
beyond reasonable doubt. control of the drugs shall, immediately after seizure and
What is his argument? confiscation, physically inventory and photograph the same
in the presence of the accused or the person/s from whom
The paraffin test conducted on him two days after he was such items were confiscated and/or seized, or his/her
arrested yielded a negative result. representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected public
So that’s object evidence, the result of a paraffin test saying official who shall be required to sign the copies of the
that based on the test I did not fire a gun. That is what a inventory and be given a copy thereof;
paraffin test is all about. It tests the residual chemicals
found sa imong skin after you fire a weapon. That is a Why is this required?
paraffin test. So according to Mateo he could not have shot 90% of those who were arrested by virtue of a buy-bust
Gerald. operation claim as their defense that the evidence was
1:20:01 – 1:36:00 (Dane Viola) planted. Here it will be clear that it was not planted since
there will be representatives from the media who will attest
According to Matteo, he could not have shot Gerald. Is this to it, there will be kawagad or Brgy. Captain.
interpretation correct?
No, that the paraffin test result is negative does not ipso What happens if there is a lapse in the chain of custody?
facto prove that Matteo is innocent. A negative paraffin test
is not conclusive proof that a person did not fire a gun. In People v Eugenio
other words, it is possible to fire a gun and yet be negative
for nitrates, as when culprits wear gloves, wash their hands The noncompliance by the by bust team is not fatal as long
afterwards, or are bathed in perspiration. Here, since Matteo as there is justifiable ground therefor. And the integrity and
submitted himself for paraffin testing two days after the evidentiary value of the ceased item are properly preserved.
shooting it was likely that he had washed his hands thus Its noncompliance will not render accused’s arrest illegal or
removing all traces of nitrates thereof. So a negative paraffin the items ceased from him inadmissible, what is of upmost
test is not fool proof. importance is the preservation of the integrity and
evidentiary value of the items as the same would be utilized
Finally, object evidence must meet any additional to determine the guilt or innocence of the accused.
requirements set by the law. Example is RA 9165 or the
"Comprehensive Dangerous Drugs Act of 2002". For example there was no photograph, no countersign by
those required, that would not automatically ensure that the
Section 21. Custody and Disposition of Confiscated, Seized, accused will be acquitted or that the evidence will be
and/or Surrendered Dangerous Drugs, Plant Sources of inadmissible.
Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory If there is a lapse in the chain of custody, what it actually
Equipment. affects would be the weight of the probative value, the
believability of the evidence. The weight to be given by the
It would include every testimony from every link and chain court of the said evidence depends on the circumstances in
from the moment the item was picked up to the time that it the case. It is conceivable that the lapses in the chain of
is offered to evidence in such a way that every person who

38
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

custody would lead to an acquittal of the accused if the destroying the prosecution witnesses that account for every
probative value of the items seized by virtue of the buy-bust link of the chain of custody.
operation that fell short of the requirement of Sec 21 would
produce reasonable doubt because of the lapses. But Drug lords go free because of this chain of custody and
generally, if it is just a buy-bust operation and there is a because prosecutors don’t know how to prosecute. And so,
minor lapse justification therefor, you can say that it does as response, Congress came up with an amendment to RA
not affect the admissibility of the evidence. 10643. More or less it is the same, but it has now legislated
what the SC said in the case of.
Now here’s this case:
People vs Eugenio Ruling:

People v Almorfe Non-compliance with these requirements under justifiable


grounds, as long as the integrity and the evidentiary value
Sir: There was no physical inventory, photographs in the of the seized items are properly preserved, by the
presence of the accused, he was later on convicted, the apprehending officer of team, shall not render void or
question was WON the drugs were admissible. The SC here invalid such seizures and custody over said items.
stuck with the general rule:
So, they have to insert this because of the cases thrown out
FT: in the RTC for the simple reason of failure to comply with
Respecting the teams non-compliance with the inventory, the chain of custody.
not to mention the photograph, requirement of R.A. No.
This is a reminder to the judges that non-compliance with
9165, the same does not necessarily render void and invalid
the requirements is not fatal as long as it is satisfactorily
the seizure of the dangerous drugs. There must, however,
explained and shown that the integrity of the items is
be justifiable grounds to warrant exception therefrom, and
preserved.
provided that the integrity and evidentiary value of the
seized items are properly preserved by the apprehending I hope you don’t become lawyers who makes money out of
officer/s. drug pushers. You are contributing to the problem.

For the saving clause to apply, it is important that the (Story about how drugs can damage the country like Cuba.
prosecution should explain the reasons behind the And how many deaths occur in America due to drugs)
procedural lapses and that the integrity and value of the
seized evidence had been preserved. What’s my standard in lawyering? “If I can sleep at night
knowing what I did, I’m okay. If I can’t sleep at night, then
While a perfect chain of custody is almost always I’m not okay.”
impossible to achieve, an unbroken chain becomes REVIEW OF SOME PRINCIPLES/CONCEPTS:
indispensable and essential in the prosecution of drug cases
owing to its susceptibility to alteration, tampering, No object evidence can ever be presented unless identified
contamination and even substitution and exchange. Hence, or authenticated by a competent witness. It must be
every link must be accounted for. sponsored by a witness.

In fine, the prosecution failed to account for every link of the General rule: The actual object evidence must also be
chain starting from its turn over by Janet to the investigator, presented in court.
and from the latter to the chemist.
Exceptions: When presentation of objects may be dispensed
with and be replaced by testimony or documents.
So if there is lapses in the chain of custody, the
apprehending officers must explain it. If you do not offer an 1. If its exhibition is contrary to public morals or
explanation, then you must be hiding something and verily, decency.
that would constitute reasonable doubt.
When you take the BAR exams, you need to make
Presumption of regularity cannot overcome the sure that your documents are in order. The sad
presumption of innocence or the constitutional thing about it is if you’re a guy and your name is
requirement of proof of guilt beyond reasonable doubt the same with a famous personality who is a girl,
leading to the acquittal of the accused. magbuot buot ang Civil Registrar. Imbes na Male
ka, himuon kang Female. It happens a lot.
GEN RULE: A perfect chain of custody is impossible to
achieve and will not affect the arrest and admissibility of I have this client named “Rio”. Rio is a guy. In his
evidence. birth certificate it’s FEMALE. Kay at that time,
sikat si Rio Locsin. A very pretty actress in our
time. So magbuot buot.
1:36:01 – 1:52:00 (Edsam Andit)

If the prosecution fails to explain the reasons behind or the So, what do you need to do? Magfile ug petition
circumstances behind the departure of the usual procedure, for correction of an entry in the Local Civil
if it does not explain every link in the chain of custody, it Registry. Karun, pwede na na siya administrative
might lead to acquittal. ra but before, you really need to file a case in court.
The problem was, nagkaproblema iyahang mga
That’s what we need to remember. documents. You need to secure NBI clearance,
medical certificate that you have been examined
Kuntahay naay accused, a peddler of illegal drugs is caught, and was really found a Male, etc.
and he goes because of reasonable doubt, dili na na muabot
sa Supreme Court. Tama? The moment he’s acquitted wala The problem was gitrippingan ko kay baguhan ko
na na. So, it would never reach the SC. You have no idea na abogado. So, it took a long time na dali ra unta.
how many drugs cases are thrown out before the RTC It came to a point na niingon na akoang client “Pre!
because of Sec. 21. Because lawyers became to adept in Dili ba pwede maghubo nalang ko? Ipakita nalang

39
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

nako na lalaki jud ko?” because it will be easier to


prove that way than to present a medical
examination from a doctor finding him to be  Presentation of the corpse or disembodied body
anatomically male. parts.
But we did not do that because it is contrary to
public morals and decency.  Re-enactment of violent/ offensive acts.
(Halimbawa, Mateo raped Maja. His defense that
2. To require being viewed in court or in ocular he did not rape Maja is because he is incapable of
inspection would result in delays, inconvenience, an having an erection. He maintains that rape for
or unnecessary expenses which is not in proportion him is an impossible crime due to the fact that his
to the evidentiary value of such object. manhood is an ineffectual means to commit the
crime. So can the judge say na ”Show me that it is
3. Such object evidence would be confusing or really ineffectual”? The judge cannot do that. The
misleading as when the purpose is to prove the judge cannot ask Mateo to experiment on himself.
former condition of the object and there is no
preliminary showing that there has been no  Objects which are offensive to man’s sensibilities or
substantial change in the said condition; which is repulsive objects should not be presented anymore.
applicable to ocular inspections; or Waste matters like human excreta, corpses of dead
animals, or killing of an animal to prove that the
4. The testimonial or documentary evidence already substance is poison. You can just have a chemical
presented clearly portrays the object in question as analysis of it. Have a chemist testify for it. No need
to render the view thereof unnecessary. for experimentation.

 While obscene or indecent objects are no longer


needed to be presented in court, there may be
5. Where the existence of the object is not very the
instances where they may be permissible to be
fact in issue but is merely a collateral fact or is
exhibited.
merely used as reference.
 If a view of the object is necessary in the interest of
6. Where the article cannot be recovered or outside
justice, such object may still be exhibited. But the
the coercive jurisdiction of the court.
court may exclude the public from such view. The
view may not be refused if the indecent or immoral
7. In crimes the gist of which is the illegal possession
objects constitute the very basis of the criminal or
of article, a distinction must be made. If the article
civil action (e.g obscene pictures or exhibits).
is common or familiar such that it can be readily
identified by sight, its presentation is not It happened to me. I was a collaborating counsel in a case I
necessary. Its presentation is not necessary as handled in Cebu. The guy was cheating on his wife. Case for
existence may be shown by the testimony of the concubinage was actually filed against him since there was
witnesses. no anti-VAW-C law at that time yet. The ground was there
was sexual intercourse with a woman not his wife under
In illegal possession of firearms however, the accused may
scandalous circumstances.
still be convicted even without the presentation of the gun
in court. (take note of this) The only proof that we presented was the sex-tape in VHS.
So how do you attach that to the complaint? Of course, you
PEOPLE vs. TAGUBA 342 SCRA 199.
need to replay, get screen shots out of it. That is what you
RULING: attach. But that will not really prove whether carnal
knowledge was indeed under scandalous circumstances. So,
In cases involving the illegal possession of firearms, the I was the one who presented the evidence, and the evidence
prosecution has the burden of proving (a) the existence of was the video tape. So, there was a question, “Your Honor,
the subject firearm, and (b) the fact that the accused does not is there a need to present the evidence in court considering
have corresponding permit to possess. that it contains an obscene and indecent show? “But the
court said, IN THE INTEREST OF JUSTICE, WE WILL
As to the first requisite the evidence can be best established WATCH THE VIDEO TAPE. So, all the lawyers, together
by the presentation of the firearm but there is no with the judge, went to his chamber. We watched the
requirement that the actual firearm itself must be presented videotape to determine whether or not it is scandalous.
in court. It is not fatal if the prosecution did not present the We are done with object evidence. Let us know a little bit
firearms itself. about documentary evidence.
Its existence can be established by a testimony. Where the
articles however are not common or not familiar to ordinary
persons, and cannot be identified by sight, they must be 1:52:01 – 1:53:06 (Jennifer Lim)
presented in court.
Note: Chika lang gyud siya actually. Dili na relevant
OTHER LIMITATIONS:
*Kanang inyong generation, puro gyud mo walay buot. Mao gyud
The admission of the object evidence is subject to the nang difference sa inyong generation ug sa amoa. With the
demands of decency and propriety, unless the admission is exception of very few, who still belong to my generation. Be
extremely necessary. careful of what you put out there. Pictures or videos of yourselves
not knowing that you are doing a Katrina Halili. That’s brotherly
Examples: advice. SIR CHECKS THE ATTENDANCE*
 Exhibition of the private parts in sex cases.
Alangan muingun ang judge na i exhibit giunsa
pag commit. JULY 19, 2018

40
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

00:00 -00:44 (Jennifer Lim) entire population, one in a billion lang ang possibility of
misidentification.
We finished object evidence. For tonight, we will discuss
something that I have extensively written, DNA as Evidence Where does this concept come from? The criminal
in the Philippines. First thing we need to know is that DNA is investigation that makes for example biological samples? It
also object evidence as in the case of People vs. Lavapie and comes from this guy Edmund Locard.
People vs. Alulod wherein the Supreme Court said that it is
Edmund Locard (1877-1966)
the evidence of the highest order. Why? Because it speaks
for itself eloquently, more than a hundred witnesses. Such He was a pioneer in forensic science who became known as
that when the object evidence runs counter to the the Sherlock Holmes of France. He formulated the basic
testimonial evidence of the case, it will always be the principle of forensic science: “Every contact leaves a trace.”
physical evidence that will prevail. This became known as the Locard’s exchange principle.

What is DNA? DNA means deoxyribonucleic acid, which is Another author used Locard’s Exchange Principle as:
the chain of molecules found in every nucleated cell of the
"Wherever he steps, whatever he touches, whatever he
body. The totality of an individual’s DNA is unique for the
leaves, even without consciousness, will serve as a silent
individual, except identical twins. DNA evidence
witness against him. Not only his fingerprints or his
constitutes the totality of the DNA profiles, results and other
footprints, but his hair, the fibers from his clothes, the
genetic information directly generated from DNA testing of
glass he breaks, the tool mark he leaves, the paint he
biological samples. 1
scratches, the blood or semen he deposits or collects. All
of these and more, bear mute witness against him. This
What are these biological samples? Biological sample is evidence that does not forget. It is not confused by the
means any organic material taken from the body that could excitement of the moment. It is not absent because
be viable for DNA testing. This could be from your hair, human witnesses are. It is factual evidence. Physical
saliva, or blood. evidence cannot be wrong, it cannot perjure itself, it
cannot be wholly absent. Only human failure to find it,
A few interesting facts before we go to DNA evidence.
study and understand it can diminish its value."
1. Take note that about 97% of our DNA is junk.
So we are talking about here, physical or object evidence.
Walay pulos or components with no known
Let’s now discuss the academic side. What are the purposes
biological functions. That’s the mystery of it.
of DNA Evidence in the law? How can DNA Evidence be
2. Chimpanzees are 96% to 98% similar to humans,
useful?
depending on how it is calculated. (Which explains
why you have schoolmates here in AdDU who 1. Identification (unidentified corpses in airplane
look like monkeys.) crashes or in mass graves, decomposed murder
3. Cats have 90% of homologous genes with humans; victims, for example. You could take DNA samples
Meaning we have 90% analogous genes with cats, and compare it in order to identify)
82% similar with dogs, 80% with cows, 79% with 2. Determination of parentage and pedigree
chimpanzees, 69% with rats and 67% with mice. (paternity and maternity testing)
4. 75% of mouse genes have equivalents in humans, 3. Criminal Investigation (which would the police in
90% of the mouse genome could be lined up with a including or elimination of suspect by the police in
region on the human genome building a case). We are talking here about
5. The fruit fly (Drosophila) shares 60% of its DNA investigation.
with humans. About 60% of the chicken genes
correspond to a similar human gene. So there’s a; It can also be used by the prosecution in which DNA could
little bit of cannibalism there when we eat at KFC. help in convicting perpetrators of crimes as to exonerate
individuals. Making evidence necessary in inculpatory or
I’m saying this because despite the fact of similarity with exculpatory --- Inculpatory meaning included; Exculpatory
human beings in this universe that we inhabit, we are the meaning you will be excluded or exonerated as a suspect.
only being with millions and millions of genes. It is least So building a case would be much easier when you have
likely to confuse DNA of the human beings to that of a cow, zeroed in a suspect
a cat or what have you.
DNA CASES THROUGHOUT HISTORY
The question now is, since you are law students, there is
now the topic on how DNA can aid in criminal A. DNA for Identification: Josef Mengele a.k.a. The
investigation. In determining, for example, the culprit in Angel of Death, a Nazi Officer during WWII.
murder or in any other case where it would be relevant.
How similar is the DNA of one person to the other? The Mengele was so morbid. He was a notorious member of the
genome variation of one human being to another is only team of doctors responsible for the selection of victims to be
0.5%. So, we are all 99.5 % similar regardless of gender or killed in the gas chambers and for performing deadly
age. human experiments on prisoners (mostly the Jews). The
dark history here when Hitler who is probably the most
Given the similarity, how can DNA Evidence be helpful in disturbed that he had divisions working for him precisely to
solving a case, in finding a possible perpetrator? It’s pretty conduct experiments.
darn accurate. The set of chromosomes in a cell makes up its
genome; the human genome has approximately 3 billion His experiments:
base pairs of DNA arranged into 46 chromosomes.
1. Twin boy toddlers were sewn together so Mengele
According to the FBI, the chance of misidentification is one
could investigate how Siamese twins behaved.
in a billion. No two persons have identical DNA except with
2. Twin girls were forced to have sex with a pair of
respect to identical twins. What is the rate of identical
male twins and, if they got pregnant, kill them and
twins? The rate is 1 in 250. But would be difficult as to the
remove the embryos for study.

