Professor: Justice Roberto Abad

Transcribers:
Marc Roby de Chavez (MARX)

Mon Cristhoper Pasia (MON)

 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.

EVID1 establish another proposition, there could be a chain

of evidence, what is factum probans can become a
Section 1. Evidence defined. — Evidence is the means, sanctioned by these factum probandum.
rules, of ascertaining in a judicial proceeding the truth respecting a matter of
fact.
Example: in an action for damages where somebody ships
What is evidence? rice, 100 cavans, it so happens that when the rice was
Evidence is the means of ascertaining what the truth delivered in the port of destination, the rice has been
is or presenting a matter of fact. damage. What evidence will you present to show that the
fault belong to the owner of the vessel during the voyage?
What is truth? That the rice before it was put in the vessel was in
Truth represents what is. good condition

Example: if somebody murdered and the victim what shot on How will you prove it?
his back by the accused, and he was charged of murdered The bill of lading, the proof of the shipping of the
qualified by treachery, how do u proved the truth that he was good, it shows that the rice was in good condition.
killed with treachery?
Present evidence What is the factum probandum?
The goods are in good condition and it was shipped.
What evidence will you present to prove that the victim is
killed with treachery? What is ur factum probans?
Testimonial evidence by the witness, “that I saw the The bill of lading
accused shot the victim on his back”
What other evidence u can present to prove that the owner
Evidence is the means to ascertain the truth to a matter of receive the good in good condition?
fact. Evidence that show that the good were in bad
condition upon discharge of the vessel. (factum
Could the court consider any kind of evidence that tends to probandum)
establish the truth respecting a matter of fact? The testimony of the person who deliver the good in
No, not all kinds of evidence. Evidence of matters damage condition (factum probans)
that the law or rules do not exclude.
So u present evidence to prove the fact that the goods were
What is Factum Probandum? delivered in good condition and also evidence to prove that
The proposition to be proved, the result that the the fact the goods arrived in damage condition. It is factum
evidence will produced probans, what is the proposition to be proved? It proved the
fact that the goods were damage in course of the voyage.
What is Factum Probans? Received by the owner in good condition, landed in bad
It is the evidentiary fact that will establish the condition, what did it proved?
factum probandum That the goods were damage in the course of the
voyage. What is factum probandum becomes factum
Example: probans. So if there was damage in the course of the
Supposing that there is a promissory note and not being paid voyage then what will be the legal conclusion?
the creditor, the note expires and there is a need to prove the There is liability on the part of the
indebtedness. shipowner.
Factum Probandum: that the debtor owes money
from the creditor or existence of a loan What is positive evidence?
When the witness affirms that a fact did or did not
Factum Probans: the promissory note occur

Why is it important to understand the distinction between E.G

factum probandum and factum probans? I did not eat my lunch
So that to be able to know the means as Positive evidence
distinguished to the end. Because it is possible that
when we you present evidence to establish a I ate my lunch
particular fact that fact could be also a means to Positive

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Positive evidence refers not only to something that happened
but also to a something that did not happen, as long as
someone knows for a fact that it or did not happen.
I saw the accused stabbed the complainant.
Positive
When is evidence negative?
When witness states that he did not see or know the
occurrence of a fact.
e.g
I don’t know if it rained this morning
Negative
Why it is positive testimony is given greater weight than
negative testimony?
Because negative evidence is that the witnesses
never recall anything about an event, while positive
evidence recalls something that had happen or did
not happen.
What is corroborative evidence?
An additional evidence of different kind and
character, tending to prove the same point
E.G
In a paternity suit to prove the child is really the child of a
defendant, what will be an evidence of paternity and possible
corroborative evidence of paternity?
Physical feature (big ears and a testimony of a
witness
What is cumulative evidence?
Additional evidence of the same kind bearing on the
same point
E.G
All evidences are direct testimony
How do we distinguish evidence from proof?
Evidence is the means to establish proof while proof
is the total effect of evidence. Whenever all of the
evidence is of such a character as to convince the
intellect and conscience of men of a fact, then that
fact is proved. Proof is that degree and quantity of
evidence that produces conviction
Section 2. Scope. — The rules of evidence shall be the same in all courts and
in all trials and hearings, except as otherwise provided by law or these rules.
Do the rules of evidence vary from court to court?
No, the same in all courts
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Is the rule of evidence in civil action the same with rule of
evidence in criminal action?
No, not all rules of evidence are the same, there are
some distinctions.
Example that a rule apply in civil cases but not in criminal
cases
Civil case- preponderance of evidence
Criminal Case- proof beyond of reasonable doubt
EVID2
Section 3. Admissibility of evidence. — Evidence is admissible when it is
relevant to the issue and is not excluded by the law of these rules.
If you are a lawyer for a party, will there be a right to present
any kind of evidence in court?
Only Relevant and Competent evidence. For
evidence to be admitted, it must meet 2 test, one it
must be relevant to the factual issues presented and
must be competent, in a sense that the rules do not
exclude such evidence.
What is this test of relevance?
The evidence has probative value. The evidence
should be able to prove something.
Whether or not the factual information tendered for
communication to the fact finder would be helpful in
the determination of the factual matter that is in
dispute between the parties.
If it is a question of a person being married, is the evidence
that he is a moral person relevant?
No, because it has no probative value with respect to
his being married or unmarried. The probative value
is whether you will your side of the issue. The person
presenting the evidence can prove his side of the
issue. If the evidence presented can prove the side
of the other party, it still relevant but not in his
favor. So long as the evidence will contribute to an
understanding of the issue, then it is relevant.
How will you know if the evidence has value with respect to a
particular issue? What method will you use?
Law on logic and common sense. Common sense is
base on human experience. What is usually
everybody knows is common sense
For example, f the issue is whether or not it rained, is evidence
that the ground is wet relevant to the issue?
Yes. If the ground is wet it probably rained. It is
reasonable to infer that if the ground is wet it
rained. It is not asking for scientific accurateness or
certainty but reasonableness. The reasonableness of
the inference.
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Supposing the evidence is that the woman entered the
building carrying an umbrella, is it relevant to the issue
whether or not it rained?
No. There is no reasonable inference that it rained.
Supposing the umbrella is wet?
Yes, there can be a reasonable inference that it
rained.
Is there an important distinction between relevant evidence
and material evidence?
Yes
Does the rules of court provide for material evidence and
relevant evidence?
No. Only relevant evidence
Is there an attempt to make a distinction?
Yes. Relevant if it has tendency to prove a factual
issue in the case while material directed to prove a
fact that is determined in the pleadings and
controlled by the substantive law the substantive
law.
Materiality looks to the relation between the propositions for
which the evidence is offered and the issues of the case.
What is “in issue” that is, within the range of the litigated
controversy, is determined mainly by the pleadings and
controlled by the substantive law.
What is the second test, apart from relevance?
Competent
Rule of Admissibility- The evidence is admissible if it is
relevant and excluded by the law
When is evidence competent?
Evidence is competent when it is not excluded by the
law
Who has the burden of showing whether the evidence is
competent or not? If a party objects to the competency of
evidence, who has the burden of proof, the party offering the
evidence or the party opposing?
The party opposing. Because the evidence is
assumed to be admissible. The assumption is always
good faith, innocence and admissible. The
assumption is always the positive side.
Does the confession of the accused given during custodial
investigation have probative value respecting his guilt?
Yes. It is relevant to the issue whether or not he is
guilty.
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But is that evidence admissible?
No.
Is the confession of the accused absolutely inadmissible at all
times?
Not absolutely inadmissible. Miranda rights. The
accused must be informed of his rights during
investigation (right to remain silent, right to a
competent and independent counsel...) and the
accused can waive such rights, provided it is in
writing and in the presence of the counsel.
Can a piece of evidence have probative value on several
purposes yet its admissible only with respect to some of that
purposes? Evidence is admissible for several purposes but it is
admissible only for certain purposes?
Yes, the rule of Multiple Admissibility of evidence:
evidence will be received if it satisfies all the
requirements prescribed by law in order that it may
be admissible for the purpose for which it is
presented, even if it does not satisfy the other
requisites for its admissibility for other purposes.
Example:
An accused confession may not be competent as
against his co-accused, being hearsay as to the
latter, or to prove conspiracy between them without
the conspiracy being established by the other
evidence, the confession of the accused was,
nevertheless, admissible as evidence of the
declarant’s own guilt. The evidence (confession) is
for the purpose to prove the guilt of the accused but
not for the purpose of proving the guilt of the other
If the evidence is admissible, does it follow that it is also
believable?
No. Evidence can be admissible but not believable.
Credibility (believability) depends on the evaluation
given to the evidence by court in accordance with
the guidelines provided in Rule 133 of the rules of
court and the doctrines laid down by the Supreme
Court.
To prove malice in a libel suit, the victim of libel testified that
her friend heard the offender say that she wanted to
embarass the complainant. Is this admissible evidence? Is that
not a hearsay evidence?
No, it is not admissible. That is hearsay evidence.
Curative Admisibility- improper evidence admitted on one
side without objection, does not give the other side the right
to introduce in reply the same kind of evidence if objected to;
however, when a plain and unfair prejudice would otherwise
inure to the opponent, the court may permit him to use a
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curative counter-evidence to contradict the improper
evidence presented. And whenever hearsay evidence is
erroneously admitted, the adverse party may be allowed to
give evidence of a statement or other conduct by the
declarant inconsistent with the declaration though he had no
opportunity to deny or explain it.
Supposing you did not object to evidence which is hearsay, are
you entitled to present evidence to rebut the testimony which
is hearsay?
If you did not object to the admissibility of such
evidence, it will be admitted in the records, it will be
considered waived. Hearsay evidence is not
admissible but if there is no objection it may be
admitted.
Can you rebut hearsay evidence with another hearsay
evidence?
No. Unless there will be a grave injustice committed
if the hearsay evidence is not allowed to be
disputed.
What is the rule on conditional admissibilty?
Evidence may be admitted provided that
subsequently it be connected with other evidence.
A fact offered in evidence may appear to be
immaterial unless it is connected with other facts to
be subsequently proved.
Supposing at the time the evidence is presented the evidence
that will connect is not yet of record, can you allow that
evidence, if you need, for example, prerequisite evidence for
the present evidence, to be admitted?
Yes, it could be still be put into records provided that
the parties can present the connecting evidence.
For example, in a drug case, can you present the testimony of
the chemist that the substance he examined is a prohibited
drugs, when there is no testimony that the prohibited drugs
that he examined was the one seized from the accused? Can
you present the testimony of the chemist first?