1
Rules on DNA Evidence, Section 2

41
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

3. In another case, one twin was infected with TB Having no solid lead on the crimes, investigators turned to
then both were killed so Mengele could observe the Sir Alec Jeffreys. Jeffreys is a British geneticist, and the man
different pathology. credited for developing techniques for DNA fingerprinting
and DNA profiling which are now used worldwide in
When Germany fell, Mengele fled and eluded capture for a forensic science to assist police detective work and to
long time. There were many alleged sightings of him up to resolve paternity and immigration disputes.
1985. It was important for nations that Mengele was brought
to justice. Until the 1990’s, this was still an issue as Jeffreys compared semen samples from both murders
something had to be done. This happened in the World War against blood sample from Buckland which conclusively
2 which ended in 1945. proved that both girls were killed by the same man, but not
Buckland. Historically speaking, Buckland became the first
In 1969, a man named Wolfgang Gerhard drowned in Brazil suspect in the world to be exonerated by the use of DNA
and was buried there. Blood specimens from Mengele’s wife evidence.
and son were used to reconstitute Mengele’s DNA pattern.
In 1992, the remains of Gerhard were confirmed to be those The police then undertook an investigation in which 5,000
of Mengele. Thus, ended the painful chapter of human local men were asked to volunteer blood or saliva samples.
history. Swabbing is this big cottonbud used to collect saliva. This
took six months, and no matches were found.
B. For Determination of Parentage and Pedigree:
The Russian Imperial Romanov Family Then, in 1987, the police discovered that one man, Colin
Pitchfork had paid his co-worker to give a DNA sample
They were the last imperial Romanov family. Their king while posing as him. After collecting a DNA sample from
was called Tsar. After the Bolshevik Revolution in Russia, Pitchfork, the authorities were able to make a positive match
deposed Tsar Nicholas II, his wife and five children were with the semen samples. He was the first person to be
executed by the Bolshevik Troops upon orders of Lenin on convicted because of DNA Evidence. He was sentenced to
July 17, 1918. life imprisonment and concurrent terms for rape and
murder.
They were all buried in unmarked graves for fear of
desecration. Why? Kung imo na silang ibutang dira, it What I’m trying to say is as early as 1984, the use of DNA as
would cause revolution. Maybe the supporters would did evidence in cases had been accepted internationally. What
them up or use them as a rallying cry; if you are against the about us in the Philippines?
imperial family, you could dig them up and use them for
parade or something like that. Rumors persisted, however, As early as 1995, there was a mention of DNA evidence in
that the youngest daughter, Anastasia had survived and the case of People vs. Teehankee, Jr.
escaped Russia. Survival of a member of the Royal family
PEOPLE vs. TEEHANKEE, JR. (Oct. 6, 1995)
could have been used as a rallying point by those loyal to
the Royal Family and at the same time anti-Bolshevik
This case if about the murder of a certain Maureen
groups to depose the new communist regime. There’s a Goldman. It became known in the country for the reason
Messianic factor to it.
that Teehankee Jr. was the son of the Chief Justice, Claudio
In 1920, however, a woman named Anna Anderson Teehanke Sr.
surfaced in Germany claiming to be “lost” Romanov heiress,
Anastasia. A lot of people were convinced because of the The appellant was convicted of murder on the testimony of
actual similarities. three eyewitnesses, the Supreme Court stated as an obiter
dictum that “while eyewitness identification is significant, it
In 1991, the bones of the Romanov family were discovered is not as accurate and authoritative as the scientific forms of
and verified through DNA matching with a relative, Prince identification such as the fingerprint or DNA testing”.
Philip, husband of Queen Elizabeth II of Great Britain.
Facts: In 1991, 3 separate criminal cases were filed against
By that time, Ann Anderson was already dead. A sample of accused Claudio Teehankee, Jr. Accused relied on the
Anderson’s tissue, part of her intestine removed during her defense of denial and alibi. Accused claimed that during the
operation in 1979, had been stored at Martha Jefferson shooting incident, he was not anywhere near the scene of
Hospital, Charlottesville, Virginia. Anderson’s the crime, but in his house in Pasig.
mitochondrial DNA was extracted from the sample and Ruling: The accused was convicted on the strength of
compared with that of the Romanovs and their relatives. thetestimonies of 3 eyewitnesses who positively identified
him as the gunman.
It did not match that of the Duke of Edinburgh or that of the
bones, confirming that Anderson was not related to the
Romanovs. In other words, impostor. In a way, the Supreme Court is making a hierarchy. We
C. For DNA Evidence can be used in Criminal may have eyewitness identification but it is not as accurate,
Prosecution: Buckland Case our memories are actually subjective and selective. There’s
a possibility of a flawed identification process. The Supreme
Between 1983 and 1986, two 15-year old girls were Court said naa pa mas reliable ani. It could be DNA
separately raped and murdered. The modus operandi of the evidence or finger printing. But, 2 years later in a paternity
crimes was similar. Semen samples obtained from the dispute in the case of Pe Lim vs CA.
bodies revealed that there was only one assailant. The main
suspect was Richard Buckland , a 17-year-old youth with
learning difficulties, who revealed knowledge of one of the
girls’ body, and admitted the second murder under
questioning. But he denied the first murder.

So the investigators wondered why would he deny the first


and admit to doing the other crime wherein it was already
established through testing that there is only one assailant.

42
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

PE LIM vs. CA (GR No. 112229, Mar. 18, 1997) be acquitted.

DNA, being a relatively new science, it has not as yet been Held: SC said Pregnancy is not an element of rape. The issue
accorded official recognition by our courts. Paternity will still of "DNA tests" as a more accurate and authoritative means
have to be resolved by such conventional evidence as the of identification than eye-witness identification need not be
relevant incriminating acts, verbal and written, by the putative belabored. The accused was properly and duly identified by
father. the prosecutions principal witness.

Facts: In 1978, the petitioner Raymond Lim and respondent


Maribel Cruz fist met in a club. In January 1982, Maribel gave In other words, the SC is echoing Andal being that
birth to their daughter. Towards the latter part of 1983, Maribel pregnancy is not an element of rape, enough na ang eye
noticed that the petitioner’s feeling towards her started to witness identification.
wane. He even insinuated that he was not the father of the
PEOPLE vs. FAUSTINO
child considering the nature of Maribel’s work as an
(September 6, 2000)
entertainer..
Decided a few months after Penaso. This is a case for
Ruling: Article 172 (2) states “An admission of legitimate robbery with homicide. Accused-appellant SPO1 Bernie
filiation in a public document or a private handwritten Jamon Faustino of the crime of robbery with homicide and
instrument and signed by the parents.” He is the father of the sentenced him to suffer the extreme penalty of death.
child since he executed all responsibilities which
undeniably showed concern of a legitimate father such as In an obiter, the SC revisited Teehankee stated that: “An
payment of hospital bill, causing the registration of the child eyewitness identification, which authors not infrequently
using his surname and lastly the lines in his letters which much would describe to be ‘inherently suspect,’ is not as accurate
love and concern to Maribel and their daughter. and authoritative as the scientific forms of identification
evidence like by fingerprint or by DNA testing.”

So unsa man jud, Supreme Court? In Faustino, it said na


SC is saying relatively new evidence na diba 1980’s naa na better ang DNA testing than witness identification. In the
man? Here we go in 1997, delayed by a few years, saying previous case of Penaso, it need not be belaboured. The SC
that it is relatively new. This paternity case held against the is actually flip-flopping here.
putative father. The Supreme Court is hesitant to consider
TIJING vs. CA
DNA testing as in the resolution of the case and the same
(GR No. 125901, March 8, 2001)
hesitancy is in Andal vs. People.

ANDAL vs PEOPLE The Supreme Court, for the first time, opened the possibility
(GR No. 138268, May 26, 1999) of admitting DNA as evidence of parentage. The Court
issued a writ of habeas corpus against respondent who
Facts: There are three gang rapists here. After being abducted petitioner’s youngest son. Testimonial and
convicted of rape and sentenced to the death penalty, the documentary evidence and physical resemblance were used
accused proposed a novel request for DNA testing as a to establish parentage.
means to reverse their conviction. If the testing proved
negative, they propose that they should be acquitted. However, the SC noted: “Parentage will still be resolved
using conventional methods unless we adopt the modern
Held: The issue of DNA as a more accurate and and scientific ways available. Fortunately, we have now the
authoritative means of identification than eye-witness facility and expertise in using DNA test for identification
identification need not be belaboured. The accused were all and parentage testing. The University of the Philippines
properly and duly identified by the prosecutions principal Natural Science Research Institute (UP-NSRI) DNA
witness Olimpio Corales, a brother in law of accused Jurry Analysis Laboratory has now the capability to conduct DNA
and Ricardo Andal. typing using short tandem repeat (STR) analysis. The
DNA testing proposed by petitioners to have an objective analysis is based on the fact that the DNA of a child/person
and scientific basis of identification of semen samples to has two (2) copies, one copy from the mother and the other
compare with those taken from the vagina of the victim are from the father. The DNA from the mother, the alleged
thus unnecessary or are forgotten evidence too late to father and child are analyzed to establish parentage.
consider now.
Of course, being a novel scientific technique, the use of
DNA test as evidence is still open to challenge. Eventually,
Let’s go back to Teehankee, where the SC actually held that as the appropriate case comes, courts should not hesitate to
DNA evidence is superior. Yet, here in Andal the SC is rule on the admissibility of DNA evidence. For it was said,
saying na no need. You were truly identified. In Teehankee that courts should apply the results of science when
diba it said eyewitness identification is flawed. The SC here competently obtained in aid of situations presented, since to
is saying no need for DNA. reject said result is to deny progress. Though it is not
necessary in this case to resort to DNA testing, in future it
PEOPLE vs. PENASO would be useful to all concerned in the prompt resolution of
GR No. 121980, Feb. 23, 2000 parentage and identity issues.”

Facts: In November 1989, Penaso allegedly raped his Facts: Edgardo and Bienvenida Tijing filed a petition for
daughter’s classmate. The victim became pregnant and gave habeas corpus in order to recover their youngest child,
birth on July 16, 1990 or eight months later. Take note, 8 Edgardo Jr., whom they did not see for 4 years.
months. After being convicted and on appeal to the
Supreme Court, Penaso asked for DNA Testing to Ruling: The trial court was correct in its judgment based on
determine if he was really the father of the child he should the evidence established by the parents and by the witness

43
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

who is the brother of the late common-law husband of following data:


Angelita. Furthermore, there are no clinical records, log  How the samples were collected; 

book or discharge from the clinic where John Thomas was
allegedly born were presented. Strong evidence directly  How they were handled; 

proves that Thomas Lopez, Angela's "husband", was not  The possibility of contamination of the samples; 

capable of siring a child. Moreover, his first marriage  The procedure followed in analyzing the samples,
produced no offspring even after almost 15 years of living whether the proper standards and procedures
together with his legal wife. His 14 year affair with Angelita
were
 followed in conducting the tests
also bore no offspring.
 The qualification of the analyst who conducted the
Trial court also observed several times that when the child tests. 

and Bienvenida were both in court, the two had strong
similarities in their faces. Resemblance between a minor and
his alleged parent is competent and material evidence to After this case, the SC has a changing tide. There was a long
establish parentage. Lastly, the spouses presented clinical period of hesitation. The Supreme Court has had a series of
records and testimony of the midwife who attended flip-flopping. In one case, saying eyewitness identification is
Bienvenida's childbirth. enough then in another saying that it is not reliable. The
Supreme Court has now begun to ask for DNA Evidence as
means for prosecution.
So, the SC is warming up to the idea because we have the
UP laboratory that has the ability to perform testing of PEOPLE vs. JANSON
biological samples or DNA testing. The SC has recognized (GR No. 125938, April 4, 2003)
the ability of the Philippines. In 2002, the SC has used DNA
evidence to convict the accused beyond reasonable doubt in Facts: This case involves a complex crime of rape with
the case of Vallejo. homicide. In 1995, RTC of Cotabato ruled that the
appellants were guilty of the crime of robbery with rape,
PEOPLE vs. VALLEJO and sentencing each of them to the penalty of Reclusion
(May 9, 2002) Perpetua, and ordering them to pay P30,000.00
and P10,000.00 in favor of Marites Alcantara and Cesario
Facts: Vallejo was charged with raping and murdering a 9- Alcantara
year-old child. The victim’s DNA samples from the
bloodstained clothes of the accused were admitted in Ruling: The SC acquitted the accused charged with rape for
evidence. Also, the DNA profile from the vaginal swabs lack of evidence because “doubts persisted in our mind as to
taken from the rape victim matched the accused’s DNA who were the real malefactors. Yes, a complex offense had
profile. The high Court affirmed the accused’s conviction of been perpetrated but who were the perpetrators? How we
rape with homicide and sentenced him to death. wish we had DNA or other scientific evidence to still our
doubts!”
Held: DNA is an organic substance found in a person’s cells
which contains his or her genetic code. Except for identical SC: “ After due reflection and deliberation, we still find difficulty
twins, each person’s DNA profile is distinct and unique. in sustaining the trial courts conclusion regarding appellants
guilt because of inconclusive identification. Doubts persist in our
When a crime is committed, material is collected from the mind as to who are the real malefactors. Yes, a complex offense has
scene of the crime or from the victim’s body for the suspects been perpetrated, but who are the perpetrators? How we wish we
DNA. This is the evidence sample. The evidence sample is had DNA or other scientific evidence to still our doubts! But we
then matched with the reference sample taken from the have only uncertain testimonies to rely on. It is only when the
suspect and the victim. conscience is satisfied that the persons on trial are the ones who
committed the offense that the judgment should be for
The purpose of DNA testing is to ascertain whether an conviction. Only when there is proof beyond reasonable doubt can
association exists between the evidence sample and the we be certain that, after trial, only those responsible should be
reference sample. The samples collected are subjected to made answerable. The evidence for the prosecution must stand or
various chemical processes to establish their profile. fall on its own merit and cannot be allowed to draw strength from
the weakness of the evidence for the defense.
The DNA test may yield THREE possible results:
1. EXCLUSION. The samples are different and
TECSON vs COMELEC
therefore must have originated from different (March 3, 2004)
sources. This conclusion is absolute and requires This was the case that determined the eligibility of FPJ to
no further analysis or discussion; run as president of the Philippines. There was an issue of
2. INCONCLUSIVE. It is not possible to be sure, filiation. All that FPJ had to prove was that either iyahang
based on the results of the test, whether the mama or papa kay natural born nga Pilipino.
samples have similar DNA types. This might occur
for a variety of reasons including degradation, SC said, “In case proof of filiation or paternity would be
contamination, or failure of some aspect of the unlikely to satisfactorily establish or would be difficult to
protocol. Various parts of the analysis might then obtain, DNA testing, which examines genetic codes
be repeated with the same or a different sample, to obtained from body cells of the illegitimate child and any
obtain a more conclusive result; or physical residue of the long dead parent could be resorted
3. INCLUSION. The samples are similar, and could to. A positive match would clear up filiation or paternity. In
have originated from the same source. In such a Tijing vs. Court of Appeals, this Court has acknowledged
case, the samples are found to be similar, the the strong weight of DNA testing.”
analyst proceeds to determine the statistical
significance of the similarity.
PEOPLE vs. MOJELLO
In assessing the probative value of DNA evidence, (GR No. 145566, Mar. 9, 2004)
therefore, courts should consider, among others things, the

44
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

44:01 – 1:00 (Gillian Grancho)


The cause of death as cardio-respiratory arrest due to
asphyxiation and physical injuries; she was strangled to (On PEOPLE V YATAR )
death and left on the seashore as manifested by the frothing 1st argument: Yatar contends that the blood sample taken from
in her lungs. No physical, scientific or DNA evidence was him as well as the DNA tests were conducted in violation of his
presented to pinpoint appellant as the person who killed the right to remain silent as well as his right against self-
victim. Thus, appellant cannot be convicted of rape with incrimination
homicide considering the insufficiency of evidence which
thereby created a reasonable doubt as to his guilt for the We know already that the SC here ruled that:
said special complex crime.
“The kernel of the right is not against all compulsion, but
Appellant should instead be held liable only for the crime of against testimonial compulsion. The right against self-
statutory rape, the victim Lenlen Rayco then eleven years incrimination is simply against the legal process of
old. extracting from the lips of the accused an admission of guilt.
It does not apply where the evidence sought to be
excluded is not an incrimination but as part of object
Walay DNA then eh, so we cannot convict him for the evidence.”
complex crime. Of course, we have the case of People vs.
Yatar. We ruled in PEOPLE V RONDERO that although accused-
appellant insisted that hair samples were forcibly taken
People vs. Yatar from him and submitted to the National Bureau of
Investigation for forensic examination, the hair samples may
Facts: Yatar was accused of committing rape with homicide be admitted in evidence against him, for what is proscribed
against victim Kathylyn. DNA testing of the sperm is the use of testimonial compulsion or any evidence
specimen from the vagina of the victim was of identical communicative in nature acquired from the accused under
semen. Yatar questions the giving of much weight to the duress.
evidence presented by the prosecution notwithstanding
their doubtfulness. Hence, a person may be compelled to submit to
fingerprinting, photographing, paraffin, blood and DNA,
KEY POINTS IN EVIDENCE: as there is no testimonial compulsion involved
 Evidence is relevant when it relates directly to a fact in What are we talking about here?
issue as to induce belief in its existence or non-existence.
 Pertinent evidence based on scientifically valid principles  Purely physical or mechanical acts
could be used as long as it was relevant and reliable.
Like obtaining pubic hair, there’s no compulsion here
 Evidence is relevant when it relates directly to a fact in
issue as to induce belief in its existence or non-existence involved. The hair does not testify, unless sponsored by a
person, dili lang gihapon. It has to be analyzed pa, you’re
not forced to make confession of guilt.
Yatar was convicted of the crime of rape and homicide.
DNA from the vagina had sperm specimen, was a positive 2nd argument: Yatar further argues that the DNA tests conducted
match to that of the appellant. We have discussed Yatar in by the prosecution against him are unconstitutional on the ground
object evidence and said that object evidence is not free that resort thereto is tantamount to the application of an ex-post
from any type of compulsion, but only against testimonial facto law.
compulsion. The process of extracting from the lips of the
accused-- his guilt. But, it does not apply to mechanical acts. That’s novel, if you really thought about it. But the SC said
that argument is specious. No ex-post facto law is involved
Yatar also tells us about international precedence, the in the case at bar. The science of DNA typing involves the
admission of scientific techniques in resolving a case. For admissibility, relevance and reliability of the evidence
example, in Daubert. obtained under the Rules of Court. Whereas an ex-post facto
law refers primarily to a question of law, DNA profiling
In Daubert v. Merrell Dow, it was ruled that pertinent requires a factual determination of the probative weight of
evidence based on scientifically valid principles could be the evidence presented. Dili lang gihapon sya ex-post facto
used as long as it was relevant and reliable. Judges, law.
under Daubert, were allowed greater discretion over which Take note:
testimony they would allow at trial, including the
introduction of new kinds of scientific techniques. DNA 1. DNA Testing in court cases involves a scientific
typing is one such novel procedure. procedure. The testimony tending to interpret the
results of such scientific procedure would necessarily
Under Philippine law, evidence is relevant when it relates be rendered by experts.
directly to a fact in issue as to induce belief in its existence
or non-existence. Applying the Daubert test to the case at Remember ha, this is a scientific technique that the
bar, the DNA evidence obtained through PCR testing and courts do not have competence on. Do you expect the
utilizing STR analysis, and which was appreciated by the courts to just understand it without the aid of expert
court a quo is relevant and reliable since it is reasonably testimony?
based on scientifically valid principles of human genetics
You will know later on, under Rule 130, that the expert
and molecular biology.
testimony is an exception of the opinion rule. You
already know that our courts and tribunals are courts of
Pay particular attention in the case of Yatar of the defenses law and not of science or medicine. So walay alam
raised, it has also cited the right against self-incrimination atong korte ana.
and the right to remain silent under Article 3 of the
2. In American jurisprudence, there are tests to determine
Constitution.
admissibility of scientific/expert evidence.

45
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

I want you to remember these tests:


That it is addictive and can cause a variety of diseases? How
 The Frye Test (Frye vs. United States, 293 F. 1013, could you prove that in court?
1014 [D. C. Cir. 1923])
Is there a study by experts whether nationally or
 The Daubert Test (Daubert vs. Merrell Dow internationally which categorically tell you beyond a
Pharmaceuticals, 509 U.S. 579 S.Ct. 2786 [1993]) shadow of a doubt that smoking is addictive and can cause
and later on expanded in Kumho Tire vs. a variety of diseases and eventually death?
Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999)
Tobacco companies will have the resources to hire contrary
experts to tell you that it’s not the smoking which caused
Ngano gina pa assign sa inyo? It’s because the courts death but something else. So nothing is definitive. It’s an
have already cited these cases. Kailangan nato na sya open secret but nobody will officially that in open court.
tun an Nobody will also admit that smoking kills and say that for
the record. The cases involving expert testimonies will not
prosper because tobacco companies will just settle and keep
FRYE TEST the records closed.

Scientific evidence is admissible if it was based on a That’s where the Daubert test should have come in . Trial
scientific technique generally accepted as reliable in the judges should be gatekeepers.
scientific community. Expert testimony was admitted
simply by virtue of the expert’s credentials, experience, skill Confronted with the scientific duel, it is the duty of the
and reputation. Any deficiencies or flaws in the expert’s judges to ensure that such scientific evidence is not only
conclusions would be exposed through cross-examination. relevant but reliable.

Applying this rule, Frye court refused to admit testimony


based on an early lie detector (polygraph) test reasoning Four Daubert Factors:
that lie detector testing had not gained general scientific  whether a theory or technique can, or has been,
acceptance or recognition at that time and even until now. tested;
The results of lie detector test are not given admissibility
 whether it has been subjected to peer review and
because of our general mistrust, they are saying that there
publication;
are ways to beat a lie detector test.
 in respect to a particular technique, the known or
potential rate of error and the existence or
I know something better than a lie detector test – a woman’s
maintenance of standards controlling the
intuition. I don’t know why, when I lie to my wife, she will
technique’s operation; and
know. Mayo na lang I don’t lie.
 whether the theory or technique enjoys general
acceptance within a relevant scientific community.
The standard therefore in Frye is simply general
acceptance.
Remember that in the case of Frye, the SC’s standard there is
 If a procedure is generally accepted, then we don’t have simply general acceptance, but in the case of Daubert, ang
a problem anymore. The court will accept that, it will iyang standard na is based on relevancy and reliability. In a
receive expert testimony and accord it proper probative way, the Daubert test factors in the Frye test and is more
value or weight. comprehensive between the two tests

 If a procedure is not generally accepted, evidence Kumho expanded the application of the Daubert test not
obtained using this procedure would be inadmissible. only to cover scientific knowledge but also technological or
technical knowledge.
In a way, this is echoed in: PE LIM vs. CA (GR No. 112229,
Take note:
Mar. 18, 1997)
By being foreign precedence, neither the Frye standard nor
DNA, being a relatively new science, it has not as yet been the Daubert-Kumho standard is controlling in the
accorded official recognition by our courts. Paternity will Philippines. At best, American jurisprudence merely has a
still have to be resolved by such conventional evidence as persuasive effect on our decisions. Here [in the Philippines],
the relevant incriminating acts, verbal and written, by the evidence is admissible when it is relevant to the fact in issue
putative father. and is not otherwise excluded by the law or the Rules of
court.

DAUBERT TEST But, even if neither is controlling on Phlilppine law, it bears


to mention that Yatar seems to approve Daubert. Diba gina
The US Supreme Court expanded the “general acceptance mentiones niya ang factors ni Daubert.
test” and said that trial judges have the role of
“gatekeeper” to ensure “that any and all scientific Take note however, that Daubert was applied
testimony or evidence admitted is not only relevant, but
- to determine the weight, meaning probative value,
reliable.”
katooha ba, believability of evidence
- not the admissibility
The Court stated that the trial judge should determine
whether the reasoning and methodology is “scientifically Let’s go to another case,
valid” and whether “that reasoning properly can be applied
to the facts in issue.” CABATANIA vs. CA (GR No. 124814, Oct. 21, 2004)

Who among you here will agree that smoking kills? Florencia Regodos was employed as the househelp of
Camelo Cabatania. It was while working there as a maid

46
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

that, on January 2, 1982, Camelo brought her to Bacolod Now, De Villa sought the conduct of a blood type test and
City where they checked in at the Visayan Motel and had DNA test in order to determine the paternity of the child
sexual intercourse. (Gi trip pa jud niya, ka sweet) allegedly conceived as a result of rape. Denied by the
Supreme Court, DNA had the DNA test conducted
Camelo promised to support her if she got pregnant. independently. Okay?! The result? He is not the father of
Florencia claimed she discovered she was carrying Camelo’s Aileen’s child. Okay? Now, De Villa filed a petition for
child 27 days after their sexual encounter. The child was habeas corpus and asked for a new trial on the ground of
born in September 1982 or eight months later. (it’s already newly discovered evidence. He’s not asking for a reversal of
the second case, basi nay pattern) conviction. He’s only saying that given this information that
I am not the father of Aileen’s child, I ought to be served at
Florencia, on behalf of her son, filed petition for recognition
least a new trial. Receive that evidence so I can prove my
and support. The trial court ruled that: “In view of the
innocence. Okay? It makes sense right? Here the Supreme
evidence presented by the plaintiff, the Court finds the
Court said the petition involves the remedy of habeas
evidence of the plaintiff to be meritorious; defendant
corpus to seek a re-examination of the records without
admitted having a sexual intercourse with the plaintiff’s
asserting any legal grounds therefore. So, the Supreme
mother, Florencia Regodos, but denied paternity to the
Court now is trying to be technical about it. Ginaingon sa
child. The child was presented before the Court, and if the
Supreme Court, kung mu-file ka ug habeas corpus to secure
Court is to decide this case, based on the personal
your provisional liberty in the meantime tapos magtrial ta,
appearance of the child, then there can never be a doubt
what’s your ground? What specific ground did you allege?
that the plaintiff-minor is the child of the defendant.”
The Supreme Court is being technical. For all intents and
Sir: Chinese people for example, all look the same. Diba? purposes, petitioner seeks a re-evaluation of the evidentiary
Mag paryente mana sila. How is it that rely on mere basis for his conviction. They are being asked to re-examine
physical resemblance? To my mind, that’s really the weight and sufficiency of the evidence in this case not on
problematic. Can you confuse one Indian from another? its own but in the light of new DNA evidence that the
You can. petitioner seeks to present in this Court. This relief it outside
the scope of habeas corpus petition which applies only in
Held: In this age of genetic profiling and deoxyribonucleic case of denial of constitutional right. The petition for habeas
acid (DNA) analysis, the extremely subjective test of corpus must therefore fail.
physical resemblance or similarity of features will not
suffice as evidence to prove paternity and filiation before Technical but kita na nagtanaw, si Devilla is not the father of
the courts of law. the child. Now, remember one case we’ve discussed earlier
where the SC said that pregnancy is not an element of rape.
Private respondent’s petition for recognition and support is True, it’s the mere touching of the female lavia would be
dismissed. enough to consummate rape. Isn’t it a fact that the
complaint here, they alleged directly pregnancy as a result
In this case, the SC placed a premium on using more
of rape and therefore kung ang contention sa prosecutor kay
accurate methods of determining paternity and filiation
if not for the rape, Aileen would not have gotten pregnant.
other than physical resemblance.
That contention necessarily fails when he is able to prove
IN RE: DE VILLA (GR No. 158802, Nov. 17, 2004) that he is not the father.