Yes, it can be admitted conditionally. The testimony
of the chemist may be admitted provided that the
police officers would later on identify the substance
as the one seized from the victim. The rules allow
admission of evidence which may be irrelevant now
provided that it will be connected by subsequent
evidence.
Supposing later on the party who made the conditional
presentation failed to present the connecting evidence?
The evidence may be stricken out of the records
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Who has the burden of enforcing the conditional quality of
the evidence?
The party who objected.
During the early years of our jurisprudence, when evidence
obtained by threat or intimidation is admissible in the SC
provided the testimony or evidence is true. Illegally obtained
evidence is admissible if it is true. That was the old rule. It
was already overtaken by the case of (plaintiff vs defendant)
and later on by the Constitution.
Is that still correct that illegally obtained evidence if true is
admissible?
No. According to the exclusionary rule, if the
accused’s constitutional right is violated the
evidence would be suppressed. There are several of
those rights.
Is the right during custodial investigation available after the
accused has already been charged in court and trial is
ongoing?
They are still available. In custodial investigation
presupposes that the accused is still being
investigated. The SC has said that even if a charge
has already been filed the police officers cannot get
evidence from him while he is in jail. The one that is
violated is that the court has already acquired
jurisdiction over the accused, the custody over him.
There is no business interrogating him without
permission of the court. Once the accused is
charged, only the court can permit ____ as a witness
because he has the right to silence and the right to
remain silent of the accused is absolute, even the
court cannot compel him to testify in a case even if
he will not testify against himself but against his co-
accused only. The accused has a right not to testify
to anything, he can even refuse to give his name. It is
the burden of the prosecution to prove what his
name is and everything else.
What is the doctrine of the fruit of the poisonous tree?
Evidence acquired through violation of the
constitutional right shall be suppressed.
The fruit of the poisonous tree posits that all evidence (the
fruit) derived from an illegal search (poisonous tree) must be
suppressed, whether it was obtained directly through the
illegal search itself, or indirectly using information obtained in
the illegal search. If the tree is poisonous, the fruits are
poisonous also.
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Supposing you had a conversation with somebody,
incriminatory statements and you record it in your cell phone,
is that conversation recorded in the cell phone admissible in
evidence?
No, because it is a violation of the anti-wiretapping
law.
If there is no court order?
It is still admissible if there is mutual consent. What
is prohibited is recording of conversations without
the knowledge of the parties involved.
When you are using a public payphone, is that protected
conversation?
It is a question of constitutional law. The telephone
booth is in a public place but the conversation is
private.
What should the court favor in case of doubt regarding
whether a particular evidence is admissible or inadmissible?
In case of doubt the court should favor admissibility.
Why? What will be the consequences of denying admission of
evidence?
It will not appear on the records. The appellate
court will have no basis of determining whether it is
admissible or not, because if it is admissible it will be
remanded for trial. So, the admission of evidence in
cased of doubt really is for the purpose of enabling
the appellate court to review the correctness of the
ruling of the lower court
Section 4. Relevancy; collateral matters. — Evidence must 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 reasonable degree to establish the probability or improbability
of the fact in issue
When is evidence relevant to the issue?
The evidence must have such relation to the issue.
The relationship between the issue and the
evidence, so that the evidence tends to induce belief
in the existence or the non-existence of the facts in
issue.
It is said that the first aspect of relevancy is connectedness. It
was said that it must be related to the fact in issue. There
must be connection between the evidence and the facts in
issue.
In an action for money where the defendant told that he did
not execute the promissory note that shows his debt can the
defendant later on present evidence that the plaintiff has
already forgiven his debt? Was that a valid defense, the debt
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was already forgiven? Does that bind the creditor when he
forgives the debt?
It is inadmissible. Because the issue is whether or
not he signed the promissory note, so the evidence
that pardon or forgiveness of debt is not relevant.
The second aspect of relevancy is that the evidence has
probative value. Give an example of probative value of
evidence.
In a case of robbery, the complainant said that the
robber took a bag from his store, the robber using a
knife to open the lock. The evidence with probative
value that can be presented is, for example, there is
a cctv camera, the recording of the event of taking
the bag can be presented.
Can the court exclude evidence, even if the evidence is
relevant and competent?
Yes, if the admission of the evidence will confuse the
issue (American doctrine, not applicable in our
jurisdiction).
In our jurisdiction, if the evidence is relevant and
competent there is no reason for the judge not to
admit them.
Is the issue of relevance of evidence subject to appeal?
General rule is it is not reviewable.
What is direct evidence?
Direct evidence is evidence which proves the fact in
issue without any aid of inference. By the nature of
the evidence it proves the point already.
Give an example of direct evidence.
In a case of murder, the witness testified that he saw
the accused stabbed the victim in the heart, that is
direct evidence.
What is circumstantial or collateral evidence?
Evidence which if taken collectively would give rise
to some conclusion or inference.
Circumstantial Evidence- Matters other than the facts in
issue and which are offered as a basis for inference as to the
existence or non-existence of the facts in issue.
Give an example.
In a case of rape, A alleged that she was raped by X
at around 9 pm on Monday, the prior and
subsequent acts of the accused, for example the
testimony of the co-workers that X left the
workplace during such time and someone saw the
accused went to the house of the victim.
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May evidence of collateral matters be allowed?
Yes, if it has reasonable connection to the issue and
the evidence tends to induce belief in the probability
or the non-probability of the facts in issue.
Collateral matters can be divided into antecedent,
concomitant or subsequent. What do you mean by
antecedent circumstantial evidence? For example, the victim
is seen entering the room where the robbery is committed.
It happens before the crime is committed.
What else would be considered as antecedent evidence.
Motive, is that antecedent?
Yes, it is antecedent. It happens before the action.
Is everything you do prompted by motive? Do people act out
of motive?
As a rule, people act out of motive, except when you
act without reason.
If that is the case, is it necessary to present evidence of motive
to every act of wrongdoing that the complainant is alleging?
Is it indispensable?
No, it is not always necessary.
But are there crimes that require to prove motive, as an
element of the crime?
In theft, there must be intent to gain. In libel, you
have to prove malicious intent.
What do you understand by concomitant circumstantial
evidence?
It proves something that happened at the precise
time the event in issue was taking place or at the
time of the commission of the crime.
Give an example.
In a murder case, the gun is concomitant evidence
because it is present at the time the crime was
committed. The gloves found at the scene of the
crime are also concomitant evidence.
Opportunity to commit the crime, is that concomitant?
It is concomitant.
Is evidence of exclusive opportunity essential?
No. It is enough that the accused has the
opportunity to commit the crime.
EVID3
Collateral evidence are divided into 3 kinds
• Antecedent Circumstances
• Concomitant Circumstances
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• Subsequent Circumstances
Any given event have an antecedent, concomitant and
subsequent circumstance
E.G
U lost ur celfone
• Antecedent Circumstance- that u have a celfone, u
are carrying it, it was with u
• Concomitant Circumstance- that u are in the
classroom when u lost it; who were present at the
time the celfone was lost
• Subsequent Circumstance- evidence that the celfone
is in the hands of somebody else.
In the absence of witnesses, these can be proved by
establishing these supporting facts that occurred before,
during and after an event. These are to extend to the point of
a happening of an event, the concomitant and subsequent
circumstances are relevant evidence which tends to prove a
fact in issue.
Concomitant Collateral facts- the facts exists at the time the
fact in issue took place.
Most common examples are:
• Opportunity- if the accused was the only one who
had the opportunity to do the act charged, such
circumstance may be taken against him.
• Incompatibility-
Is evidence of an exclusive opportunity essential to prove set
of facts that were raised?
No, exclusive opportunity is not essential, it is
enough that the person charged had an opportunity
to do the act, if such circumstance, added to the
chain of other circumstances, leads to the inference
that he is really the author of such act.
What is needed for opportunity to be given weight on the
determination of dispute of ____, what is needed for
conviction?
Just one circumstantial evidence probably will not
result of the conviction of the accused he must have
not only opportunity but also he has motive
When can concomitant collateral facts that is incompatible in
proving of an act that is interpreted as useful evidence, when
is incompatible collateral fact useful?
When the concomitant circumstances are
incompatible with the doing of an act by a person,
they may be proved to show that such person is not
the author of the act.
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Is an alibi a defense?
An alibi is one of the weakest defenses that can be
resorted to by an accused
Why is it alibi a weak defense?
Alibi is inherently weak because it can be easily
fabricated. It is evidence negative in nature and self-
serving.
Can a weak alibi be taken as evidence against the person
asserting such alibi?
No, because the burden of proof of establishing the
guilt of the accused is in the prosecution. What will
be taken against the accused is evidence that will
prove that he committed the crime but not the fact
that the accused deny the allegations by saying that
he was in a different place when the crime was
committed. It will not be taken as good defense but
it will not be taken as evidence against the accused.
To establish an alibi, a defendant must not only show that he
was present at some other place about the time of the
alleged crime, but also that he was at such other place for so
long a time that it was impossible for him to have been at the
place where the crime was committed, either before or after
the time he was at such other place
When can subsequent collateral facts show the truth or falsity
of the facts or controversy?
The subsequent collateral facts points to the
happening of the fact issue or who is not happening.
Example of an event that may happen or might not happen
• Flight- the law is entirely well settled that the flight
of the accused is competent evidence against his as
having a tendency to establish his guilt. Thus flight is
evidence guilt and a guilty conscience. Flight, when
unexplained, is a circumstance from which an
inference of guilt may be drawn. Flight is not an
evidence of guilt because when adequately
explained, flight cannot be attributed as due to one’s
consciousness of guilt.
• Non-flight- while flight may be evidence of guilt,
there is no law or principle holding that non-flight by
itself, is proof, let alone conclusive proof of
innocence.
Examples of subsequent collateral evidence
• Concealment
• Nervousness
• Despair
• Fingerprint
• Footprint
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• Articles left by accused
• Resemblance
• Bloodstains
• Offer of compromise
• Possession of stolen articles or counterfeit ones
RULE 129
Section 1. Judicial notice, when mandatory. — A court shall take judicial
notice, without the introduction of evidence, of the existence and territorial
extent of states, their political history, forms of government and symbols of
nationality, the law of nations, the admiralty and maritime courts of the
world and their seals, the political constitution and history of the Philippines,
the official acts of legislative, executive and judicial departments of the
Philippines, the laws of nature, the measure of time, and the geographical
divisions.
Can a trial judge who investigate a case on his own, consider
facts that are uncovered although not formally disclosed
during the hearing?
No, the court shall consider no evidence which has
not been formally offered.
Why does court shall consider no evidence which has not been
formally offered?
Because the court will not be able to test the
correctness of the accusation made by the judge
because it was not done in the course of the trial.
Do u have to present evidence to prove all facts and
circumstances that happen in relation to the commission of a
crime?