The Supreme Court convicted De Villa by final judgment of How did the SC defeat his claim? By saying that mali ang
raping his niece Aileen. The judgment made reference to the habeas corpus na remedy. It was improper remedy. That’s
fact that it was the act of rape that got the niece pregnant your SC students.
and for here to consequently bear a child.
The issue of paternity is not central to the issue of …. The
So, the information, the criminal complaint here stated very rape of the victim is an entirely different question, separate
well that “ tungod kay gi rape ni De Villa iyang and distinct from the question of a father of a child. The fact
pagumangkon na si Aileen, nabuntis siya. Kung wala sya gi of the victim’s pregnancy and the resulting child birth are
rape, dili na mabuntis” irrelevant in determining whether or not she’s raped.
Pregnancy is not an essential element of the crime of rape.
Therefore, the DNA evidence has failed to conclusive prove
to this Court that Devilla should be discharged although
1:00:00 – 1:16:00 (Kemarie Manligoy)
petitioner claims that the conviction was based solely on the
Tungod kay gi-rape ni De Villa ang iyang pag-umangkon na finding of the paternity of the child. This is not the case. Our
si Aileen, nabuntis siya. Kung wala siya gi-rape, dili siya conviction is based on clear and convincing testimonial
mabuntis. So, if you ask me, that is a matter that the evidence of the victim which was given credence by the trial
prosecution should prove. It is in a way an element of the court was affirmed.
accusation. He was saying rape; got pregrant. Were it not
We will revisit this case of Devilla later on. There’s more to
for the fact that she was raped, she would not have gotten
this case than meets the eye.
pregnant. That’s the reason right? Now, since it was never
alleged that Aileen gave birth to a full term nine month old Now, Herrera vs Alba, June 15, 2005. Now, petitioner here
baby, the Supreme Court gave credence to the prosecution’s raises the issue of whether a DNA test is a valid probative
contention that she prematurely gave birth again to an 8 old tool in this jurisdiction to determine the …. Petitioner asks
month baby by normal delivery. for conditions at which DNA technology can be taken in our
judicial system and the prerequisites for the admissibility of
DNA evidence in paternity suits. Petitioner further submits
You know, I tend to get paranoid when I see patterns. How that the appellant court may abuse its discretion by
many cases now where the alleged carnal knowledge or authorizing the trial court to embark on a new procedure to
rape produce an offspring after only 8 months? There is a determine filiation despite the absence of legislation to
pattern emerging and it’s not too farfetched to think that ensure its reliability and integrity. One of the official
that could be the case. recognition as made clear in Delima vs CA, in the presence
of the legal and technical constraints in the implementation.
Petitioner maintains that the proposed DNA paternity

47
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

testing violates his right against self-incrimination. Now to drug typing, fingerprinting, paraffin testing to determine
my mind, if you look at the last argument of the petitioner guilt or innocence without violating Section 17 Article 3 of
Herrera here, he’s saying that it would violate his right the 1987 Constitution or the right against self-incrimination.
against self-incrimination. But you need to remember that Why? These are purely physical or mechanical acts.
this is not a criminal case. In that alone, pataka lang. This is
not a criminal case so why are you talking about
incrimination here?! But again, he raises the same
Now, let’s relate that to the case of Herrera vs Alba. How
arguments as raised before in People vs Yatar and the SC
does that apply or what is the moral lesson that we could
said that despite our relatively liberal rules on admissibility,
learn? That in criminal cases, there can be compulsory DNA
the Trial court should be cautious in giving credence to
testing. That’s precisely what the SC said. Pwede ka pugson
DNA analysis as evidence. We reiterate our statement in the
na muhatag ug biological sample because anyway, it does
… vs Vallejo that in assessing probative value of DNA
not violate any constitutional right and now, by necessary
evidence, court should consider how the samples were
implication, the case of Herrera vs Alba would also
collected, how they were handled, the possibility of
therefore be the sufficient basis to compel DNA testing or
contaminating, the procedure followed in analyzing the
the giving of biological samples in paternity cases. So kung
samples, whether proper standards and procedures were
pwede kang i-compel in criminal cases, that’s People vs
followed in conducting the tests and the qualification of the
Yatar. Kung pwede ka i-compel in paternity suits, that’s
analyst who conducted the test. It is not enough that the
Herrera vs Alba. You can’t refuse anymore. You can be
child’s DNA profile matches that of the putative father. A
compelled.
complete match between the DNA profile of the child and
the profile of the putative father does not necessarily
establish paternity. For this reason, trial court should
require at least 99.9% as the minimum value of the 1:16:01-1:28:18 (Lara Delos Santos)
probability of paternity prior to the paternity inclusion.
By necessary implication, the case of Herrerra vs Alba, shall
Remember that if you look at the person to your left and if be the sufficient basis to compel DNA testing or the giving
you look at the person at your right, you are 99.5% the of biological samples in paternity cases.
same. And so the SC is saying that if you are going to rule
that a person is the child’s father, the probability of So kung pwede ka icompare in criminal cases, that’s People
parentage should at least be 99.9%. Okay? Anything less vs. Yatar. Kung pwede ka icompel in paternity suits, that’s
than that should result in an exclusion or at least an Herrera vs. Alba.
inconclusive result. W is a numerical estimate for the
likelihood of paternity of a putative father compared to the Now, Agustin vs. Court of Appeals (July 2005):
probability of a random match to unrelated individuals. An
appropriate reference population database such as the The petitioner in this case would not submit to DNA testing
Philippine population database is required to compute for to determine paternity on the ground that to undertake it
W. Due to the probabilistic nature of paternity inclusions, W against his will would violate his right to privacy and right
will never be 100%. However, the W estimates is higher against self-incrimination. In the same manner as it was
when the putative father or mother of the child are held to be in Herrera vs. Alba. And here the SC said, now
subjected to DNA analysis compared to those conducted of confirming what is said in Herrera vs. Alba, that
the putative father and the child. DNA analysis that compulsory DNA testing is allowed in a paternity suit. The
excludes the putative father from paternity should be Sc said:
conclusive proof of non-paternity. If the the value of W is
less than 99.9%, the results of DNA analysis should be Petitioner’s invocation of his right to privacy fails to persuade us.
considered as corroborative evidence only. Diba we In Ople v. Torres, where we struck down the proposed national
explained this? computerized identification system embodied in Administrative
Order No. 308, we said:
What’s the difference between corroborative evidence and
cumulative evidence? Corroborative lang siya. If the value In no uncertain terms, we also underscore that the right to privacy
of W is 99.9% or higher then there is refutable presumption does not bar all incursions into individual privacy. The right is
of paternity. So, it’s disputable. It can still be refuted or not intended to stifle scientific and technological advancements
rebutted by contrary proof. This refutable presumption that enhance public service and the common good... Intrusions
should be subjected to the Vallerosa case, the one that we’ve into the right must be accompanied by proper safeguards that
discussed. enhance public service and the common good.

Now, this to my mind a very important case, Herrera vs Historically, it has mostly been in the areas of legality of searches
Alba because this W and the values assigned by the SC and seizures, and the infringement of privacy of communication
ultimately found their way into the rules on evidence. As in where the constitutional right to privacy has been critically at
the same, 99.9% or higher. It’s like the SC copied verbatim issue.
from the case of Herrera vs Alba.
Petitioner’s case involves neither. His hollow invocation of his
And? What about self-incrimination? Section 17 Article III of
constitutional rights elicits no sympathy here for the simple reason
the 1987 constitution provides that no person shall be
that they are not in any way being violated. If, in a criminal case,
compelled to be a witness against himself. Petitioner asserts an accused whose very life is at stake can be compelled to submit
that obtaining samples for DNA testing violates his right to DNA testing, we see no reason why, in this civil case, petitioner
against self-incrimination. Petitioner ignores earlier herein who does not face such dire consequences cannot be ordered
pronouncements that the privilege is applicable only to to do the same.
testimonial evidence.
Three cases: People vs. Yatar, Herrera vs. Alba, and now the
Now, let’s try to summarize so far the two cases that to my
case of Agustin vs. CA.
mind are important for now. Both of them referring to right
against self-incrimination. The first case is People vs Yatar
where the Supreme Court here said that an accused in a
criminal case may be compelled to undergo drug testing,

48
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

What’s the end result? What is the postulate that we need to case there is this justification but in other cases, I don’t
remember? DNA testing can be compelled whether in know.
criminal cases or paternity suits. Now we have the case of People vs Rayles (July 2007):
Accused-appellant would have this Court credit him for having
Now, People vs. Macapal (July 2005): insisted that a DNA test be conducted on AAs daughter. He
claims that had he raped the victim and fathered her child, he
The Accused was prosecuted for allegedly raping a 23-year- would not have the nerve to challenge the result of a DNA test, as
old mental retardate. She got pregnant and bore a child. such procedure would definitely reveal whether he is the father or
Macapal was convicted by the trial court. On appeal, not.
Macapal argued that he was deprived of his right to fully
defend himself in light of the trial court's denial of his Pregnancy and the subsequent birth of her child are not elements
'MOTION FOR DNA TEST’ wherein he raised, as main of the crime of rape. Moreover, non-paternity of the appellant, if
issue, whether he fathered the victim's child. Once again, that be the case, will not necessarily negate the crime of rape as
Macapal supposes that, if he is not the father of the child, he positively proved and established by AAs credible testimony.
is not guilty of the rape which led to the victim’s pregnancy There may or may not be conception after the commission of the
and subsequent childbirth. The Supreme Court took the crime of rape because the offense may be consummated even
without full penetration or even complete ejaculation on the part
same stance it had in Penaso and De Villa and ruled that:
of the assailant. We have time and again stressed that among the
most important consideration in a rape case is the credible
The identity of the father of a rape victim's child is non-issue in a
testimony of the victim. We have repeatedly held that when a
charge for rape, the impregnation of the victim not being an
woman says she had been raped, her declaration alone is all that is
element of the offense.
necessary to show that she had indeed been raped and her sole
testimony is sufficient if it satisfies the exacting standard of
More importantly, it should be pointed out that these consolidated
credibility needed to convict the accused.
cases are criminal cases for rape, not civil actions for paternity or
filiation. The identity of the father of the victim's child is a non-
The accused here is actually bluffing the court. “I’m not
issue. Even her pregnancy is beside the point. What matters is the
occurrence of the sexual assault committed by appellant on the afraid of DNA testing. Sige, magpa DNA ako. Pag positive
person of the victim on four separate occasions. di man nako ideny ba. Pag negative, eh di wala koy sala.”
Appellant's act of committing, along with his parents, in the The SC is adamant in saying that “pregnancy is not an
Agreement forged with the victim while the case was on element of rape.”
preliminary investigation before the Prosecutor's Office 'to
shoulder one-half (1/2) of the expenses to be incurred by [the
JULY 25, 2018
victim] . . . in connection with the delivery of her child is the coup
de grace that dissipates any nagging doubts on his guilt.
00:00:01-00:10:00 (Lara Delos Santos)
So sa ibang kaso, fathers are scared of DNA testing. But
The first thing I’d like to discuss with you tonight is
here, Macapal is asking for it but was denied by the trial
something that you might relate to. It’s….
court. What’s the effect?
The identity of the father of a rape victim's child is non-issue in a
charge for rape, the impregnation of the victim not being an IN RE: Petition to take the 1999 Bar Exams
element of the offense.
A bar candidate by the name of Julius Cesar passed the
Pila na ni na kaso? Kadaghan na wherein the SC is saying 1999 Bar Examinations but was not allowed to take the
that in rape cases, pregnancy is not an element of the lawyer’s oath. A Letter-Complaint was filed before the
offense. Wala siya’y apil. It’s simply carnal knowledge. Office of the Bar Confidant by a certain Tuesday Castro
charging him with Immorality and Grave Misconduct.
But in my mind man gud, it’s very simple. Somebody raped Castro alleged that she and petitioner were former lovers
someone. There is a biological sample. He left semen in the that she bore him a son named Michael Angelo Castro on
vagina of the victim. Don’t you think it’s more towards May 5, 1999. The issue brought before the Supreme Court
determining the guilt of the accused beyond reasonable was whether Cesar possesses the good moral character
doubt if the accused is given the ability to eliminate himself required to be admitted to the Philippine Bar.
as the source of the biological sample left in the body of the
victim. To my mind, is that not enough reasonable doubt? Complainant presented evidence tending to show that
Specially so if the prosecution alleges that it is the very rape petitioner does not possess such character since he refused
that caused the victim to be pregnant. to give financial support to a child he has legally
acknowledged to be his own.
O let’s say wala nabuntis. He just left the semen inside.
During trial, doesn’t he have the right to have himself tested As expected, Cesar claimed otherwise. Aside from the
to determine if iyaha ba jud tong semilia. Why are courts allegation that he was merely forced into acknowledging
reluctant? And why would the courts be relying on eye paternity of Michael, he wanted to remove first his
witness identification rather than scientific evidence? reasonable doubts regarding the child’s paternity through
DNA Testing. Cesar promised to abide with the result of
The truth of the matter is I cannot relate. I don’t handle rape the DNA test and to give financial support as religiously as
cases. But the student of the law in me would always before, even more, if Michael was proved to be his son.
question. Why is the SC reluctant and rash in ruling that Strangely, however, Tuesday refused to undergo DNA
pregnancy is not an element of the offense. When in fact, a testing.
negative DNA result would be enough reasonable doubt to
the guilt of the accused. Hence, the Supreme Court ruled:

But in this case there was also an agreement where the We take judicial notice of the fact that DNA typing is fast
accused agreed to shoulder ½ of the expenses to be incurred becoming an important procedure not only in the field of medical
science but in criminal law and paternity disputes as well.
by the victim in connection with the delivery of the child.
And that is an implied admission of guilt. At least in this

49
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Considering the foregoing and the fact that petitioner promised to What about adultery? Remember adultery is committed by
abide by the result of the DNA test as well as to shoulder the any married woman who shall have sexual intercourse with
expenses therefor, we find petitioner's proposal for a DNA a man not her husband and by the man who has carnal
testing to be quite reasonable and complainant's aversion to the knowledge of her knowing her to be married, even if the
test surprising. If her claim that petitioner fathered her child is marriage be subsequently declared void.
really true, she has no reason to fear the result of the test for it
would be another evidence in her favor. Moreover this case Suppose that, the offended husband may allege that his
should be decided on a strong foundation of truth and justice unfaithful wife became pregnant by another man. DNA
rather than on blind adherence to prima facie rules. evidence can be used to establish that the child is not the
husband’s and therefore, that his wife had sexual
Finding the proposal of petitioner for DNA testing at his expense intercourse with another man.
to be fair and reasonable, unless the test is conducted and the
results thereof submitted to this Court within forty-five (45) days Dili man pwede immaculate conception. There has to be
from notice hereof, the Court will be constrained to grant the some doing with another man. It brings to mind the old
petition of JULIUS R. CESAR to be allowed to take his oath as a
case of VILLAFLOR versus SUMMERS.
lawyer and to be admitted to the Philippine Bar.
Villaflor vs. Summers
So baliktad ta karon because the usual situation is it’s the
father who is reluctant from taking the DNA testing because Villaflor was charged with the crime of adultery. The trial
it might be confirmatory of something. So here. Siya pa jud court judge ordered her to subject herself to a physical
ang naga insist. Ang babae ang dili ganahan. examination to see whether or not she was pregnant and
thus determine the crime of adultery being charged to her.
So what the SC is saying is that naay mga in-ani na kaso na
pwede nato gamitan ng DNA and actually we take judicial She refused such physical examination, interposing the
notice of the fact that this is a useful tool and is something argument that such examination was a violation of her
that can be used to solve this kinds of disputes. right against self-incrimination. She was found in contempt
of court and was ordered to be committed to Bilibid Prison
Kay tinuod man gyud if she claims na atty cesar here is the until she should permit the medical examination required
father , dili sya mahadlok na adunay mga variants. Para sa by the court. In ruling against her contention, the Supreme
kanya wala mahitabo na variants kay iyaha man jud na Court declared that:
anak.
The constitutional guaranty, that no person shall be compelled in
There was np DNA testing that happened in this case. But, any criminal case to be a witness against himself, is limited to a
it’s enough for the SC to say na dili siya reluctant eh. He prohibition against compulsory testimonial self-incrimination.
was confident about it and you know all that is well, ends An ocular inspection of the body of the accused is permissible.
well. He eventually became a lawyer.
Let us suppose that the husband was unable to copulate
So what was the key moment for him? He was so confident with the wife, cannot have sex. Maybe he is impotent, basta
to have the DNA test but the mother didn’t want to. there’s physical impossibility for the husband to copulate
with the wife. And then the wife gets pregnant. Or it is
So after 12 years of cases involving DNA evidence, the possible that the husband was elsewhere—Alibi. Like sea
Supreme Court finally came up with the rule on dna man noh. It’s just so ironic that the sea man cannot be the
evidence and promulgated A.M. No. 06-11-5-SC (2 October source of the semen. (haha)
2007), or the RULE ON DNA EVIDENCE, which took effect
on October 15, 2007. So here petitioner refused such physical examination,
interposing the argument that such examination was a
Let’s now go to the provisions… violation of her right against self-incrimination. And of
course the SC said it is not part of the prohibition. It is only
Section 1 provides that the rule “shall apply whenever DNA limited to prohibition against compulsory testimonial self-
evidence, as defined in Section 3 hereof, is offered, used, or incrimination.
proposed to be offered or used as evidence in all criminal and civil
actions as well as special proceedings.” Again it is limited to mechanical acts. And we can apply
that now to DNA testing. Assuming, that a case with a
In Criminal Actions
similar factual milieu as that of Villaflor vs. Summers would
come about, it will not only be ocular inspection of the body
DNA evidence can be used in criminal actions involving
that would determine pregnancy. You could also determine
unlawful killings such as parricide, murder, homicide, and
if the child was born out of this ilicit relationship with
infanticide.
another man. So how useful DNA is in this date of age.
So if you are charged with murder for example and then
And we remember in the case of Agustin, DNA testing and
you are accused of killing your child or your parent, so that
its results and our ruling in Yatar are now similarly
would be parricide or infanticide. So you can deny “di mana
acceptable.
nako paryente. Di mana nako papa.” So it can’t be parricide.
So we go back to our previous discussion, when we talk
DNA evidence can perhaps be useful to establish
about criminal actions, DNA testing can be compelled. It’s
relationship, being either an element of the offense or a
as simple as that. Why? Because it’s a purely physical and
mitigating circumstance.
mechanical act. And if you remember the case of Herrera vs.
Alba, the Supreme Court held that if you can compel in a
Also, as we have already observed, many of the cases
criminal case to give a DNA sample or a blood sample to
decided by the Supreme Court that refer to DNA evidence
undergo paraffin testing, etc., with all the more reason that
had been in rape cases as well, and kidnapping, and several
he can be compelled in a civil case where your liberty is not
cases as well.
actually in jeopardy.

50
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

characterize what DNA evidence is all about. We know it to


10:01 to 20:00 (Kemarie L. Manligoy) be an object or physical evidence and based on the case of
People vs Larapie, it’s evidence of the highest order. It
If you remember the case of Herrera vs Alba, the SC also speaks more eloquently than a hundred witnesses according
said that if you can be compelled in a criminal case to give a to the Supreme Court. Object or physical evidence like hair,
DNA sample, or a blood sample, to undergo paraffin test saliva, bone and etc. A biological sample is an object
and so on, all the more reason that you can be compelled in evidence itself but remember that while it is object or
a civil case where your liberty is not actually in jeopardy. So, physical evidence, it is one that can only be appreciated
pwede siya na ma-compel. Now, just a little bit of cross- through the aid of expert testimony because okay, the blood
reference here regarding presumption of legitimacy that you will not testify. The semen will not testify. So for all intents
can find in the various provisions of the civil code that and purposes, you need to remember, expert evidence or
children born or conceived of a child during the marriage expert opinion, opinion evidence lang na siya which general
are presumed legitimate. There’s always that bias by the law rule, under the rules of court, is generally not allowed. We
that favors legitimacy children regardless of how … the are not allowed to give an opinion in court. The only
circumstances can be. opinion that matters in court is the court’s opinion. So what
we think about the matter actually does not matter.
Now, Article 166, the legitimacy of a child may be
impugned only on the following grounds like no. 2 that for Remember also that object evidence does not lie and the
biological or scientific reasons, the child could not have been expert, the person who processes the DNA evidence, and
that of the husband except in the instance provided in the testifies about it. So, object evidence by itself is reliable but
2nd paragraph of Article 164 which talks about artificial the matter of collecting, processing and preserving it may be
insemination. So, biological or scientific reasons. What could prone to error. It is object evidence that can only be
be a better scientific reason that based on the DNA appreciated by the aid of expert testimony.
evidence, the child could not have been fathered by the
husband. So, that is one scientific reason. So, based on Section 2, we apply the Rules of Court
suppletorily to cases covered by the Rule on DNA evidence.
Article 167, the child shall be considered legitimate although As previously mentioned, it includes Rule 130 Section 49
the mother may have declared against its legitimacy or may which talks about the opinion of expert witnesses. So, if the
have been sentence as an adulteress. Again, there’s that opponent admits that the witness is an expert, he can
presumption of legitimacy even if the mother herself has immediately proceed to his testimony and give his opinion.
declared against its legitimacy by saying that kining bataa ni We don’t have a problem there. But if the opponent does not
dili mani anak sa akoang bana. Akoa ning anak pero dili ni siya admit that the person testifying is an expert, before he can
anak sa akoang bana. Just weird diba? testify, he must firstly qualify. That’s the process as to
Take note that the presumption of legitimacy of children qualifying a witness. It means the act of proving that the
born during the marriage is simply or merely disputable. witness is an expert. This is done by making him testify
It’s not conclusive. It is subject to contrary proof. While the through preliminary questions as to his training, education
finding of adultery does not by itself rebut the presumption and expertise. We’ll go to that when we reach Section 49.
of legitimacy and as I’ve previously noted, DNA evidence For now diha lang sa ta.
will therefore be presented to prove that by biological or Let’s go to Section 3, definition of terms. I just want you to
scientific reasons the child could not have been that of his remember what these terms are. No need to memorize.
own. Okay?! What is a sample, DNA, DNA evidence, DNA
In civil actions, the rule on DNA evidence does not even profile or the genetic information derived from DNA testing
distinguish between ordinary and special civil actions and of a biological sample obtained from a person which
therefore it is possible to apply the rule to special civil biological sample is clearly identifiable as originating from
actions such as actions for support. Remember that support that of the person. And DNA testing, what is the meaning?
based on the family code provisions would actually bent on A verified, credible and scientific method which includes
family relationships. You will not be obliged to give support the extraction of a DNA profile of a sample, the generation
to a person na dili mo related. You are obligated to give of DNA profiles and the comparison of the information
support to someone whom you are not related. So if that obtained from the DNA testing of biological samples for the
boils down to the determination of relationship between the purposes of determining the reasonable certainty of whether
person claiming support and a person being obliged to give or not the DNA obtained from two or more distinct sample
support, DNA evidence can therefore be used. originates from the same person. That is direct identification
or if the biological samples originated from related persons,
In special proceedings, remember the definition of a special kinship analysis. Because normally, you have ½ of the DNA
proceeding. A remedy by which the parties seek to establish of your mother and ½ of the DNA of your father. Right? So
a status or right of a particular fact. An example of that you can be proven to be related to your mother and
would be paternity suits. DNA testing would actually be independently, you can be proven to be related to your
quite useful in paternity suits. What else? Habeas corpus father. As simple as that. And finally, you have this term,
proceedings Rule 102 where habeas corpus may be resorted probability of parentage. It means that the numerical
to in cases where the rightful custody of any person is estimate or the likelihood of parentage of the putative
withheld from the person entitled thereto. It is proper legal parent compared to the probability of a random match of
remedy to enable parents to retain the custody of a minor two unrelated individuals in a given population. Just
child such as in the case of Salvalle vs Herrera in the case of remember these terms.
kidnapping. Now, they wanted to find out if ang kadto
bang bata na nakidnap a long time ago is really their child. Let’s go to Section 4, Application for DNA testing order. The
How they found it out? They can resort to DNA testing. appropriate court may, at any time, either motu proprio or
on application of any person who has a legal interest in the
Section 2, application on the rules of evidence, remember matter in litigation, order a DNA testing.
that the rules of court and other pertinent rules on evidence
20:01-30:00 (Gillian Grancho)
shall apply which means that are supposed to go back to
what we learned relating to the different types of evidence
Sec. 4. Application for DNA Testing Order. – The
and the characteristics of object evidence and also
appropriate court may, at any time, either motu proprio or

51
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

on application of any person who has a legal interest in the the case. What case? It doesn’t matter. It can be criminal,
matter in litigation, order a DNA testing. Such order shall civil or it can be a special proceeding. It can be compelled.
issue after due hearing and notice to the parties upon a
showing of the following: In reference to Sec 5(c), it could be that the DNA sample is
quite minute, gamay na lang jud kaayo ang nabilin. It could
1. A biological sample exists that is relevant to the case; be just traces found in the crime scene that cannot be
2. The biological sample: (i) was not previously subjected retested.
to the type of DNA testing now requested; or (ii) was
In the US, I read in an article that no matter how small the
previously subjected to DNA testing, but the results
sample is, they can replicate it by cloning. They can clone it,
may require confirmation for good reasons;
so bisang 1 drop lang, pwede sya ma 2 drops. I don’t know
3. The DNA testing uses a scientifically valid technique;
if you can do that here in the Philippines.
4. The DNA testing has the scientific potential to produce
new information that is relevant to the proper “An order granting the DNA testing shall be immediately
resolution of the case; and executory and shall not be appealable”.
5. The existence of other factors, if any, which the court
may consider as potentially affecting the accuracy of So if you’re going to question it what are you
integrity of the DNA testing. gonna do? You’ll have to file a petition for
certiorari. Just imagine how difficult. You cannot
This Rule shall not preclude a DNA testing, without need of appeal.
a prior court order, at the behest of any party, including law
enforcement agencies, before a suit or proceeding is “Any petition for certiorari initiated therefrom shall not, in any
commenced. way, stay the implementation thereof, unless a higher court issues
an injunctive order.”
If you looked at the paper that I wrote, I tried to make sense
of the term “Legal interest”. But it’s more on Civil So, useless gihapon sya, unless you, as law
Procedure the evidence; it’s more of legal standing actually. practitioners, if you’re going to question an order
granting a DNA test, you have to file an action for
Let’s skip that for now.
certiorari and you have to apply for a writ of
In reference to Sec 4(b), remember that there are many types preliminary injunction or temporary restraining
of DNA testing, you have STR,etc. order.

In reference to Sec 4(c), it somehow mirrors Daubert, that it The Supreme Court is now teaching you what to
must have gain acceptance in the scientific community. do.

In reference to the last paragraph, now what do we What’s the effect of filing of a petition for certiorari
immediately relate this to? Having a DNA testing despite under Rule 65? It shall not, in any way, stay the
the fact that there has been no case commenced, there’s no implementation thereof, unless there’s an
case pending in court. Mura sya ug mode of discovery injunctive relief.
under Rule 23-29 of the Rules of Court. In a way, there’s a
“The grant of DNA testing application shall not be construed as
mode of discovery under the Rule on Evidence.
an automatic admission into evidence of any component of the
DNA evidence that may be obtained as a result thereof.”
Sec. 5. DNA Testing Order. – If the court finds that the
requirements in Section 4 hereof have been complied with,
Remember that with respect to admissibility,
the court shall –
there’s no guarantee that it will be admitted into
evidence by the fact that the DNA testing has been
1. Order, where appropriate, that biological samples be
granted by the order by the court. Why?
taken from any person or crime scene evidence;
2. Impose reasonable conditions on DNA testing designed
Reasons:
to protect the integrity of the biological sample, the
testing process and the reliability of the test results, 1. DNA evidence, as any other type of evidence,
including the condition that the DNA test results shall must pass the basic tests of relevancy and
be simultaneously disclosed to parties involved in the competency;
case; and
3. If the biological sample taken is of such an amount that 2. DNA evidence must still be formally offered in
prevents the conduct of confirmatory testing by the order for the court to consider it; and
other or the adverse party and where additional
biological samples of the same kind can no longer be 3. A witness must still testify as to the result of the
obtained, issue an order requiring all parties to the case test.
or proceedings to witness the DNA testing to be Those are the reasons based on the basic principles
conducted. that we already learned related to evidence.
An order granting the DNA testing shall be immediately
executory and shall not be appealable. Any petition for
certiorari initiated therefrom shall not, in any way, stay the Again, DNA testing order is like a mode of discovery. So, it
implementation thereof, unless a higher court issues an is a built-in mode of discovery in DNA evidence. But take
injunctive order. The grant of DNA testing application shall note,
not be construed as an automatic admission into evidence of
any component of the DNA evidence that may be obtained  In modes of discovery, the results are not
as a result thereof. automatically admitted into evidence, as a general
rule. They have to be formally offered to be
admitted. In the case of a deposition, the deponent
In reference to Sec 5(a), now we go back again in the basic must still testify in court, subject to certain
postulate that I want you to remember, you can always be exceptions.
compelled to undergo DNA testing if you are a party to

52
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

We will learn later on that when the deponent does results? YES. Why? The physician-patient privilege
not come to court to repeat the contents of his communication rule does not apply in court-ordered testing.
deposition, it will be stricken off, as a general rule. There’s no such thing as privilege.
It will not be admitted into evidence because it is
considered as hearsay. Hearsay ang tawag nato ana Let’s go to Section 6 which, to my mind, is the most
because there’s no opportunity for cross- controversial.
examination.
Section 6. Post-conviction DNA Testing. – Post-conviction
Remember also that there are exceptions, when the DNA testing may be available, without need of prior court
deponent is already dead or unable to testify, etc. order, to the prosecution or any person convicted by final
we explain later on when we go to testimonial and executory judgment provided that a biological sample
evidence. exists,
such sample is relevant to the case, and the testing would
 Under modes of discovery, we have Rule 28 probably result in the reversal or modification of the
(Physical and Mental Examination of Persons). The judgment of conviction.
Court may actually order that you undergo a
physical examination by the doctor to determine So, it might affect the judgment of conviction. Remember,
injury, or mental examination. And in Section 4, we have discussed a lot of cases for post-conviction DNA
there is that waiver of privilege. testing. Yet, for some years, the Supreme Court has been
reluctant in allowing requests for DNA tests. We have
Penaso, De Villa, Rayle, Andal, and Macapal prior to the
Rule 28, Section 4. Waiver of privilege. – By requesting and promulgation of the Rules on DNA Evidence. In all those
obtaining a report of the examination so ordered or by cases, the Supreme Court denied the requests. Why?
taking the deposition of the examiner, the party examined Because it was stubborn in denial or that the discharge of
waives any privilege he may have in that action or any other semen is not an element of rape.
involving the same controversy, regarding the testimony of
every other person who has examined or may thereafter What the Supreme Court favored were testimonies that
examine him in respect of the same mental or physical identified the accused as to the crime. But we have yet to
examination. figure out if, pag promulgate ba sa Supreme Court on DNA
Evidence, mag change na ba ni or it’s still the old song the
What privilege are we talking about? We are talking about Supreme Court has been singing that pregnancy is not an
physician-patient privilege communication. You go to a element of rape.
doctor, and in order to encourage the patient to reveal
everything to his doctor, everything that happens there, the Rape and DNA Evidence in Post-conviction DNA Testing.
results of test, it is supposed to be confidential.
Foremost on that would be People vs. Umanito (October 6,
A doctor cannot normally divulge medical information to a
2007).
third person, it remains a matter between the doctor and the
.
patient.