No, there are facts that need not to be proved.
What are the matters that concerns about a crime that is not
needed to be prove?
Those matters that the court may take judicial notice
of. Like jurisdiction.
What is judicial notice?
Judicial Notice is the cognizance of certain facts
which judges may properly take and act on without
proof they are already known to him.
What are those matters that a court may take judicial notice
mandatorily?
• The existence and territorial extent of states,
• Their political history,
• Forms of government and symbols of nationality,
• The law of nations,
• The admiralty and maritime courts of the world and
their seals,
• The political constitution and history of the
Philippines,
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• The official acts of legislative, executive and judicial
departments of the Philippines,
• The laws of nature,
• The measure of time, and
• The geographical divisions.
Why is it that these facts are deemed proven even if there is
no evidence adduced?
Because it is a sound rule and judicial notice is based
upon convenience, expediency and common
knowledge
Can a judge refused to take judicial notice of a fact that is not
within his knowledge?
No, because if it is something under the law that can
be taken judicial notice of and no evidence is
needed. If it is a matter of judicial notice, the court
has no discretion to say that he is unaware of it
because he is presumed to know.
A judge is not justified in refusing to take judicial
notice of a fact which is not within his knowledge or
memory if the fact in question is one which is the
proper subject of judicial cognizance.
If the court is unaware that a matter is a subject of
judicial notice, the court has to inform itself.
What are adjudicative Facts?
Adjudicative facts are simply the facts of the
particular case that has relevance to the issue which
are determinative of the outcome of litigation
Example of judicial noticed adjudicative facts
Bankruptcy-recession
What are legislative facts?
Legislative Facts are those which have relevance to
legal reasoning and the lawmaking process whether
in the formulation of a legal principle or ruling of a
judge or court in enactment of a legislative body.
Facts that are relating to the law that applies to the
case.
Is the taking of judicial notice mandatory?
On those provided for by the Rules, specifically RULE
129 section1 which compels the court to take
judicial notice mandatorily
Can a matter be a subject of judicial notice if it is not actually
known to the judge?
May the court take judicial notice of facts of foreign
government?
While the courts take judicial notice of the existence
of foreign governments, the rule is subject to the
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qualification that it relates only to such governments
as have been recognize by the home government.
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
their judicial functions.
When is judicial notice merely discretionary upon a court?
• In matters which are of public knowledge, or
• are capable to unquestionable demonstration, or
• ought to be known to judges because of their judicial
functions.
What is the test for taking judicial notice?
The test is whether the fact involved is so
notoriously known as to make it proper to assume
its existence without a proof.
Must everybody have knowledge of that fact before a court
must take judicial notice?
No, it not necessary that everybody know such fact
How can it be notoriously known?
The requirement is that it must be known to most people
who are familiar with such matter.
The requirement of notoriety or common knowledge of the
general public must give way to less dogmatic requirements
where the facts in question is well known and generally
accepted in specialized areas among those members of the
public who deal with such matters.
EVID4
We said that the court must take judicial notice on foreign
laws, how are foreign laws be presented for the court to know
about the foreign law?
Written law may be evidenced by an official
publication thereof or by a copy attested by the
officer having legal custody of the record, or his
deputy, and accompanied with certificate that such
officer has custody.
Can the court take judicial notice of opinions of ____ found in
textbooks?
Yes, the court may take judicial notice of it, there is
no need to present the book
How about rules and regulations issued by administrative
agencies? Are they entitled to judicial notice?
Yes
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How will the court be informed of the administrative rules and
regulations?
Administrative regulations are as a general rule
judicially noticed because although they are not
actually notorious, yet they would be capable of
unquestionable demonstration.
Official acts, proclamations, regulations and reports
Courts have recognized that certain executive
proclamations, regulations of bureaus and
departments, and reports of public officers are of
such general notoriety that they may judicially
noticed.
How about local ordinances, are the courts bound to take
judicial notice of it?
Municipal courts may and should take judicial notice
of municipal ordinances in force in which they sit.
The court will take judicial notice of its records and of the
facts that the record establishes. For the purpose of
determining a probable cause for the issuance of a warrant of
arrest, the court may take judicial notice of the affidavits.
But can the court consider an affidavit attach in the records
for the purpose of deciding the case?
No
Affidavits are not really evidence but it can be formally
offered as evidence for the purposes of the trial or may be a
subject of judicial inquiry. But if the affidavit was not
presented in court, then such affidavit is hearsay
For affidavits that are part of the records of the case, as a
rule, for the purposes of trying the case in the merits cannot
be considered as evidence unless it is formally offered.
Can the court take judicial notice of affidavits that are
attached in the records of other cases that are pending before
other courts?
No, because the court cannot consider evidence that
is not formally offered in the course of the
proceeding and that is evidence presented in
another case, how the court can take judicial notice
of the records of another case, they have no right
Exceptions that the Courts may take judicial notice of the
contents of the records of other cases before it
• Without objection or by agreement of the parties it
may be read into records or admitted as part of the
record of the case then pending
• The other proceeding or causes are so closely
interwoven or interdependent
9
• Where the interests of the public in ascertaining the
truth are of paramount importance
• In cases seeking to determine what is reasonable
exercise of discretion or whether or not a previous
ruling applicable in a case under consideration
What if the parties object for taking judicial notice of records
of other cases?
No, it can only be with consent of the parties
The exceptions are applicable only when, in the absence of
objection, with the knowledge of the opposing party. Or at
the request or with consent of the parties, the case is clearly
referred to or the original or part of the records of the case
are actually withdrawn from the archives and admitted as
part of the record of the case then pending
How can the court access the materials of matter that are
Capable to unquestionable demonstration?
Materials of common use, like publications, websites
etc.
Natural phenomenon
Newspapers
Conversion rates, science, laws of physics
By textbooks
History
Geographical facts
Customs
To take judicial notice of a custom it must be
generally known and established and uniformly
acted upon so as to raise a fair inference that it was
known to both contracting parties and that they
acted upon it.
Section 3. Judicial notice, when hearing necessary. — During the trial, the
court, on its own initiative, or on request of a party, may announce its
intention to take judicial notice of any matter and allow the parties to be
heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its
own initiative or on request of a party, may take judicial notice of any matter
and allow the parties to be heard thereon if such matter is decisive of a
material issue in the case.
A hearing may be necessary, not for the presentation of
evidence, but to afford the parties reasonable opportunity to
present information relevant to the propriety of taking such
judicial notice or to the tenor of the matter to be noticed.
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Can the court of appeals or Supreme Court review the trial
court’s taking of judicial notice of a certain facts?
Yes
Can the court receive evidence to study the matter it should
take judicial notice of? For example, matters that are capable
to unquestionable demonstration, can the court receive
evidence from the parties for that demonstration?
No, because if there is a need for evidence then such
matter is incapable of judicial notice. Judicial notice
and presentation notice are incompatible.
Section 4. Judicial admissions. — An admission, verbal or written, made by
the party in the course of the proceedings in the same case, does not require
proof. The admission may be contradicted only by showing that it was made
through palpable mistake or that no such admission was made.
What admissions by the parties that does not require proof?
Judicial admissions- an admission made in the
course of the proceedings in the same case, verbal,
or written by a party accepting for the purposes of
the suit the truth of some alleged fact, which said
party cannot thereafter disapprove
Why is proof no longer required in judicial admissions?
Because there is no point to prove something that is
already admitted
What are written judicial admissions that are made in the
course of the proceeding?
Pleadings filed in court
When a witness testifies that plaintiff stole something, is that
judicial admission?
No, because a testimony is already a proof or
evidence. In judicial admissions there no need for a
proof, testimony is a proof not judicial admission.
Judicial admission dispenses proof.
May a matter judicially admitted be contradicted by evidence
in the contrary?
It cannot because it is conclusive against the pleader.
What are the exceptions?
• Admissions made through Palpable Mistake
• There was no such admissions made
Stipulations of facts during the pre-trail conference, are they
judicial admissions?
Yes
How about depositions taken by a party?
Depositions are not judicial admissions because are
not part of the proceedings but only modes of
discovery, they do not become part of the
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proceeding unless u offer it as evidence. If it is
accepted, then the court may take it as evidence but
not as judicial admissions
How about an answer for a request for admission, is that
judicial admission?
Yes, request for admission is judicial admission
because the court already considers such answers
for the purpose of deciding the case without an
introduction of evidence.
Does a party have to offer evidence that the other party made
judicial admission in the course of the proceeding?
No, judicial admissions dispenses proof, it becomes
part of the records of the case.
Is the judicial admission of the defendant binding on the
plaintiff?
No, a party is bound only by his own admission, but
he is not bound by an admission by his opponent.
EVID5
What will be taken by the party, for example the defendant
admitting that he owes the plaintiff money; he admits it to a
friend and another one is an admission made in their answer
that he owes the money. What is the difference between
those two? Are they both judicial admission?
No
Which one is judicial admission?
That the plaintiff owes him money.
And what is the other admission?
The one given to a friend; the admission made to a
friend. In that case they are extra-judicial admission.
Are both admission proper evidence?
Yes.
Can both of it be presented as proper evidence?
They can both the admission to a friend and the
admission in the pleading are admissible as
evidence.
But what’s the difference if both are admissible?
The admission to a friend should be proven in court.
How about the admission in the answer (pleading)?
It is deemed proven.
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
Do you have to offer it?
No, you can just sign it. It is just given already. You
don’t have to go anything more. You can cite it as an
evidence, the admission in a pleading.
Supposing that the plaintiff filed a complaint and make
statement in the complaint, are those statements in the
complaint regarded as admission?
Yes, they are judicial admission, uncontestable in a
way and no longer subject to a proof.
Supposing he amends his answer with leave of court, and the
court admits his amended answer and the court approve the
filing of the amended answer. What is the effect of the new
answer if any to the previous answer? What is the effect of
the amended answer to the new amended answer which is
different than the original answer?
Those allegations which were not included in the
amended answer are treated as admission. They are
treated as admission but admitted as extrajudicial
admission.
But there’s an opinion by I think justice Feria that the new
rules in the admission and the original, that the admission
made in the original answer can be considered as admission
made in the course of the proceeding and therefore it is
equally binding on the plaintiff. Do you agree with that? The
admission in the original answer is also considered as
subsisting judicial admission? The original answer is
admission made in the course of judicial proceeding.
No, because if the court approved the amendment
of the original answer, then it is the new answer that
constitutes the answer of record and the old answer
is superseded and no longer part of the answer
because it can be regarded as mere extrajudicial
admission. The court allowed the change; what is
the sense in the court allowing the change in the
answer and the answer remains binding on the
defendant. It doesn’t make sense.