What if it is about DNA evidence? PEOPLE v UMANITO (2007 & 2009)

I present to you a hypothetical case, what if JZE married What happened here was that there was already a judgment
Maja and had an affair with Bangs. Bangs got pregnant and convicting Umanito of rape. The SC, when it promulgated
delivered a baby but JZE is not sure about the paternity of the Rule on DNA Evidence, gave it retroactive effect and
the child. So he privately went to Dr. Hayden to have the applied it to case of Umanito. Such that the SC, through
DNA testing in secret. It turns out that he is actually the Justice Tinga, remanded it to the lower court to determine
father of the child. whether or not kinahanglan ba ug DNA. So, was there a
DNA match? The result when it came back to the Supreme
Now, ordinarily, under the physician-patient privilege
Court was 99.9999% match.
communication rule, Dr. Hayden cannot be compelled to
divulge that DNA test. And because it will tend to blacken
Given that the results of the Court-ordered DNA testing
the reputation of the patient, the physician-patient privilege
conforms with the conclusions of the lower courts, and that
communication rule will apply.
no cause is presented for us to deviate from the penalties
imposed below, the Court sees no reason to deny Umanito’s
00:30-0:40 (Until Section 10) (Jennifer Lim) Motion to Withdraw Appeal.

….The physician-patient privilege communication would Facts: The instant case involved a charge of rape. The
apply. However, suppose the DNA test was made in a civil accused Rufino Umanito was found by the RTC
case, filed by Bangs against JZE, Bangs applied for and may guilty beyond reasonable doubt of the crime of rape. The
be issued DNA testing. Take note that the same DNA test alleged 1989 rape of the private complainant, AAA, had
been conducted under Rule 28, the same rules would apply resulted in her pregnancy and the birth of a child hereinafter
for the waiver of conditions of DNA testing. identified as “BBB.”
In view of that fact, as well as the defense of alibi raised by
However, under the Rule on DNA Evidence, there is no rule Umanito, the Court deemed uncovering whether or not
on waiver or on physician-patient privilege. In fact, in Umanito is the father of BBB.
several cases decided by the Supreme Court, that the person The DNA analysis on the Buccal Swabs and Blood stained
could be compelled to undergo DNA testing in civil or on FTA paper taken from [AAA], [BBB], and Umanito,
criminal cases without violating the right against self- to determine whether or not Umanito is the biological father
incrimination. of [BBB], showed that there is a Complete Match in allof the
15 loci tested between the alleles of Umanito and [BBB];
Can the physician who conducts the DNA testing, according That based on the above findings, there is a 99.9999%
to the order of the court, be compelled to divulge the probability of paternity that Umanito is the biological father

53
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

of BBB. *Story about sir on not accepting rape cases. I would prefer to
be defense counsel because all you have to prove is the existence of
RULING: Court resolved, for the very first time, to apply reasonable doubt.*
the then recently promulgated New Rules on
DNA Evidence (DNA Rules). The DNA testing has evinced What happens when the results are favorable? Let’s
a contrary conclusion, and that as testified to by suppose that after conviction, DNA testing is made and the
AAA, Umanito had fathered the child she gave birth to on 5 results are favorable to the accused? I can say that you are
April 1990, nine months after the day she said she not the one who fathered the child or it’s not your DNA
was raped by Umanito. found on the semen sample, but you were already guilty.
The disputable presumption that was established as a result What will happen? What would be the remedy, in case the
of the DNA testing was not contradicted and overcome by post-conviction DNA?
other evidence considering that the accused did not object to
the admission of the results of the DNA testing (Exhibits Section 10. Post-conviction DNA Testing – Remedy if the
“A” and “B” inclusive of sub-markings) nor presented Results Are Favorable to the Convict. – The convict or the
evidence to rebut the same. prosecution may file a petition for a writ of habeas corpus in
By filing Motion to Withdraw Appeal, Umanito is deemed the court of origin if the results of the post-conviction DNA
to have acceded to the rulings of the RTC and the Court of testing are favorable to the convict. In the case the court,
Appeals finding him guilty of the crime of rape, and after due hearing finds the petition to be meritorious, it shall
sentencing him to suffer the penalty of reclusion reverse or modify the judgment of conviction and order the
perpetua and the indemnification of the private release of the convict, unless continued detention is justified
complainant in the sum of P50,000.00. for a lawful cause.
A similar petition may be filed either in the Court of
Gi-withdraw kay match man gihapon. But, mablame ba Appeals or the Supreme Court, or with any member of said
nimo siya? He was about to be convicted and spend his courts, which may conduct a hearing thereon or remand the
entire life in prison. Last ditch effort. Read the case of petition to the court of origin and issue the appropriate
Umanito (April 16, 2009) and I want you to take note of the orders.
procedure taken by the regional trial court, because that was
the first time the court applied the rule on DNA Evidence. It 40:01 – 50:00 (Edsam Andit)
would be quite instructive
Section 10, RODE
PEOPLE v MAGLENTE Post-conviction DNA Testing – Remedy if the Results Are
June 28, 2009 Favorable to the Convict. – The convict or the prosecution may
file a petition for a writ of habeas corpus in the court of
Facts: Complainant alleges that Maglente, her biological origin if the results of the post-
father, had subjected her to sexual abuse as early as 1997, conviction DNA testing are favorable to the convict. In the
when she was still nine (9) years old, until 13 July 2002, case the court, after due hearing finds the petition to be
when she reached 14 years of age. As a result of her father’s meritorious, it shall reverse or modify the judgment of
molestation, she became pregnant and delivered a baby boy conviction and order the release of the convict, unless
on October 1, 2002, which she gave up for adoption. On continued detention is justified for a lawful cause.
cross-examination, private complainant testified that she
was willing to have her baby undergo DNA testing but the A similar petition may be filed either in the Court of
baby’s whereabouts were unknown to her. Appeals or the Supreme Court, or with any member of said
Ana ang accused, dapat nay DNA kay for all we know, dili courts, which may conduct a hearing thereon or remand the
match amoang DNA. Now, wala man ta kabalo asa ang petition to the court of origin and issue the appropriate
bata. orders.

Held: Even if the DNA tests were conducted and it


If the result of the post-conviction hearing testing, are
established that appellant had not fathered the child, it
favorable to the convict, the remedy is to file a petition for
would still be inconclusive to prove that appellant was not
habeas corpus. And it is not the first time that we encounter
guilty of having raped private complainant. He cannot
habeas corpus in the context of DNA law and jurisprudence.
obtain an acquittal based on the circumstances of private
Remember, we have discussed the case of IN RE DE
complainant’s pregnancy.
VILLA.

Why? Impregnation is not an element of rape. Even proof In Re De Villa


that the child was fathered by another man does not show Reynaldo de Villa was sentenced to death for raping his 12-
that the appellant is not guilty. For the conviction of an year-old niece, Aileen Mendoza. (Imaginun nato na si
accused, the pregnancy of the victim is not required to be Reynaldo de Villa kay si Ian Veneracion) who had
proved, since it is sufficient that the prosecution establish subsequently given birth to a baby girl. De Villa had
beyond reasonable doubt, as it had in this case, that the always maintained his innocence from the very beginning,
accused had forced sexual relations with the victim. but no paternity test had been carried out to establish
whether or not he was the father of the child.
Why is the Supreme Court so adamant even with the Rule
on DNA Evidence? Because the SC knows that:
1. Not all rapes end in pregnancy. Now, because de Villa was in priSo,n, Cora de Ungria—
2. The SC has always been consistent in saying that a she’s actually very famous right now, she’s like the Sherlock
woman, who has been raped, would not go to the Holmes of the Philippines, head of the DNA laboratory
humiliation, for a fabricated charge of rape. analysis of UP—could not obtain a DNA sample from de
Especially so, if it is against a relative. The SC has Villa directly. So,, what did she do? She did So,mething
time and again ruled that. cloak-and-dagger. Ang gibuhat niya, she enlisted the help of
the priSo,n priest. Padre. Sa atong palabas kay si Fr. Gus
kuno na. He visited de Villa carrying a sterile blade and a
blood collection vial hidden beneath his clothes. Di gud na

54
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

pwede dapat. You can’t do that. You’re smuggling, what? A TAKE NOTE!!!
bladed weapon! So,, di na sya dapat pwede, but he was able
to do it. You have to take note now that Sec. 10 can now be a viable
legal basis for habeas corpus by the direct provision of law.
But that’s only one part of the equation. Kinahanglan So, even if you have already been convicted and you were
gihapon niya’g blood sample to compare with the DNA applying for a post-conviction DNA testing which was
sample already given by de Villa. So, de Ungria needed a granted, and later on obtained a favorable result, even if it
sample from the child who was already 10 years old daw. has no bearing or no relation to the 3 legal grounds
De Villa’s grandSo,n, a schoolmate of Mendoza’s daughter, enumerated by the SC for habeas corpus, you can now
was coached to organize a spitting competition in the invoke Sec. 10 as a ground by direct provision of law under
playground. Just imagine, noh? Uy, dinhia ta sa the Rules on DNA evidence.
playground! O, mangluwa ta! Padaghanay ta’g luwa! (LOL)
Just imagine a spitting competition. So, he collected the
girl’s spit in a cup and de Ungria used it to generate a DNA So, What the SC said before is that the relief (post DNA
code. So, the 2 sides of the equation is complete. Biological testing) is outside of the scope of the writ of habeas corpus
sample from de Villa and biological sample from the petition, is now to be considered as officially abrogated by
putative child. So, the results confirmed that de Villa was the promulgation of the Rules on DNA evidence.
not the girl’s father.
And you need to recall also that in the case of De Villa, the
Supreme Court’s decision not to grant to motion here was
But the Supreme Court refused to consider the new
based on the principle that pregnancy is not an element of
evidence and So, he remained on death row. So, they have
rape. The SC has consistently upheld this ever since the Rule
no choice now but to file a petition for habeas corpus, citing
on DNA Evidence was promulgated. Maglente, Hipona,
that de Villa was wrongfully convicted. The Supreme Court
Cabigkis, Lucero. Wa gyud. Way pag bag-o. However,
said, “Petitioner invokes the remedy of habeas corpus to
paternity or the negation thereof should be used as evidence
seek a re-examination of the records without asserting any
to exonerate the accused or convict in a rape case if it is
legal grounds therefor. Unsa man gyud diay ning mga legal
warranted by the factual milieu of the case. At least, that’s
grounds ani?
what I suppose. As I told you previously, the SC need not be
 There has been a deprivation of a Constitutional so stubborn. That without looking at the facts of the case, it
right resulting in the restraint of the liberty of the would just automatically conclude that “pregnancy is not an
person. element of rape”.
 The Court has no jurisdiction to impose the For example, in de Villa, the complaint and the judgment
sentence. made reference to the fact that it was the act of the rape that
 An excessive penalty has been imposed as such got the niece pregnant and for her to conceive and bear a
sentence is void as to such excess. child. Since you alleged that, you have to prove that. Now
These are the 3 grounds that the SC gave when filing for what happens if the DNA testing result that disproves that?
habeas corpus questioning a conviction. And none in these At the very least, it becomes reasonable doubt. As simple as
that.
instances does it say that new evidence can be a ground to
invoke the extraordinary writ of habeas corpus. Further, the So, the request for paternity testing was also consistent with
SC said that the petitioner invokes the writ to assail a final the defense presented at trial. The appellant’s testimony of
judgement of conviction without providing a legal ground his incapacity for sexual intercourse due to his advanced
thereof. age was supported by his wife’s testimony. Di ba mao ni
The SC is merely saying here na “banga kaayo imong iyahang defense? Na dili niya kaya buhaton. But there were
abogado!” Ngano man siya nag file ug writ of habeas also allegations of multiple perpetrators or of promiscuous
corpus without citing a legal ground? So, it is actually a behavior of the victim. More importantly, records show that
denial of the issuance of the writ of habeas corpus on the the trial court based its decision entirely on the birth of the
ground that you did not properly pray for it. That’s what child. Di ba? Giingon sa lower court na because a child was
the SC is saying. It is based on technicality. born the child was raped. You cannot now deny sexual
intercourse because in fact nabuntis. Nanganak.

In Penaso even…
So, has De Villa now been abrogated by Sec. 10? Because
50:01 – 1:00 (Dane Viola)
Sec. 10 is now saying that favorable results in DNA testing
can now be used as a ground for habeas corpus. So, in a The criminal complaint alleged that as a result of the act, an
way, it is a reversal. Tama ba? unwanted pregnancy resulted.
Not really. Because it is logical to assume in this case that If what was alleged was that “I got pregnant because I was
had the petition had a proper ground and been properly raped”, if the accused was not the father, then clearly the
invoke and prayed for, a different remedy might have complainant lied. But the SC is so stubborn in saying that
issued. pregnancy is not an element of the crime of rape. We have
Take note of the following pronouncements in the De to look at the factual milieu of the case and not just
Villa case: stubbornly apply such doctrine.

 The denial of a Constitutional right was not alleged No matter how much you argue with this escape hatch, if
by the petitioner. Hence, how can there be a denial the SC wants to wash its hands by saying that pregnancy is
of a Constitutional right when it was not alleged? not an element of rape, even if you are accused of estafa,
pregnancy will still not be an element of rape.
That was the reason why the petition was denied.
 The petitioner invokes a remedy to seek a re- PP v Basallo
examination of the records of In re: De Villa
without invoking a proper legal ground. For a man who vehemently asserts his innocence, it
mystifies the mind that appellant would not exhaust all

55
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

available avenues to prove his innocence especially DNA a. The falsifiability of the principles or
testing that would conclusively prove that he is not the methods used, that is, whether the theory
father of ABC’s son who is alleged to be the fruit of his or technique can be and has been tested;
crime.
b. The subjection to peer review and
It would be logical to assume that in the case of Basallo, had publication of the principles or methods;
there been a DNA testing that would conclusively prove
that he was not the father of the child, would the SC rule c. The general acceptance of the principles
that he is entitled to be acquitted? NO. The SC will still say or methods by the relevant scientific
that pregnancy is not an element of rape. community;
You don’t even have to read this cases because you know
d. The existence and maintenance of
what the outcome will be. So what is the purpose of post-
standards and controls to ensure the
conviction DNA testing when it can never successfully
correctness of data generated;
assail the conviction on the simplistic ground that
pregnancy is not an element of rape.
e. The existence of an appropriate reference
Going back to the case of De Villa, the head of the population database; and
laboratory of UP was so convinced of the innocence of De
Villa that she marshaled international pressure which then f. The general degree of confidence
led Pres. GMA to pardon him, still 11 years of his life was attributed to mathematical calculations
gone. Imagine he was 67 y.o at the time of the alleged rape used in comparing DNA profiles and the
and when he was pardoned he was already 78 and significance and limitation of statistical
definitely he cannot rape anymore. calculations used in comparing DNA
profiles.
It’s not as if all convictions are correct convictions, there are
a lot of wrongful convictions. Realizing this, Pres GMA This is practically what the Daubert Test is all about in the
signed RA 9346 once again abolishing the death penalty. case of PP v Yatar.