The allegations in the pleading are judicial admission. What if
in the allegation in the complaint that the defendant failed to
deny that may be considered as binding on the defendant or
an admission brought?
The failure of the party to specifically deny the
allegations.
Are admissions that the defendant made, in a separate case,
in his pleading filed be admissible as judicial admission in
another case? Does it constitute judicial admission?
No, it is not because the admission made is in
another proceeding so it cannot be binding from
that other case.
11
But can you say it regarded as extrajudicial admission and the
court can entertain provided it is properly offered a proof?
Yes, so what we can do is to subpoena the record of
the other case, present the answer that he
presented when taken after filing with his signature
and maybe an object evidence after filing can be
presented provided it is relevant.
Is the client bound by the admission that his lawyer made in
the course of proceeding where the lawyer represents the
client?
Yes, if the lawyer is acting in his professional capacity
then the client is bound by the act of his lawyer. The
lawyer is deemed an authorize spokesman or agent
of the client, who speaks for with authority of his
client.
Are stipulations of facts entered into by the litigant before
the trial, for example, let say that I pointed to the witness and
Cross examiner: “how far was the person from you on whom
you identified?”
Witness: “He was from here up the last chair there”
other party says: “I would like to ask for a stipulation that it is
about 10 meters between the witness and the person that he
saw based on what he said the facts stipulated of the witness
based on what he said and what he saw and the other party
said “I stipulate.” Is that judicial admission that is binding on
the parties?
Yes, because the stipulations between the parties,
they are conclusive between the parties. (Sir: yes,
but it’s not a written admission or formal admission
found in the pleading)
Why will you consider that stipulation binding on the parties
when it is only the lawyer who stipulated? But maybe the
client does not agree, maybe he said that don’t tell anything
that’s not there.
It is presumed that the lawyer should act on behalf
of his client the stipulations made by the lawyer and
the client. Well binding on the client.
But at all times? Can the client ask that for a reconsideration
something like that? Or not to admit it as judicial admission
or not to consider it as judicial admission?
Well he can ask for later on have those admissions
for recalled on the ground of palpable mistake the
lawyer near sighted. So and the fact if you measure
it by meters and it is only 7meters, the witness say
the fact stated after the trial I got a measuring stick
and it is not 7meters and it is 10meters it is a
palpable mistake. But ordinarily it is binding on the
client on the part of him.
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
Supposing the one party applies for a writ of preliminary
attachment and part of the application on the preliminary
attachment is usually an affidavit of merit. An affidavit telling
that he could claim with the application for attachment one
covered by the ground for writ of preliminary attachment not
in the amount in the excess of the funds considering also with
the counterclaim. There is something that the value of the
property that has been invented by the defendant the amount
stated there. Can the plaintiff who was not the one who
prepared the affidavit but merely made it part of his
complaint be bound by the contents of the affidavit that the
affidavits will constitute judicial admissions of the plaintiff.
Yes
Why? it is not his statement but a statement of another
person?
Well, if he adopts it and thirdly he must go to
convince the court to give weight to the affidavit and
grant the application for writ of attachment, so he is
bound by that.
The plea of guilty in a criminal case a form of judicial
admission?
Yes, a plea of guilty is a judicial admission admitting
all the material allegations of the criminal
information including the attendant circumstances
qualifying/aggravating provided it is made
voluntarily and with full knowledge of the
consequences and meaning of his act and with a
clear understanding of the precise nature of the
crime charged. It is actually the plea to the
information that tender an issue. If you plea not
guilty and you tender an issue on the allegations of
the information but if you plea guilty you admit the
contents of the information including the charge in
information. In a way it is akin to a pleading to an
admission in an answer in the criminal proceeding.
Now, are the pre-trial agreement in a pleading between
prosecution and defense be regarded as judicial admission?
It will be regarded as judicial admission provided
that it is signed by the counsel of the accused and
the accused himself.
No agreement or admission made or entered during the pre-
trial conference in a criminal shall be used in evidenced
against the accused unless reduced into writing and signed by
him and his counsel.
Is the stipulation on how the accused kicked his victim
(parang demonstration) the witness demonstrated on how
the accused kicked the victim while he was on the floor, is
that binding on the defendant, if it is the prosecutor that
12
records the manner by which the accused kicked the victim as
demonstrated by the witness?
The defendant may refuse to admit that admission;
he can object or disagree
Supposing he does not object or does not do anything, he let it
pass.
It is admitted by the court as judicial admission.
How about the accused or the defendant?
There can also be admission by failing of to object to
a stipulation like that.
Are the stipulations between the prosecutor and the counsel
for the accused because one witness did not show up to the
police officer and you want the case to be finished, the
prosecutor just ask the counsel for the accused who is willing
to stipulate that if the witness appear, he’ll testify in the same
manner as the owner of the van because they were
companion in the event happened. Is that forcing the lawyer
for the accused on that verbal proposal that “yes I will agree
that if he came today he would testify on the same manner as
between his witness, between each one in the event
happened.”
Yes. He waives the right to cross examine and it is
binding.
The admission made by the accused that witnesses if present
would testify to certain facts stated in the affidavit of the
prosecution, in such a case, it is deemed a waiver of the right
to confrontation (right to cross-examine)
Is the testimony of the accused in court regarded as judicial
admission?
No, because testimony is evidence. That is the
reason why you will present a testimony is to
support a proposition. so why will you consider it as
admission, if it is an admission you don’t have to
present it. The testimony is evidence; if you present
a testimony in court then you will offering proof. So
they are contradictory in terms. Testimony and
judicial admission is contradictory because judicial
admission dispenses testimony. So testimony is in
the nature of evidence.
Section 1. Object as evidence. — Objects as evidence are those addressed to
the senses of the court. When an object is relevant to the fact in issue, it may
be exhibited to, examined or viewed by the court.
What are object as evidence?
Objects as evidence are those addressed to the
senses of the court.
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
What are those senses of the court? Does the court have
senses?
It’s the judge. Those that are addressed to the
senses of the judge, because the court which is a
juridical body it has no senses, actually it is the
senses of the presiding judge.
And what are the senses of this presiding judge?
Sense of sight,hear,smell,taste and touch. So object
evidence are evidence that appear to the senses, the
5 senses.
In a crime of murder, what will be an example of an object
evidence?
Weapon used by the accused.
Supposing the counsel for the accused after the witness for
prosecution had testified, the counsel of the prosecution bring
out the knife and offered to court that it was the knife found
in body of the victim and it was offered to prove the crime. Is
that admissible?
No, because it must be authenticated.
If you offered the knife, how will you prove that the knife is
the knife that was used in the crime? So how will you
authenticate now that it is the knife used in the crime?
You offer testimony connecting the knife at the
crime where one of them will be testimony that he
saw the accused stab the victim with that knife. The
knife presented in court. The knife that will lead to
that appearance, that shape. So by identifying it you
authenticate as the object it as it claims to be. The
knife used for the crime. That’s what authentication
means.
Authentication may come in different forms, some of them in
the form of completion; some of them implead it in
authentication.
For example if you received a letter from the bank (credit
card company) asking you to pay and later on there is an
error from the account and you want to testify then you can
present the statement, the credit card statement, the
monthly statement. How are you going to authenticate it that
it is signed by the officer of that credit card company, d mo
nga alam yung signature nya eh. How will you prove it? Well
you can prove it as by saying that it is the statement you
received by mail and thats it. You prove it what it was a
document you received by mail that is also sufficient
authentication although that is a documentary evidence.
There is this case where person charged with rape and the
medical examiner testified and he said that he found no
external injury in the complainant’s body but the prosecution
13
report it that there was rape even if was no external injury
because because the prosecution presented blood torn dress
and the blood stain on the underwear of the victim. Which do
you think is, are they compatible evidence? The evidence
made by the medical examiner that there was no external
injury and the evidence that torn dress and blood stain
underwear to the victim? Is that possible? Well usually when
you say external evidence usually the pleading is sometimes I
forgot the but if there’s no wound in the woman’s sensitive
part how could that be impleaded. how could the blood on
the underwear relate it if there’s no external injury on the
victim? Well what is the blood panty, it is the object evidence.
How about the testimony of that medical examiner is that
object evidence also or testimonial evidence. the testimony
on what he witness, that is testimonial evidence. The witness
of what he saw by his eyes by examination.
Now another case in People v. javellano where there’s only 1
witness for the prosecution on the commission of a crime
where the victim was stabbed by one of the accused using a
fork. the SC held that the testimony could not be discredited
if it is of it is corroborated by the accused extrajudicial
admission not the testimony in court, extrajudicial admission
that he stabbed the victim with a fork. if the stabbing is used
by a fork well hindi stab wound well what will appear will be
the 3 point of the fork not the stab wound, so it is object
evidence. The fork will be object evidence.
So what are the requirements for the admissibility of the
evidence?
• it must be authenticated
• it must be Relevant and
• it must be Competent.
Competent, when it is not excluded by the rules. Relevant
when it has rational connection to the issue and it has to be
authenticated.
If object evidence is not authenticated, what will be technical
ground for objecting it?
So if evidence is not authenticated/object evidence
is not authenticated you can object it on the ground
that it is irrelevant. Its relevancy has not been
proved. Its relevance to the issue before the court
has not been proved by authentication.
But can an object evidence be nonetheless excluded for being
irrelevant although it may have been authenticated properly
by a witness?
An evidence maybe irrelevant if is authenticated by
witness provided that such evidence is not
connected with the issue.
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Example
When the accused is charged with murder and the evidence
presented is for example watch, it is irrelevant because it has
no connection with the accused.
Very often, the authenticity of an object evidence can’t be
subject by one testimony. for example, the person is charged
by illegal possession of prohibited drugs it was seen by the
policeman during when he was sniffing taken from him, go to
the laboratory then after to the laboratory go to fiscal’s office
after to fiscal’s office go to the court and then the court, it is
now presented in court. How do you establish the authenticity
of the sachet of drug? That it is the one seized from the
accused?
He can establish that the evidence was handled by
forensic officer.
So how was he going to prove in that case? Who will be your
witness? Call the testimony of the investigating officer the
one where the accused is brought when he was still
investigated at the office of the investigator. The arresting
officer, what will he testify? How? That the arresting officer is
not substituted during the procedure. Who will going to tell
that eh yung ngcollect ng chemical eh yung chemist? What
does this difference dun? Now In court andyan na, judge how
will you use the sachet drug what relation does this have to
the sachet drug that you have, you found in possession of the
accused.
What will be the answer of the police officer? What is the
relation of the sachet of powder to the sachet of drug that
you tell the chief from the definition of the accused. Are they
related? well that is the same sachet that came of drug that I
received from the accused when I arrested him, so next
question is to authenticate it, and that’s the one. Why will
you say that it’s the one? Then you can look at the outside of
the sachet I have my initial in pentel pen on the sachet with
my initials. Where is that initial? Initial after I got it from the
accused. And where did you bring the sachet? “Well I brought
that to the laboratory.” And in what condition did you take
that condition? “Well in the condition that it is now.” You said
that it was nabawasan noh somebody eh ginamit sa
laboratory. So what else is that enough? And you also have
to prove that the content of that sachet that was seized from
the accused is in fact a prohibited drug chemist say. The
chemist must say where did he get it, kailangan i-
authenticate din yan where it was submitted by the police
officer and what will you do it if, for example, the one who
get. How do you know that it is the same sachet that you
signed from the sachet that you got.? “Well I got from him
and with a mark on the sachet so you see that is the way you
authenticate it.”
Chain of custody: if the real evidence is of a type which
cannot easily be recognized or can readily be confused or
14
tampered with, the proponent of the object must present
evidence of its chain of custody. the proponent must show
that there was a strong probability of correct identification
Is the exhibition of the portion of the body object evidence?
Yes, for example the knife that caused the stab
wound, you can just lift the shirt of the victim to
show the stab wound.
Is that testimonial or object evidence?
The exhibition of injury is an object evidence or real
evidence because it will show the condition or status
of wound the skin, color and the size.
Is there any limitation to on the right to exhibit injured portion
of the body?
The only limitation would be that it would not offend
the court or the person in the court.
But why they would be offended eh evidence yun? Can the
judge say “I don’t want to see the wound, the testimony is
denied.” Can there be a ground to object to refuse to look at
the wound?
Yes, one may not testify where the testimony it may
be too delicate for third person. have it
photographed rather than he looked at the wound
and a doctor to testify as to its nature, that the judge
may not want to look at it but the doctor may
described it, without him or her looking at it. That’s
valid.
Is the appearance of a person, is it object evidence?
Yes
Why? What will it prove? What will the appearance of a
person that will prove to consider it object evidence?
It will prove the race, the age, the appearance can be
an estimate of the age and the color of the skin if
he’s race black, Chinese, Japanese, Malayan, or from
the Middle East, etc.
Would the inspection of the body of a person constitute object
evidence?
Yes, an ocular inspection of the body of the accused
is permissible
For example he has defect on the way he walk or whether he
has scar. The evidence is the looking whether its still the
evidence is in the looking.
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
How about that the shoe found in the place where the crime is
committed and the accused is asked to try the shoe. Can the
accused refuse on the ground of self incrimination or damage
his foot? Can he object?
No, he cannot object on that ground because that is
only limited to testimonial or oral.
But trying on a shoe, is that testimonial or object evidence?
Object evidence.
How about Photographs? Motion Pictures? DVD? Are they
Object Evidence?
Yes, the contents of DVD, so it is play.
How about tape, object evidence?
Yes, that is part of object evidence and it really
contains the images and sounds that it may
constitute Object evidence.
How do you authenticate that? Faithfully reproduce? How’s
that? How will you authenticate? Who will authenticate it?
What constitutes authentication?
The one who took the pictures and the witnesses
who are in the event of taking the picture
Supposing I show to you a picture of your mom taken by
somebody else and I show you and say “Is this your Mom?”
and you are not there when the picture taken, you did not
take the picture, can you authenticate it?
Yes, because you know your mom. So someone also
who may not be there may authenticate even not
there because they know them by their appearance.
can a paper and what printed on it would considered
documentary evidence, for example, you have a map of the
Philippines on a piece of paper, is that documentary or object
evidence?
It is documentary evidence actually when you read
it, it has word and you read it for what it says. That
an evidence is what a document is. So document
pertains to map, picture, drawing, if a drawing it will
be the picture that will be presented, if you don’t
read it you’ll look at it. It doesn’t speak, it doesn’t
give a message. It is the inspection that you’ll get out
of the picture.
For example a falsified document the accused erase the
picture, he try to erase the name of the signature, the victim,
is that promissory note a document or Object Evidence?
The court decision there, that is not the text of the
Promissory Note if you’re going to use it, depending
on the object, if it doesn’t use the tenor of the
instrument then that is documentary evidence. But
if you’re presenting the proof of the forgery, the
15
signature presented has show not to prove the
signature as the same as it that is object evidence.
Supposing the witness is asked to…… you said that you were
present in the room when the accused and complainant
confronted each other, will you please draw a sketch of your
position, the complainant and the accused before they
engage in fist fight. So you draw and you mark it as X and put
around it and mark it as with your name on the other one.
Now can you present it in court the sketch that was prepared?
Is it document evidence or Object Evidence, do you read it? or
visualize it?
you not read it so it’s not the message, it’s not the
text that is the evidence we use but the visualization
like a painting but here it’s not part of testimony of
the in a sense not part of testimony of witness then
that is part of testimonial evidence that per se on its
own object evidence.
Documents as Object evidence- where it is produced in court
to show the existence or condition.
Are paraffin test considered Object Evidence or testimonial
evidence?
Object Evidence.
Is it admissible to prove that he fired a gun?
No, it’s not.
Why is it not conclusive? but the paraffin may also have some
mark when you hold for example fertilizer or hold a gun
powder you can get it even if you didn’t fire a gun or even if
when you fired a gun why will not conclusive if they find
negative for the ingredient that they could use on gun
powder. Why is not conclusive? The testimony is not
conclusive, why?
Because you can have a stain on the palm even if u
just light a match or the ingredient for gunpowder. If
you fired a gun and you washed it, you can be
negative for paraffin test, so it’s not conclusive.
Can the court allow demonstration in the courtroom? Is that
testimonial or object evidence in that situation?
Object Evidence because the court will re-enact so
that there will be the re-enactment or
demonstration.
What is the level of admissibility of Object Evidence in relation
to other forms of evidence like testimonial evidence or
documentary evidence?
An evidence of highest probability
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Why?
Because the condition of the thing, the picture
cannot lie and that the witness can lie, so Object
Evidence in that case is believable.
Is scientific proof regarded as Object Evidence just like
example the effect the chemical and found on prohibited
drug? Is that testimonial evidence or Object Evidence?
Object Evidence, well the proof but the witness
maybe deprived of with the lack of scientific
experiment but actually it is Object Evidence.
DNA/fingerprinting? Are those Object Evidence?
Yes.
How about Polygraph test? Is that considered Object
Evidence?
Yes
Is it admissible in evidence? Polygraph Test is lie detector.
No,
Why not?
It’s not 100% accurate or true
EVID6 (this file is not completely transcribed due to some noises, refer to our book
for supplements)
Section 2. Documentary evidence. — Documents as evidence consist of
writing or any material containing letters, words, numbers, figures, symbols
or other modes of written expression offered as proof of their contents.
What is the presumption on the non-production of document?
There is a suppression of evidence
What would document as evidence consist of?
Documents as evidence consist of writing or any
material containing letters, words, numbers, figures,
symbols or other modes of written expression
offered as proof of their contents.
Is a photo a document?
No, because documents are something to be read
not viewed, a photo is something that can be viewed
DVD videos are not document because they are not use for
reading but for viewing
A document is a deed, instrument or other duly authorized
paper by which something is proved, evidenced or set forth.
Documentary evidence is that which is furnished by written
instruments, inscriptions and documents of all kinds
16
Section 3. Original document must be produced; exceptions. — When the
subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself, except in the following
cases:
(a) When the original has been lost or destroyed, or cannot be
produced in court, without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter fails to
produce it after reasonable notice;
(c) When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss
of time and the fact sought to be established from them is only
the general result of the whole; and
(d) When the original is a public record in the custody of a public
officer or is recorded in a public office
What evidence is required when the subject of inquiry is the
contents of the documents?
The original documents
Can an evidence other than the original document admissible
as evidence?
As a general rule, No, only original documents is
admissible as evidence.
Are there exceptions to that rule?
Yes.
The exceptions are:
• When the original has been lost or destroyed, or
cannot produced in court, without bad faith in the
part of the offeror
• When the original is in the custody or under the
control of the party against whom the evidence is
offered, and the latter fails to produce it after
reasonable notice
• When the original consists of numerous accounts or
other documents which cannot be examined in court
without great loss of time and the fact sought to be
established from them is only the general result of
the whole
• When the original is a public record in the custody
of a public officer or is recorded in a public office
The production of the original document is procured by mere
notice to the adverse party, and the requirements for such
notice must be complied with as a condition precedent for
the subsequent introduction of the secondary evidence by
the proponent.
When the primary source of proof consists of voluminous
documents which cannot be conveniently examined in court
and the fact to be proved can only be ascertained by an
examination of the whole collection. In such a case a
summary or the general result of the examination may be
given in evidence by any person who has examined the
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documents an who is skilled in such matters, provided the
result is capable of being ascertained by calculation
Requisites:
• There must be proof voluminous character of
records
• The records and accounts should be made accessible
to the adverse party so that the correctness of
summary may be tested on cross-examination
• The general result sought to be proved is one
capable of being ascertained by calculation.
The existence and contents of judicial and other public
records may be proved by a properly verified copy, the
grounds for the exception being the risk of loss from removal
of records, the public inconvenience suffered by their
absence of any motive in public officers to make false copies
What is the reason for the best evidence rule?
The purpose of the rule is to avoid risk of error in
trusting somebody’s copy or recollection of words or
symbols may make a vast difference in meaning.
Also, production of original prevents fraud and
mistakes that might occur if oral testimony or copies
used in lieu thereof.
Supposing the issue is not the contents of the documents but
the fact that the document exists, for example, did you get
examination permit and then there is an objection saying that
the best evidence is the examination permit itself not the
testimony of the witness, is the original document necessary?
No, because what is in issue is not the contents of
the documents but only its existence
Suppose the witness is asked “does your permit says that u
already paid your tuition fees?”
Then, the best evidence rule will apply because the
witness is being asked to recall what the document
contains.
In land registration cases to prove ownership, can a party
present aside from the original title, the records contained in
the registration book in the registry of deeds the fact of the
existence of the title?
No, because the best evidence of title of ownership
in the land is the original certificate of title.
When should u produce that recording?
If the original certificate of title is not available
3 kinds of secondary evidence under exceptions 1 and 2
• A copy of said document
17
• A recital of its contents in an authentic document
(recordings)
• Recollection of witnesses
Under exception 3; secondary evidence may consist of
summary of voluminous documents or records
Under exceptions 4: secondary evidence may consist of
• Certified true copy
• Official publication
If the issue is the existence of the marriage, will the testimony
of the priest to whom the marriage is celebrated is admissible
as evidence?