There’s no use actually, based on jurisprudence no Sec. 9. of DNA Testing Results. – In evaluating the results of
conviction was ever overturned by a DNA test done post- DNA testing, the court shall consider the following:
conviction.
a. The evaluation of the weight of matching DNA
Sec. 7. Assessment of probative value of DNA evidence. – In evidence or the relevance of mismatching DNA
assessing the probative value of the DNA evidence evidence;
presented, the court shall consider the following:
b. The results of the DNA testing in the light of the
a. The chair of custody, including how the biological totality of the other evidence presented in the case;
samples were collected, how they were handled, and that
and the possibility of contamination of the
samples; c. DNA results that exclude the putative parent from
paternity shall be conclusive proof of non-
b. The DNA testing methodology, including the paternity. If the value of the Probability of
procedure followed in analyzing the samples, the Paternity is less than 99.9%, the results of the DNA
advantages and disadvantages of the procedure, testing shall be considered as corroborative
and compliance with the scientifically valid evidence. If the value of the Probability of Paternity
standards in conducting the tests; is 99.9% or higher there shall be a disputable
presumption of paternity.

The important provision here would be paragraph (c), this


c. The forensic DNA laboratory, including
is conclusive evidence in the same way that age in certain
accreditation by any reputable standards-setting
cases may also be proof of lack of discernment for offenders
institution and the qualification of the analyst who
below 9 yrs of age.
conducted the tests. If the laboratory is not
accredited, the relevant experience of the I don’t know if DNA is positive or confirmatory whether is
laboratory in forensic casework and credibility a win or a loss, because I know a lawyer who has undergone
shall be properly established; and multiple paternity tests and lost every time.

d. The reliability of the testing result, as hereinafter


provided.
1:00:01 – 1:10:00 (Christian Yu)
e. The provisions of the Rules of Court concerning You cannot refute a 99.99999.
the appreciation of evidence shall apply
suppletorily. Weight of Matching DNA Evidence

f. This mirrors almost completely the SC ruling in the Ok take note Weight means reliability and probative value
case of PP v Vallejo. of evidence.

So if the DNA samples match, the court is tasked to


g. Sec. 8. Reliability of DNA Testing Methodology. – determine whether the DNA testing result is reliable and
In evaluating whether the DNA testing what evidentiary value it will assign to it . whether or not
methodology is reliable, the court shall consider the evidence is to be believed.
the following:
Relevance of mismatching DNA evidence

56
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

And you know that in relevancy, you know the definition of FBI to match the DNA.
that.
And the SC here said that, the foregoing pieces of
Thus, under this factor, the court should consider whether circumstantial evidence when analyzed and taken together
or not the fact that the DNA profiles do not match bears a definitely lead to no other conclusion that Yau was the
relation to the fact in issue in the case. author of the kidnapping for ransom and he was convicted
for the crime.
For example:
So DNA evidence there was actually used as circumstantial
If the seamen found in the vagina of the victim does not evidence of the guilt of the accused for the crime of
match the DNA profile of the accused. Would it be relevant kidnapping for ransom.
to the issue on whether or not the accused raped the victim?
More importantly, again i already told you this, kaning
PEOPLE vs. CABIGCUEZ, G.R. No. 185708, (September 29, letter C, 99.9 lower or 99.9 higher.
2010)
RODE Sec. 9. on DNA Testing Results. –
Where the SC still said, dili lng gihapon. Neither a positive
DNA match of the seamen nor the presence of spermatozoa In evaluating the results of DNA testing, the court shall
is essential in finding that rape was committed. consider the following:
Wala gihapon ang gina-ingon sa SC. Nonsense lagi kaayo sa
tinuod lng.
C) DNA results that exclude the putative parent form
Results of DNA testing in the light of the totality of the paternity shall be conclusive proof on non-paternity. If the
other evidence: value of the Probability of Paternity is less than 99.9%, the
results of the DNA testing shall be considered as
A positive DNA match is unnecessary when the totality of
corroborative evidence, if the value of the Probability of
the evidence presented before the court points to no other
Paternity is 99.9% or higher there shall be a disputable
possible conclusion than the appellant raped the private
presumption of paternity.
offended party.

A positive DNA match may strengthen the evidence for the


prosecution, but an inconclusive DNA test result may not be So just to present visually to you what will happen if it is
sufficient to exculpate the accused, particularly when there less than 99.9%. So 99.89999 and below, it is used as
is sufficient evidence proving his guilt. corroborative evidence. So it should be used in addition to
So you have to look at the totality. Dili lng katong DNA. the traditional proof of filation.

Now take note with that ruling of the SC in Cabigcuez that a 99.9% or higher as disputable presumption of paternity.
positive DNA match may only strengthen evidence of the Disputable presumption ra gihapon siya. Sounds familiar to
prosecution. Strengthen lng, it is not the ultimate you? Kaning 99.9 or higher or 99.9 or lower. Yes because we
determinant of guilt. It means that DNA can merely be already discussed that. It was practically taking the ruling in
circumstantial evidence for the prosecution. SC in the case of Herrera vs. Alba and turned it into a rule.
So its just one of the circumstances mentioned in rule 133, Mao ng nahitabo diri.
section 4 which we will discuss at the proper time. Diri lang, naa siyay gigamit na term “W” – Probability Of
Paternity instead of Parentage.
Rule 133, Section 4. Circumstantial evidence, when
sufficient. Okay, so 99.99% – less than 99.99%, or 99.99% or higher.
Circumstantial evidence is sufficient for conviction if: So the question is: Is DNA testing viable as a means of
proving filiation? Nay naga claim na anak nimo siya. How
(a) There is more than one circumstance;
does that putative child prove na anak nimo siya?
(b) The facts from which the inferences are derived are
AGUILAR VS. SIASAT: (01/28/15)
proven; and
Walay DNA diri but you can make that connection to DNA
(c) The combination of all the circumstances is such as to
evidence.
produce a conviction beyond reasonable doubt.
The filiation of illegitimate children, like legitimate children,
Now here is an interesting case. The case of PEOPLE vs. is established by
YAU (2014)
1. the record of birth appearing in the civil register or
It is a case of kidnapping for ransom. Ok. And the whole
a final judgment; or
time of capture. Katong gi kidnap na victim. The accused
2. an admission of legitimate filiation in a public
always wore a red mask. Naka-maskara all the time. So
document or a private handwritten instrument and
wala gyud niya nakita.
signed by the parent concerned.
Now when the victim was rescued. Of course naka escape
ang kidnappers pero nabilin sa crime scene ang red mask.
So DNA evidence. the dead skin cells for example. That is a In the absence thereof, filiation shall be proved by
source of DNA.
1. the open and continuous possession of the status of
So a test conducted by the Federal Bureau of Investigation a legitimate child; or
reveals that the DNA found I the mask used by private 2. any other means allowed by the Rules of Court and
complainant’s captor matched that of appellant Petrus Yau. special laws.
So imagine ni import pa ta sa US. Nagpa-conduct pa ta ug
test sa US Federal Bureau of Investigation. “any other means allowed by the ROC and special laws”

57
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Then probably, the Rule on DNA Testing can be considered Family Code provides: Article 167. The children shall be
as those other means. Pwede siya na ma-include diha. considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced
Mahimo siya na other evidence, merely tending to prove as an adulteress.
paternity aside from record of birth, a will, a statement
before a court of record, etc., is essential in order to establish With the advancement in the field of genetics, and the
the child’s acknowledgement. availability of new technology, it can now be determined
with reasonable certainty whether Rogelio is the biological
LUCAS VS. LUCAS: (2011) father of the minor, through DNA testing.
Antiquated na siya na principle but the SC still continues to However, Rogelio has long been dead.
apply it.
Issue:
There are four significant procedural aspects of a traditional
paternity action which the parties have to face: Is DNA testing still possible? YES.

1) a prima facie case, Ruling:


2) affirmative defenses,
3) presumption of legitimacy, and The death of the petitioner does not ipso facto negate the
4) physical resemblance between the putative father application of DNA testing for as long as there exist
and the child. appropriate biological samples of his DNA.

In short, DNA can still be seen in inanimate objects.


If you recall the case of Cabigquez – kadto bitaw they had to
The term biological sample means any organic material
go somewhere to do it, with the maid, gi tour pa gani niya
originating from a person’s body, even if found in inanimate
para lang bigyan. Just imagine. Unya nabuntis, so got
objects, that is susceptible to DNA testing. This includes
pregnant and gave birth 8 months later. Di ba mao nah siya?
blood, saliva, and other body fluids, tissues, hairs and
Unsay gigamit didto? Physical resemblance lang. So
bones.
antiquated because a lot of people look alike, especially the
Indians, they all look alike. Thus, even if Rogelio already died, any of the biological
samples as enumerated above as may be available, may be
Now, chismis ta gamay.
used for DNA testing. In this case, petitioner has not shown
(The talk about the Kardasians – that Kourtney Kardasian the impossibility of obtaining an appropriate biological
does not look like her dad. sample that can be utilized for the conduct of DNA testing.
And even the death of Rogelio cannot bar the conduct of
Allegedly, OJ Simpson is her father.) DNA testing.

So the body can still be exhumed. Thankfully the body was


not cremated (where no viable DNA can be obtained).
1:10:01 – 1:20:00 (Benrich Tan)
LUCAS vs. LUCAS (2011) (Note: Digest obtained from 2016
Cases Surveying DNA Paternity Suits TSN)
ESTATE OF ONG vs. DIAZ (2007) In a petition to establish illegitimate filiation, the SC was
Facts: confronted with the question: Is a prima facie showing of
reasonable probability of paternity necessary before a court
A complaint for compulsory recognition with prayer for can issue a DNA testing order?
support pending litigation was filed by minor Joanne Diaz,
represented by her mother and guardian, Jinky, against (What’s a prima facie case? You prove preliminarily that
Rogelio G. Ong, before the RTC of Tarlac City. there is a probability of parentage. How do you do that? So
prior to asking for a DNA testing order, you present
Jinky and Rogelio got acquainted in November 1993 in witnesses tending to show the traditional proof of filiation.
Tarlac City. This developed into friendship and later Nga ning-aknowledge niya na anak siya niya; nagsign siya
blossomed into love. At this time, however, Jinky was ug birth certificate, etc.) (Note that Section 4 of the Rule on
already married to a Japanese national. DNA Evidence does not mention prima facie case as a
requirement.)
From January 1994 to September 1998, Jinky and Rogelio
cohabited and lived together. From this live-in relationship, HELD: In some states, to warrant the issuance of DNA
Joanne Rodjin Diaz was conceived and born on 25 February testing order, there must be a show cause hearing wherein
1998. In September 1998, Rogelio abandoned Joanne and the applicant must first present sufficient evidence to
Jinky, and stopped supporting the child, alleging that he is establish a prima facie case or a reasonable possibility of
not the father of the child. While the case was pending, paternity or good cause for the holding of the test.
Rogelio died.
The same condition precedent should be applied in our
So the child’s claim would be against Rogelio’s estate. The jurisdiction to protect the putative father from mere
Court held that the burden of proving paternity is on the harassment suits. Thus, during the hearing on the motion
person who alleges that the putative father is the biological for DNA testing, the petitioner must present prima facie
father of the child. There are four significant procedural evidence or establish a reasonable possibility of paternity.
aspects of a traditional paternity action which parties have (The SC is adding this as a requirement despite its absence
to face: a prima facie case, affirmative defenses, in Sec.4)
presumption of legitimacy, and physical resemblance
between the putative father and child. Notwithstanding these, it should be stressed that the
issuance of a DNA testing order remains discretionary upon
A child born to a husband and wife during a valid marriage the court. The court may, for example, consider whether
is presumed legitimate. As a guaranty in favor of the child there is absolute necessity for the DNA testing. If there is
and to protect his status of legitimacy, Article 167 for the already preponderance of evidence to establish paternity

58
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

and the DNA test result would only be corroborative, the Example #2: Destierro also included, because it’s still a
the court may, in its discretion, disallow a DNA testing. sentence (restrain over liberty).

Atty JZE (from 2018 recording): Just go over this case. Nothing
much here, it’s too technical.
1:20:01 – 1:30:00 (Anton Maligad)
Sec. 11. Confidentiality. – DNA profiles and all results or
other information obtained from DNA testing shall be Destiero will still apply because it is a restraint as to your
confidential. Except upon order of the court, a DNA profile liberty.
and all results or other information obtained from DNA
In all other cases including civil cases, until such time as the
testing shall only be released to any of the following, under
decision in the case where the DNA Evidence was
such terms and conditions as may be set forth by the court:
introduced has become final and executory.
A. Persons from whom the sample was taken;
The Court may allow the physical destruction of the
B. Lawyers representing parties in the case or action
biological sample before the expiration of the period set
where the DNA evidence is offered and presented
forth. Provided, that a court order for that effect has been
or sought to be offered and presented;
secured or the person from whom the DNA sample was
C. Lawyers of private complainants in a criminal
obtained has consented in writing to the disposal of the
action;
DNA evidence. [A requirement of Preservation]
D. Duly authorized law enforcement agencies; and
E. Other persons as determined by the court. (Rules on DNA Evidence)
Whoever discloses, utilizes or publishes in any form any Sec. 13. Applicability to Pending Cases. Except as provided
information concerning a DNA profile without the proper in Section 6 and 10 hereof, this Rule shall apply to cases
court order shall be liable for indirect contempt of the court pending at the time of its effectivity.
wherein such DNA evidence was offered, presented or
sought to be offered and presented. Where the person from Just take note of the case of People vs. Umanito. (Read in
whom the biological sample was taken files a written full text)
verified request to the court that allowed the DNA testing
PEOPLE vs. UMANITO
for the disclosure of the DNA profile of the person and all
results or other information obtained from the DNA testing, In case proof of filiation or paternity would be unlikely to
the same may be disclosed. satisfactorily establish or would be difficult to obtain, DNA
Testing, which examines genetic codes from body cells of
Sec. 12. Preservation of DNA Evidence. The trial court shall
the illegitimate child and any physical residue of the long
preserve the DNA evidence in its totality, including all
dead parent could be resorted to.
biological samples, DNA profiles and results or other
genetic information obtained from DNA testing. For this
purpose, the court may order the appropriate government
agency to preserve the DNA evidence as follows: If you recall that the rule was promulgated and the Supreme
Court ordered a remand that the pleading has taken a new
In criminal cases: name.
i. for not less than the period of time that any Sec. 14. Effectivity. This Rule shall take effect on October
person is under trial for an offense; or 15, 2007, following publication in a newspaper of general
ii. in case the accused is serving sentence, until circulation.
such time as the accused has served his
sentence;

In all other cases, until such time as the decision in the case SURVEY OF CASES ON DNA AND RIGHT OF
where the DNA evidence was introduced has become final ACQUITTAL
and executory. The court may allow the physical destruction
PEOPLE vs. PASCUAL (January 20, 2009)
of a biological sample before the expiration of the periods
set forth above, provided that: There is DNA testing but the result was not good, because
the specimen submitted (stained vaginal smear) and the
 A court order to that effect has been secured; or
dirty white panty had already undergone blood testing. So
 The person from whom the DNA sample was
there already been prior blood testing done.
obtained has consented in writing to the disposal
of the DNA evidence. Remember: That in the DNA Testing Standard
Methodology, that if such has been subjected to previous
In criminal cases (Atty. JZE: Pay attention to the time period tests it has the result of degrading the sample.
required):
Q: Does the result of the DNA Examination, which was
a. for not less than the period of time that any person
already degraded by prior testing, entitle the accused-
is under trial for an offense; or appellant to acquittal?
b. The law intends to mean periods including the case A: The Supreme Court said that “NO, you are not entitled to
pending appeal or automatic review before SC, an acquittal. Even in the light of a flawed procedure, that
because it’s conceivable that the SC can remand does not entitle the appellant to an acquittal.”
and reorder DNA testing. Thus, it should be
preserved even during that period. PEOPLE vs. HIPONA

The appellant here argues that he should only be held liable


c. in case the accused is serving sentence, until such
for robbery and not for the Complex Crime of Rape with
time as the accused has served his sentence;
Homicide.
Example: X has been convicted of a crime carrying the
penalty of reclusion perpetua or life imprisonment.