No, the person who allegedly solemnized a marriage
is not admissible evidence of such marriage unless
proof of loss of the contract or of any satisfactory
reason for its non-production is first presented in
court. The best evidence of the existence of the
marriage is the authentic copy of the marriage
(This is what the book says)
contract.
Even the marriage contract is not the best evidence
because the best evidence rule will apply when what
is in issue is the contents of the contract, but the
issue in the case given is the existence of the
(This is what he said)
marriage.
But if the issue is “did you sign the contract?” is the
marriage contract is the best evidence?
No, because it is not the existence of the
signature of the contract is what is being
tried to prove, what we are trying to prove
here is that your signature is in the
contract.
But if the issue is “what are the names of the party
appear in the contract?” and then a testimony of a
witness says, “the names are Marx, Angela, Jen and
Mon” is the testimony allowed?
No, the evidence (testimony) is
objectionable because we are after the
contents of the contract, so the best
evidence is the contract itself
Existence of a document can be proved by testimonial
evidence.
In a criminal case of falsification of document, what evidence
will be required to be enable to establish the crime of
falsification of documents? can u prove it by testimonial
evidence concerning the fact that on the document witness
knew that the amount was change to make another amount?
The document because what are we trying to prove
is that the contents had been changed
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Suppose the original of the falsified document is the hands of
the defendant, what is the remedy of the prosecution?
The prosecution can present certified copies (photo
static copies) of said documents may be presented
by the prosecution and are admissible as evidence,
on the principle that secondary evidence are
admissible whenever the primary evidence is not
objectionable.
How about when an company employee embezzled the
company funds by establishing the amounts received by the
accused and comparing it with those deposited in the bank,
the prosecution presented the ledgers and the bank
statement of accounts to prove the misappropriation
committed by the bank employee but the bank employee
objected on the ground that the best evidence will be the
deposit slips and not the bank ledger and statement of
accounts, is that a valid objections?
No, the ledgers and bank statements found in the
files of the complainant which were supposed to
confirm the amounts he had ordered the accused to
be deposited are the best evidence of the amounts
actually entrusted to the latter.
Bank teller ask “is that your signature appearing in the
check?’There is an objection “the best evidence is the check
itself” Should the objection be sustained or overrule?
Sustain, because the issue is not the contents of
check
If the question is “what amount appears on the check?”
The best evidence is the document itself.
Passenger take down notes…… conversation…..
Testimony as to the fact of execution or the existence of
writings or references to written instruments are a mere
inducements are not within the rule requiring the production
of the instrument itself
Even if a fact in issue is evidenced in writing, the document is
not necessarily the best evidence
A distinction should be made from the proof of the facts
recorded and proof of writing itself.
The best evidence rule has no application to a case where a
party seeks to prove a fact which has an existence
independently of nay writing; he may do so by oral testimony,
even though the fact has been reduced to, or is evidenced by,
a writing
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Can an affidavit be regarded as the best evidence of the facts
stated in such affidavit?
No, the affidavit is hearsay; it cannot be the best
evidence of the facts. The best evidence is the
testimony of the witness under oath.
Affidavits are not considered best evidence, if the affiants are
available as witnesses. The use of affidavits should be
regulated by hearsay rule to safeguard every opportunity to
cross-examine the affiants with regard to their contents and
due execution.
Can payment be proved by testimonial evidence if a receipt
had been issued for him? Example: did u already paid ur
tuition fee? Objection: the best evidence is the receipt. Sustain
or Overrule?
Overrule, because the issue is the fact of payment
and not the contents of the documents
Can testimony be used to prove the existence of document?
Example: “do u have a marriage contract?” objection: the
best evidence is the marriage contract. Sustain or overrule?
Overrule, because the fact in issue is the existence of
the marriage contract.
“What does the marriage contract says regarding the date
when it was celebrated?” objection: the best evidence is the
marriage contract. Sustain or overrule?
Sustain, because the fact in issue is the contents of
the contract
After the celebration of the marriage, did the parties signed
the marriage contract? objection: the best evidence is the
marriage contract. Sustain or overrule?
Overrule, because the fact in issue is whether the
parties signed the marriage contract.
Failure to timely object is deemed a waiver
When is the proper time to object on the ground of best
evidence rule?
At the time they question is asked seeking to elicit
the contents of a document. At the time it is formally
offered.
Section 4. Original of document. —
(a) The original of the document is one the contents of which are the
subject of inquiry.
(b) When a document is in two or more copies executed at or about
the same time, with identical contents, all such copies are equally
regarded as originals.
(c) When an entry is repeated in the regular course of business, one
being copied from another at or near the time of the transaction,
all the entries are likewise equally regarded as originals.
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What is the original of document?
• The original of the document is one the contents
of which are the subject of inquiry.
• When a document is in two or more copies
executed at or about the same time, with
identical contents, all such copies are equally
regarded as originals.
• When an entry is repeated in the regular course
of business, one being copied from another at
or near the time of the transaction, all the
entries are likewise equally regarded as
originals.
When there are 2 or more original copies, any of them may
be used without accounting for the others.
A copy may not however, be used without accounting for
other copies. It must appear that all of them have been lost,
destroyed, or cannot be produced before secondary evidence
can be given of any one.
In an action for libel based on defamatory article published
newspaper, the newspaper containing said article is the best
evidence.
Photo static copies may be presented as evidence.
What must you prove first before u can present secondary
evidence in place of the original?
The original is no longer unavailable
Section 5. When original document is unavailable. — When the original
document has been lost or destroyed, or cannot be produced in court, the
offeror, upon proof of its execution or existence and the cause of its
unavailability without bad faith on his part, may prove its contents by a copy,
or by a recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated.
What is the remedy if the original in unavailable?
Secondary evidence is admissible when the original
document were actually lost or destroyed. But prior
to the introduction of such secondary evidence, the
proponent must establish the former existence of
the document.
3 kinds of secondary evidence (in that order)
1. A copy of said document
2. A recital of its contents in an authentic document
(recordings)
3. Recollection of witnesses
What is needed to be proved that the original is unavailable?
Secondary evidence may be introduced not only
when the original has been lost or destroyed and
there is exertion of reasonable diligence to find the
19
original but also when it cannot be produced in
court, without bad faith on the part of the offeror.
How should the due execution of document is proved?
The due execution of the document may be
established by:
• the person or persons who executed it;
• by the person before whom its execution
was acknowledged; or
• by any person who was present and saw it
executed or who after its execution, saw it
and recognized the signatures; or
• by a person to whom the parties to the
instrument had previously confessed the
execution thereof.
Is it possible if a party intentionally destroyed a document in
good faith?
Yes, there may be an intention to destroy it, but
there is no intention to suppress it
Can secondary evidence be presented, if the original exist but
it happens to be in a foreign country?
Yes, secondary evidence is admissible upon showing
that the original is in the custody of a person beyond
the jurisdiction of the court because the court has no
power to compel attendance of the witness having
custody of the evidence or production of the
evidence itself
Section 6. When original document is in adverse party's custody or control. —
If the document is in the custody or under the control of adverse party, he
must have reasonable notice to produce it. If after such notice and after
satisfactory proof of its existence, he fails to produce the document,
secondary evidence may be presented as in the case of its loss.
What is the remedy if the original document is in the control
of the adverse party?
If the document is in the custody or under the
control of adverse party, he must have reasonable
notice to produce it. If after such notice and after
satisfactory proof of its existence, he fails to produce
the document, secondary evidence may be
presented as in the case of its loss.
Is there any particular form of notice required?
None, notice is sufficient if the party served may
reasonably understand that a certain document is
required.
Section 7. Evidence admissible when original document is a public record. —
When the original of document is in the custody of public officer or is
recorded in a public office, its contents may be proved by a certified copy
issued by the public officer in custody thereof.
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
What is the rule when the document is a public record?
When the original of document is in the custody of
public officer or is recorded in a public office, its
contents may be proved by a certified copy issued by
the public officer in custody thereof.
Section 8. Party who calls for document not bound to offer it. — A party who
calls for the production of a document and inspects the same is not obliged
to offer it as evidence.
EVID7
Section 9. Evidence of written agreements. — When the terms of an
agreement have been reduced to writing, it is considered as containing all
the terms agreed upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than the contents of
the written agreement.
However, a party may present evidence to modify, explain or add to the
terms of written agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written
agreement;
(b) The failure of the written agreement to express the true intent
and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written
agreement.
The term "agreement" includes wills.
What is the rule regarding the evidence of when the terms of
an agreement have been reduced in writing?
When the terms of an agreement have been
reduced to writing, it is considered as containing all
the terms agreed upon and there can be, between
the parties and their successors in interest, no
evidence of such terms other than the contents of
the written agreement.
This is a rule of exclusivity. If you have an agreement
it excludes other evidence once the terms of the
agreement are reduce into writing.
What are the reasons for this?
To maintain the stability of the written agreement
and remove the temptation and possibility of perjury
A written instrument is more reliable and accurate
than human memory in establishing the terms of an
agreement
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If they have a written agreement but they can say no that’s
more than that. There are other terms. What is the
result/value of written agreement if after you showed that
there is a written agreement it is not challenged as to its
validity and execution but they can say they agreed to more?
They make a joke out of written agreement.
Written agreement becomes a serious evidence of what the
parties have agreed upon to make the transactions more
stable and more secure.
Does the rule apply when parties, when the parties entered
into a written agreement did not intend that the agreement
will be complete or integrated? Give the basis.
It depends. If the parties want to present additional
evidence, tender an issue to determine that in his
pleadings.
When an agreement has been the subject of a suit between
the parties. It is in their complaint, answer. And their answers
did not raise any question concerning the completeness of this
agreement then during the trial, if they want to introduce
verbal evidence that there are other agreements, can this be
allowed?
They cannot. If in their pleadings they did not allege
that the agreement is incomplete they cannot later
on present parol evidence
The important requisite that you should always
remember is that you can introduce evidence that
tend to vary the terms of the written agreement
only if you tender an issue in the answer and in the
complaint concerning the completeness of this
agreement.
If you tender they issue, they cannot object, that
parol evidence will not apply, because precisely you
challenge the application and justifiability of the
parol evidence rule and then you can present
evidence.
What are the instances where you can present parol evidence
if you can tender issue concerning certain aspects of the
agreement?
Exemptions to the application of the parol evidence
rule
o intrinsic ambiguity, mistake or imperfection
in the written agreement
o failure of the written agreement to express
the true intent and agreement of the
parties thereto
o validity of the written agreement
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o existence of other terms agreed to by the
parties or their successors in interest after
the execution of the written agreement.