59
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

He cites the testimony of the prosecution witness Aida of reclusion perpetua and on Biong, an indeterminate prison
Villora-Magsipoc, DNA expert of the NBI, that she found term of 11 years, 4 months, and 1 day to 12 years.
the vaginal smears taken from the victim to be negative of
the appellant’s DNA. On appeal, the CA affirmed the trial courts decision. On
motion for reconsideration by the accused, the CA’s Special
Ruling of the SC: Convicted! It is because the discharge of Division of 5 members voted 3 against 2 to deny the motion.
semen is not an essential element of rape. The important
consideration being no the emission of semen but the During the appeal to the SC, the Court issued a Resolution
penetration of the female genitalia by the male organ. granting the request of Webb to submit for DNA analysis
the semen specimen taken from Carmela’s cadaver, which
PEOPLE vs. CABIGCUEZ specimen was believed to be still under the safekeeping of
the NBI. The Court granted the request pursuant to Section
Neither a positive match of the semen nor the presence of 4 of the Rule on DNA Evidence.
spermatozoa is an essential finding that rape was
committed. The important consideration in rape cases is not Unfortunately, on April 27, 2010 the NBI informed the Court
the emission of semen but the penetration of the female that it no longer has custody of the specimen, the same
genitalia by the male organ. having been turned over to the trial court. The trial record
shows, however, that the specimen was not among the
PEOPLE vs. LUCERO object evidence that the prosecution offered in evidence in
The DNA test is not essential, while there exists other the case.
evidence pinning down accused-appellant as the The outcome prompted accused Webb to file an urgent
perpetrator. Indeed, if he honestly thought that the DNA motion to acquit on the ground that the government’s
test could have proved his innocence, he could have asked failure to preserve such vital evidence has resulted in the
for the conduct of said test during his trial instead of denial of his right to due process.
belatedly raising it on appeal, and attempting to dictate
upon the prosecution what course of actions it should have ISSUE: Accused Webb’s motion to acquit present a
undertaken. threshold issue: whether or not the Court should acquit him
outright, given the government’s failure to produce the
So what does “People vs. Lucero” tell you? semen specimen that the NBI found on Carmela’s cadaver,
It tells you that if you are adamant that a DNA test would thus depriving him of evidence that would prove his
prove your innocence, then have it done at the trial court innocence.
level and not before the Court of Appeals and not before the Webb claims, citing Brady v. Maryland, that he is entitled to
Supreme Court. outright acquittal on the ground of violation of his right to
LEJANO vs. PEOPLE otherwise known as the Vizconde due process given the State’s failure to produce on order of
Massacre the Court either by negligence or willful suppression the
semen specimen taken from Carmela.
Introduction: The Vizconde Massacre is the multiple
homicides of the persons of the Vizconde family on June 13, HELD: The medical evidence clearly established that
1991 at their residence in BF Homes, Parañaque. Carmela was raped and, consistent with this, semen
specimen was found in her. It is true that Alfaro identified
Estrellita, 49, had suffered thirteen (13) stab wounds; Webb in her testimony as Carmela’s rapist and killer but
Carmela, 18, had suffered seventeen (17) stab wounds and serious questions had been raised about her credibility. At
had been raped before she was killed; and Jennifer, 6, had the very least, there exists a possibility that Alfaro had lied.
nineteen (19) stab wounds. On the other hand, the semen specimen taken from Carmela
cannot possibly lie. It cannot be coached or allured by a
Lauro Vizconde, Estrellita’s husband, and the father of promise of reward or financial support. If, on examination,
Carmela and Jennifer, was in the United States on business the DNA of the subject specimen does not belong to Webb,
when the murders took place. then he did not rape Carmela. It is that simple. Thus, the
Court would have bgeen able to determine that Alfaro
Suspects:
committed perjury in saying that he did.
 Hubert Webb;
Still, Webb is not entitled to acquittal for the failure of the
 Police Officer Biong
State to produce the semen specimen, for one thing the
 Mike Estrada
ruling in Brady v. Maryland that he cites has long been
Four years after the massacre, in 1995, the NBI announced overtaken by the decision in Arizona v. Youngblood, where
that it had solved the crime. It presented star-witness Jessica the U.S, Supreme Court held that due process does not
M. Alfaro, one of its informers, who claimed that she require the State to preserve the semen specimen although it
witnessed the crime. (Saludo kaayo si Judge Tolentino sa might be useful to the accused unless the latter is able to
iya. Her testimony was believed.) She pointed to the show bad faith on the part of the prosecution or the police.
accused Hubert Jeffrey P. Webb, Antonio tony Boy Lejano,
For, another, when Webb raised the DNA issue, the rule
Artemio Dong Ventura, Michael A. Gatchalian, Hospicio
governing DNA evidence did not yet exist, the country did
Pyke Fernandez, Peter Estrada, Miguel Ging Rodriguez, and
not yet have the technology for conducting the test, and no
Joey Filart as the culprits. She also tagged accused police
Philippine precedent had as yet recognized its admissibility
officer, Gerardo Biong, as an accessory after the fact. Relying
as evidence. Consequently, the idea of keeping the specimen
primarily on Alfaro’s testimony, on August 10, 1995, the
secure even after the trial court rejected the motion for DNA
public prosecutors filed an information for rape with
testing did not come up. Indeed, neither Webb nor his co-
homicide against Webb, et.al.
accused brought up the matter of preserving the specimen
On January 4, 2000, after four (4) years of arduous hearings, in the meantime.
the trial court rendered judgment, finding all the accused
Parenthetically, after the trial court denied Webb’s
guilty as charged and imposing on Webb, Lejano,
application for DNA testing, he allowed the proceeding to
Gatchalian, Fernandez, Estrada, and Rodriguez the penalty
move on when he had on at least 2 occasions gone up to the

60
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

CA or the SC to challenge alleged arbitrary actions taken Alfaro identified Webb in her testimony as Carmela’s rapist
against him and the other accused. They raised the DNA and killer but serious questions had been raised about her
issue before the CA but merely as an error committed by the credibility. At the very least, there exists a possibility that
trial court in rendering its decision in the case. None of the Alfaro had lied. On the other hand, the semen specimen
accused filed a motion with the appeals court to have the taken from Carmela cannot possibly lie. It cannot be
DNA test done pending adjudication of their appeal. This, coached or allured by a promise of reward or financial
even when the SC had in the meantime passed the rules support. If, on examination, the DNA of the subject
allowing such test. Considering the accused’s lack of interest specimen does to belong to Webb, then he did not rape
in having such test done, the State cannot be deemed put on Carmela. It is that simple.
reasonable notice that it would be required to produce the
semen specimen at some future time. So murag nag change ang tune. Katong niagi, pregnancy is
not an element of rape. Over and over again. But now,
1:30:01 – 1:40:00 (Angel Deiparine) ginaingon, if it did not belonged to him, he did not rape
Carmela. It is that simple. Nagbago lang kalit ang Supreme
Court.
On April 27, 2010, the NBI informed the Court that it no Still, Webb is not entitled to acquittal for the failure of the
longer has custody of the specimen, the same having been State to produce the semen specimen at this late stage. For
turned over to the trial court. The trial court record shows, one thing, the ruling in Brady vs. Maryland that he cites has
however, that the specimen was not among the object long been overturned by the decision in Arizona vs.
evidence that the prosecution offered in evidence in the Youngblood that held that due process does not require the
case. Nawala ang semen specimen. Nobody knows where it State to preserve the semen specimen although it might be
is. It was not preserved. useful to the accused, unless, the latter is able to show bad
faith on the part of the prosecution or the police.
So the outcome prompted accused Webb to file an urgent
motion to acquit on the ground that the government’s For another, when Webb raised the DNA issue, the rule
failure to preserve such vital evidence has resulted in the governing DNA evidence did not yet exist, the country did
denial of his right to due process. not yet have the technology for conducting the test, and no
Beautiful argument: They were unable to preserve the vital Philippine precedent had as yet recognized its admissibility
as evidence. Consequently, the idea of keeping the specimen
piece of evidence, then it resulted in the denial of the right
to due process. secure even after the trial court rejected the motion for DNA
testing did not come up. Indeed, neither Webb nor his co-
ISSUE: Whether or not the Court should acquit him accused brought up the matter of preserving the specimen
outright, given the government’s failure to produce the in the meantime.
semen specimen that the NBI found on Carmela’s cadaver,
thus depriving him of evidence that would prove his Parenthetically, after the trial court denied Webb’s
innocence. application for DNA testing, he allowed the proceeding to
move on when he had on at least two occasions gone up to
Now, remember Webb here cited Brady vs. Maryland. the Court of Appeals or the Supreme Court to challenge
Brady and his companion Boblit were prosecuted for alleged arbitrary actions taken against him and the other
murder. Brady admitted his involvement in the murder but accused. They raised the DNA issue before the Court of
claimed that Boblit had done the actual killing. Mura bag Appeals but merely as an error committed by the trial court
accessory or accomplice ra ko. The prosecution withheld the in rendering its decision in the case. None of the accused
statement by Boblit confessing that he had committed the filed a motion with the appeals court to have the DNA test
act of killing himself. done pending adjudication of their appeal.

So what was withheld here? The written admission by So, the State cannot be deemed to be caught on reasonable
Boblit confessing that he had committed the act of killing notice that it would be required to produce the semen
himself, which means that Brady, wala siyay apil. Iyang specimen at some future time.
penalty should be lesser.
Tama ang Supreme Court, in my observation, you cannot
The Supreme Court of the United States held that expect us to preserve if at that time there was no still no
withholding exculpatory evidence violates due process, statutory obligation for us to preserve the samples. Tama
where the evidence is material to the guilt or punishment. ang giingon sa Supreme Court.
The Court determines that under Maryland State Law, the
But you have to take note, that right now, the governing
withheld evidence could not have exculpated the defendant
BUT WAS MATERIAL TO THE LEVEL OF PUNISHMENT. rule is Section 12, which mandates the preservation of DNA
Definitely, an accomplice is punished lesser than the actual Evidence in criminal cases for not less than a period of time
principal, diba, under PH penal laws. where a person is under trial for a commission of an offense,
or in case the accused is serving sentence, or until such time
Webb here claims that based on Brady vs. Maryland, he is as the accused has served his sentence.
entitled to outright acquittal on the ground of violation of
Now, let’s go back to the case itself. Humana ta sa DNA na
his right to due process given the State’s failure to produce
issue.
an Order of the court, either by negligence, to secure the
semen specimen. What was alarming to me was what the Supreme Court
said: “If it was not his semen, he could not have raped
Carmela. It is that simple” which is far-different from the
You have to imagine here that at that time Webb here is previous case.
very young. He actually spent most of his adulthood in jail.
So every gamay na butas imo makita, you question. Although in the Lejano case, mejo obiter ang dating niya.
It’s not case law. But you can always argue that the Supreme
Supreme Court said the medical evidence clearly Court sometime might change its tune.
established that Carmela was raped and, consistent with
this, semen specimen was found in her body. It is true that

61
EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Webb’s main defense was alibi. He was able to present very So in the dispositive portion by the SC, the court reverses
credible evidence that he was at the US at the time of the and sets aside the decision of the lower court and acquits
incident. Webb, Lejano, Gatchalian, Andres, etc. and further released
from detention unless they are confined for another lawful
What postulate you need to remember here: ALIBI IS AN cause. That took a long long time.
INHERENTLY WEAK DEFENSE. It is always discredited
by positive eye witness identification. So, if there is a clash So what’s happened after that? Lauro Vizconde, filed a
between positive and negative evidence, it is always motion for reconsideration of the Webb acquittal…but we
positive evidence that prevails, making alibi an inherently all know that once you are acquitted that cannot be reversed
weak defense. anymore. Otherwise there is double jeopardy.

To correlate, in the case of Andal, the Supreme Court always And he died after…suffering a series of heart attacks…he
ruled that eye witness identification cannot overrule DNA got his wished to be buried next to spouse and children…he
evidence. died without obtaining any measure of justice. No peace of
mind whatsoever after the brutal slaying of his family. The
The Supreme Court here, however, had the occasion to look rest of his life was spent seeking justice. Justice that was
back the supposed positive identification by the witness overturned after 15 years of Hubert Webb and his
Jessica Alfaro. According to the Supreme Court, the positive companions being in jail.
identification, to be acceptable, must meet at least two
criteria: 15 years…if it weren’t Webb and company…who did it?
Wala na. human na.
First, the positive identification of the offender must come
from a credible witness. She is credible who can be trusted What happened to Hubert Webb, he was already 42 years
to tell the truth, usually based on past experiences with her. old when he was released, he ran for councilor of Paranaque
Her word has, to one who knows her, its weight in gold. last May 2016 elections. What happened? Vandolph won…

There were a lot of inconsistencies in the testimony of Alfaro What about Jessica Alfaro? After the SC immortalized her
during trial. She tended to contradict herself. She had that lies, calling her a liar in jurisprudence…she fled to Canada
habit of going to the media, magpa interview to tell her side for no apparent reason. In March 2011, the Webb family
of the story. But the stories conflict, inconsistent kaayo filed a criminal case against her for false testimony. But you
ingon niya. know the latin maxim Paticur facinus in judicium fugium(?)
– He who flees from prosecution confesses his guilt.
Ingon niya wala nko nakita kay naa pa ko sa gawas. I did
not see the actual rape. But during trial, she said I was there. (Talks about the movie of life of Jessica Alfaro; kris Aquino;
I witnessed Hubert Webb mount Carmela and then raped Alice Dixon)
her. Unsay toohan nimo? Inconsistent man iya statements.
So that takes care of DNA evidence. The coverage of our
Second, the witness’ story of what she personally saw must first exam is only up to Rule 130 Section 1 including DNA
be believable, not inherently contrived. A witness who evidence. That’s the coverage of the 1st exam which would
testifies about something she never saw runs into be on August 25.
inconsistencies and makes bewildering claims.

1:40:01 – 1:49:02 (Alexander Abonado)

So inconsistent kaayo ang giingon niya. One time giingon


niya na wala nako nakita kay naa ra ko sa gawas. I did not
see the actual rape…but during trial she said, “I was there, I
witnessed Hubert mount Carmela and then raped her.”
Unsa tuohan nimo nga iconsistent man ang iyang
statements?

Second, the witness’ story of what she personally


witnessed/ saw must be believable not inherently
contrived. A witness who testifies about something she
never saw runs into inconsistencies and makes bewildering
claims.

One thing that the SC also said was the fact that Jessica
Alfaro here was actually an asset of the NBI. Then all of a
sudden when the NBI when the police no longer had any
means, Jessica Alfaro just comes forward and states that “I
was actually there.”

How convenient that the supposed eye witness was


somebody who happened to be an asset of the NBI.

Murag convenient kaayo no? It so happened that she ran the


same crowd, and she also happens to be an NBI agent/asset.

So as we already discussed about Alfaro and her testimony


fail to make the above requirement (?). If the whole case of
the prosecution is about Alfaro’s testimony then the
prosecution’s case should fail.

62