All these 4 should be tendered in your pleadings.
nd
Supposing a party executes a “receipt” in favor of another (2
st
party) that he received P10 k from him (1 party). Later on 1st
st
party the proved that it is a loan. But the debtor (1 party)
presented evidence to the effect that he received the 10 k for
an advance for purchase of a laptop. Can the court prevent
the introduction of evidence that 10 k is for the purchase of
the laptop?
Yes. The document (receipt) presented is does not
show an agreement, the party can introduce
evidence.
Example: The contract states:
Whereas A desired to buy a land from D. Whereas D wants to
sell his land to A. therefore, D hereby sells his land to A. Can
evidence be presented that does not to conform to the
statement of the whereases of the contract?
No, because the rule covers the written agreement,
the terms they agreed on. It does not cover the
recitals of facts. The facts constitute an agreement.
Whereas portion of the contract does not constitute
a facts of the agreement
The agreements are those that follow:
Therefore the parties hereby…(this is the
agreement)
So any error in the whereas clause can be corrected
Statement of facts may be varied by parol evidence.
A distinction should be made between a statement of fact
expressed in the instrument and the terms of the contractual
act. The former may be varied by parol evidence but not the
latter. Section 9 Rule 130 clearly refers to the terms of an
agreement and provides that “there can be, between the
parties and their successors in interest, no evidence of the
terms of the agreement other than the contents of the
writing.
Does the parol evidence rule apply where the controversy is
rd
between a party to the agreement and a 3 person?
No. the parol evidence rule does not apply and may
not properly invoked by either party to the litigation
against the other, if at least one of the parties to the
suit is not a party or privy of a party to the written
instrument in question and does not claim on the
instrument or assert a right originating in the
instrument or in the relation established by it.
21
What are the distinctions between best evidence rule and
parol evidence rule? Where is the original of the document in
parol evidence rule? Is the question of the original of the
document part of the issue? What does the parol evidence
rule prohibit and what does the best evidence rule prohibit?
Parol Evidence disallows introduction of evidence to
alter the written agreement. Best Evidence rule
prohibit production of secondary evidence other
than the original.
Best evidence rule applies to all kinds of documents. Does the
parol evidence rule apply to all/ cover all kinds of documents?
No. Only written agreements.
There is only one exception. Not a written agreement but is
covered by the parol evidence rule. What is that?
Wills
What is the “theory of integration of jural acts?”
All previous and contemporaneous agreements are
deemed included in the written agreement
There is one case where the written agreement says payment
must be in cash, but the parties tried to present evidence that
the agreement was later on varied to provide for credit
payment payment w/ promissory note. Can this be done?
As a rule, no.
But can this be done in some other way - to vary the terms of
agreement from cash to credit?
Always remember the Prerequisite no. 1. If the
parties question the correctness or accuracy of the
terms, and the fact that parties agreed later on to
vary later on to vary it to allow credit then you can
present. Only when you tender a new dispute. When
you dispute the applicability of the parol evidence in
that document will you be able to present parol
evidence. So you should put in your answer
(pleading) that the agreement is inaccurate does not
reflect the true agreement of the parties, it is void.
Put it there in your pleadings. When you have done
that, then you are provided w/ an exception to parol
evidence rule
If you intend to present evidence to vary the terms of the
agreement during the trial, then you should make that part of
you answer (pleading). Otherwise you will be barred by the
parol evidence rule.
Are collateral (side or separate) agreements between the
parties to a written contract admissible in evidence? Example:
you are a contractor to repair our roof. Then later on I entered
into another agreement with you to unclog our sink. Can
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evidence be show that there was an agreement to unclog the
sink?
Yes, even it is between the same parties, if it is
essentially covers another matter that is one subject
of the principal agreement even if it is prior to or
contemporaneous with the agreement to repair the
roof.
One of the exceptions, provided it is tendered in the pleadings
of the parties, parol evidence can be presented to show an
intrinsic ambiguity, mistake or imperfection in the written
agreement. To what does mistake refer to?
Mistake of fact
i.e. parties agree to sell red chicken. They wrote in the
agreement white chicken. Can they present evidence to
present that it is red chicken?
Yes, if it is tendered in dispute in the pleadings. Even
if the other party does not agree that there is no
mistake. You don’t have to get the other party to
agree that there was a mistake.
The other party does not have to agree that there
was mistake provided that you tender an issue that
there was a mistake then you can prove that there
was a mistake.
Parties do not need to agree that the case falls under the
exception. It is the person who tenders an issue that can
present evidence even over the objection of the other party.
Example: This is the same with imperfection. There is an error
in the agreement.
In an agreement to sell a parcel of land in a
particular street. In that street the seller has 2
parcels of land there.
Here there is an error in the identification of the land
How about ambiguity?
2 kinds: (provided an issue tendered by the party)
o latent on its face the agreement is clear,
but when you execute there is a showing
that the matter is uncertain

i.e. it refers to a person (Mon
Pasia). In realty there are 2 person
with that same name and no
distinction if it is Sr. or Jr.

Mon Pasia Sr. and Mon Pasia Jr.
o patent on its face the terms is ambiguous

i.e. in the agreement A sells
“some” of his ticket
o intermediate ambiguity when terms are
equivocal (capable of interpretation). So
22
you have to show which interpretation is
correct.

i.e. contract is “dollar.” US or
Hongkong?
If parol evidence of the terms of agreement is presented by
the plaintiff but the defendant fails to object, what is the
consequence of that?
He is deemed to have waived the right to object to
the evidence and it becomes admissible because the
right to object evidence is waivable.
What happens to all prior or contemporaneous stipulations
which the parties did not include in their writing? Example:
parties verbally agreed 4 terms, but only 3 was written. What
th
happens to the 4 term? Can evidence be presented to prove
th
the 4 term?
No, when parties put their agreement into writing it
is presumed that all those agreed upon are the ones
that were put into writing; if it is not there they have
abandoned/ given it up.
Unless you tender an issue that there was a mere mistake.
The rule you cannot present. All previous and
contemporaneous agreement are deemed abandoned by the
parties once they put their agreement in to writing
May it be presumed that parties to a contract example A and
B entered in a contract of sale of a piece of land, may it be
presumed that they put in 1 writing, the deed of sale, all the
agreements which may on different subject matter?
Yes. You can prove contracts covering different
subject matter.
Example she agreed also to sell a cellphone (that’s different).
Can conditions that qualify the operations of the contract be
established by parol evidence?
Yes, if pleadings of a parties tender an issue that
they intended to qualify. (c0ndition precedent)
When the operation of a contract is made to depend on the
occurrence of an event, parol evidence is allowed. PArol
evidence is not a bar to oral evidence to show a conditional
delivery of a document. So, where there is a condition
precedent that must be fulfilled before a written contract
becomes effective, oral evidence as to said condition may be
received.
Is the rule the same when the operation of the contract is
dependent upon occurrence of an event? Example if it rained I
will sell the umbrella to you and you will pay me so much. Can
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you present evidence that it rained so the agreement
becomes operative?
You can, because you did not alter the agreement.
You actually enforcing its terms by presenting
evidence of the happening of the condition that will
make it operative.
May parties to written agreement – you enter in to a contract
to a sell a particular land w/ somebody, can you present parol
evidence to show that subsequent to that contract to sell the
parties came to an agreement to abandon the contract?
As a rule, you cannot. (Condition subsequent), but if
u tender an issue about the abandonment, u can
Are strangers to a written agreement bound by parol
evidence rule?
NO.
What are the requisites in order that parol evidence may be
admissible on ground of mistake?
1. Mistake of fact
2. common to both parties
3. raised in the pleadings (in all exceptions)
What kind of evidence must you present to overcome the
presumption of completeness or understanding of the
agreement of the parties? How strong will your evidence be?
Clear and convincing evidence
Can evidence be presented to clarify intrinsic ambiguity in the
agreement?
Yes. If it tends to explain or clarify things in the
agreement extrinsic evidence may be given.
i.e. You sold to de la cruz and there are 2 de la cruzes.
May parol evidence be admitted if the parties intended
different agreement?
Yes, provided it is raised in pleadings
Does that rule apply also to evidence showing the validity of
the contract i.e. vitiated consent? The parties acknowledge
the act is theirs that the instruments is theirs, it is state
therein that it was a free act and deed.
Yes, if raised in the pleadings
Supposing there is contract of lease between A and B and the
terms provide:
1. it will cover apartment X
2. 2. rental of P10 K monthly
3. term in 1 yr
4. signed by A and B on May 1
Question:
23
Is evidence of verbal agreement between A and B, to the
effect that A also leases to B refrigerator, TV and washing
machine for P1K per month, admissible?
nd
No. The 2 contract is the lease of appliances,
st
subject matter different from the 1 contract. Hence
it is not presumed to be covered by the latter.
(Philippine setting)
Yes, the lease of refrigerator, TV and washing
machine is covered in the same contract. (American
setting)
If evidence of verbal agreement between A and B that the
rate interest of 5% per month if not paid on time, admissible?
Yes
Is interest of late rental logically/essential part of a lease
contract?
Yes
But if it is not in the contract can you collect it?
No. You cannot say it is a separate collateral
agreement concerning interest on rent because it is
essential part of the agreement.
Obligation to pay interest must be in writing
otherwise its not going to be binding on the
parties(Civil Code).
Is evidence of verbal agreement between A and B that no pets
may be allowed in the premises if the contract is silent?
No. It should be part of the terms and conditions of
the agreement. If its not there then it is not part of
the agreement.
Of course if you question that in your pleading that there is a
mistake then that is another point. But if in the face of the
agreement there is no ambiguity
Section 10. Interpretation of a writing according to its legal meaning. — The
language of a writing is to be interpreted according to the legal meaning it
bears in the place of its execution, unless the parties intended otherwise.
How is the language of a writing to be interpreted?
According to the legal meaning of the language used
understood in the country where the contract was
executed unless the parties provide otherwise.
Is it for the court to interpret the contract of the parties?
Essentially who should to interpret the contract?
The parties
The purpose of the court is really to understand, discover
what the parties intended by their agreement. Not what the
court intends.
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
May the parties select the law that will apply to their
agreement?
As a rule, Yes they can choose the law they want to
apply to their agreement especially if there is a
foreign element.
Is there a law saying that this contract (i.e. Japanese contract)
will be governed by the law of Japan?
None. The agreement of the parties will prevail as to
what law will apply.
Essentially if a foreign law applies to the contract, what
aspects of the foreign law will govern?
Qualifications/capacities of the parties to enter into
contract
Formalities in the execution of the contract, if there is a
formality required by the law of Japan that is not applicable
here, could that be binding on the parties? Example parties
agree that the applicable law in case of dispute shall be the
law of Japan, but it is signed in the Philippines will such law
(Japan) apply?
Yes. Parties can adopt a law of their choice because
there is no law that prohibits.
If the parties used a foreign law, does that make the contract
a foreign contract even if entered into in the Philippines?
No, still Philippine contract, because of the Venue
where the meeting of the minds took place. Where
the agreement was perfected.
When is there need for the court to interpret documents or
agreement?
If the terms are not clear.
If the terms are clear can the court interpret?
No
Section 12. Interpretation according to intention; general and particular
provisions. — In the construction of an instrument, the intention of the
parties is to be pursued; and when a general and a particular provision are
inconsistent, the latter is paramount to the former. So a particular intent will
control a general one that is inconsistent with it.
If the words of the contract appear to be different from the
true intent of the parties which should prevail?
True agreement of the parties
Are the parties bound by the name or title given by the
contract?
No. The actual provisions of the agreement controls
rather than the title.
If the title is of the agreement Mortgage but under its terms
its show pacto de retro sale (sale w/ right to repurchase)
24
Section 11. Instrument construed so as to give effect to all provisions. — In
the construction of an instrument, where there are several provisions or
particulars, such a construction is, if possible, to be adopted as will give
effect to all.
How will you construe an instrument that has several
provisions or particulars? Ex. There are 12 particulars, there
are some apparent inconsistencies among the 12 provisions
how will the court interpret the whole document?
Court will make an effort to reconcile the provisions
to make effective the whole agreement rather than
just part of it.
What is the duty of the court where there is an apparent
inconsistency between 2 provisions?
Reconcile the provisions.
When a general and particular provision are inconsistent,
which will prevail?
Particular provision because it refers to a specific
subject matter, while the general provision refers to
a wider subject matter
For the proper construction of an instrument how will the
judge be placed in the position of those whose language is to
interpret?
Should he determine from the agreement the
circumstances…
Section 13. Interpretation according to circumstances. — For the proper
construction of an instrument, the circumstances under which it was made,
including the situation of the subject thereof and of the parties to it, may be
shown, so that the judge may be placed in the position of those who
language he is to interpret.
Can the court consider the “whereases” portion to determine
what parties really want to happen?
“Whereases” clause is actually helpful to determine
the intention of the parties. While it is not part of
the agreement they are useful for interpretation.
What will the court do where the parties placed an
interpretation to their contract for its terms?
Even if the words have different general meaning,
the parties themselves defined the meaning of the
words or certain terms, the court is bound by that
How will the intent of the parties be ascertained if their
contract is contained in several documents?
The court can get all the documents
Section 14. Peculiar signification of terms. — The terms of a writing are
presumed to have been used in their primary and general acceptation, but
evidence is admissible to show that they have a local, technical, or otherwise
peculiar signification, and were so used and understood in the particular
instance, in which case the agreement must be construed accordingly.
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
When may the words in a contract/writing be given a peculiar
rather than a general interpretation? What is the
presumption?
The terms of a writing are presumed to have been
used in their primary and general acceptation
When can the court give a general word a peculiar meaning?
i.e waive (abandon, give up a right)
Based on what the parties intended
Section 15. Written words control printed. — When an instrument consists
partly of written words and partly of a printed form, and the two are
inconsistent, the former controls the latter.
Between written words and partly printed form, which will
prevail in case of inconsistency?
The written word because it is more determinative
of the intent of the parties.
Example: riders in insurance contracts usually in
insurance contracts are general terms ……. then
signed by the parties
Section 16. Experts and interpreters to be used in explaining certain writings.
— When the characters in which an instrument is written are difficult to be
deciphered, or the language is not understood by the court, the evidence of
persons skilled in deciphering the characters, or who understand the
language, is admissible to declare the characters or the meaning of the
language.
When will experts be called to interpret writings and give
theme meaning?
When characters are difficult to decipher
Section 17. Of Two constructions, which preferred. — When the terms of an
agreement have been intended in a different sense by the different parties
to it, that sense is to prevail against either party in which he supposed the
other understood it, and when different constructions of a provision are
otherwise equally proper, that is to be taken which is the most favorable to
the party in whose favor the provision was made.
How shall agreement to be construed when the different
parties have intended its terms to be in different sense?
Your own interpretation will bind you. Court may
consider your own interpretation binding upon you
but not necessarily upon others.
Or in the manner the other understood it is binding
upon you.
But suppose the different constructions of a provision are
otherwise equally proper how is it to be construed?
The particular provision was placed there shall be
interpreted in favor of the party for whom it was
made (not necessarily the whole contract)
If that provision provides for a right of redemption it
should be interpreted as to make effective the right
25
of redemption in favor of the party the provision was
given.
What is a contract of adhesion?
One in which one of the parties imposes a ready-
made form of contract, which the other party may
accept or reject, but which the latter cannot modify
Example: subscription for electrical or water services
How are contracts of adhesion construed?
In the event of ambiguity in a contract of adhesion,
the doubt must always be resolved against the party
who prepared the contract and in favor of the one
who merely adhered to it. Because there is an
imposition by one party upon another who accepts
the terms of a contract already prepared by the
former, by reason of necessity which curtails the
bargaining power.
Section 18. Construction in favor of natural right. — When an instrument is
equally susceptible of two interpretations, one in favor of natural right and
the other against it, the former is to be adopted.
When an instrument is equally susceptible of 2
interpretations, 1 in favor of natural right and another
against it?
One in favor of natural right and the other against it,
the former is to be adopted.
Example:
Document looks like a chattel mortgage and loan
with right to repurchase because it’s an essentially
transmissible right
Section 19. Interpretation according to usage. — An instrument may be
construed according to usage, in order to determine its true character.
How is the true character of an instrument be determined?
It can be construed according to usage, in order to
determine its true character
EVID8
Section 20. Witnesses; their qualifications. — Except as provided in the next
succeeding section, all persons who can perceive, and perceiving, can make
their known perception to others, may be witnesses.
Who may be witnesses?
All persons who can perceive, and perceiving, can
make their known perception to others, may be
witnesses.
What are the requirements for a witness to testify?
• Observe
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
• Repeat what u have observe (relate, or make known
to others)
• Understand the significance of his testimony (duty to
tell the truth)
If there is a failure to take an oath, can a testimony be
admitted?
Yes, if there is no objection
An oath is only an affirmation that you will say the truth
Can the bias of a witness in favor of one party be a ground for
her disqualification as a witness? Like a mother is testifying
for his son.
No, bias is not a ground for disqualification of a
witness, but such fact may affect the credibility or
level of believability of such witness
At what point in time will the court determine the
qualification of a witness?
At the time when the witness is presented, when he
is put in the witness stand
If a defendant is declared in default, but his other co-
defendants are not, can the co-defendants present the
defaulted defendant as their witness?
Yes, because he is only disqualified to take part in
the trial as a party but he is not disqualified as a
witness. Being in default does not disqualify the
defendant as a witness.
Can a witness who does not want to testify in court be
compelled to testify?
Yes, thru a subpoena. It is his (witness) citizen’s
testimonial duty. Every competent person may be
compelled to bear testimony in the administration of
the laws by the duly constituted courts of the
country.
A prospective witness must show that he has the ability:
• To observe, the testimonial quality of perception
• To remember, the testimonial quality of memory
• To relate, the testimonial quality of narration
• To recognize a duty to tell the truth, the testimonial
quality of sincerity
When is a person incompetent to testify as a witness?
• Unsound mind
• When the rules disqualify a person to become a
witness
26
In all cases?
Of unsound mind, yes in all cases, but except during
lucid interval
Incompetency to testify is of two kinds:
• Absolute- forbidden to testify on any matter
• Partial- forbidden to testify only on certain matters
due tot the interest or relationship, or to privileges
of other parties
Can a witness be disqualified if his recollection is incomplete?
No, but it affect his level of credibility
When is the time to object to the competency of a witness?
At the time he is presented or if the incompetence
has manifest (as soon as the facts tending to show
incompetency are discovered)
What is the effect of the failure to object?
It constitute a waiver
When a party must make his objections as to the qualification
of a witness?
At the time the witness is presented (during direct or
cross-examination)
Is the ruling of the judge as to the competency of a witness
appealable?
No
Can u make use of a remedy of a special civil action of
certiorari?
Yes, if there is abuse of discretion
If the whole case was appealed, can u raise question on some
of the rulings of the judge in the qualification of the witness?
Yes, not just the ruling but the assignment of error.
Section 21. Disqualification by reason of mental incapacity or immaturity. —
The following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production
for examination, is such that they are incapable of intelligently
making known their perception to others;
(b) Children whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are
examined and of relating them truthfully.
Who cannot be a witness under sec 21?
(a) Those whose mental condition, at the time of their
production for examination, is such that they are
incapable of intelligently making known their
perception to others;
(b) Children whose mental maturity is such as to render
them incapable of perceiving the facts respecting
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
which they are examined and of relating them
truthfully.
Is it the burden of the witness to prove his competency?
No
Who has the burden to prove the incompetency?
The person asserting that the witness is incompetent
The assumption/presumption is that all witnesses are
presumed to be sane or of sound mind
What is the exception to the assumption/presumption?
If in the past, there has been a finding that the
witness is incompetent.
Does who suffer delusions follow that they cannot testify?
No, persons suffer delusions are not barred to testify
What will be the test of a person who suffer from delusions
can or cannot testify?
The judge has to see whether with respect to that
particular subject matter for which his testimony
may be taken whether that delusion affects his
testimony
How about testimony of a deaf mute? Can they testify?
Yes, may be thru writing, sign language or
interpreter
Who will the conduct interpretations for the deaf-mute?
An interpreter using a sign language that is capable
of verification
Can a deaf-mute testify if the peculiar, let say a sign language
that he developed by his relative peculiar to him?
No, he cannot use a peculiar sign system. The system
should be verifiable to others. The sign language
must be capable of verification. There is no means of
checking the correctness and veracity of the
interpreter’s interpretation if such sign language that
is peculiar to a deaf mute was interpreted by his
relative.
May children of tender age testify in criminal cases?
Yes,
Must a court simply allow a child of tender age to testify?
What must a court try to find out?
Whether the child is able has a sense of obligation to
speak the truth. Whether the child memory is
sufficient to retain an independent recollection of
the observation made
27
There are 2 time frames
• At the time that the event that he perceived
• At the time when he testify, he can relate it to others
In the case of a child witness, the court in determining his
competency must consider his capacity:
• At the time the fact to be testified to occurred such
that he could receive correct impressions thereon
• To comprehend the obligation of an oath
• To relate those facts truly at the time he is offered as
a witness
What is the probative value of a child?
The testimony of a child as the best in the world
What is the reason why u can believe a child rather to an
adult?
Because a child is not cunning
What will be the problem is the witness is a child? What
should be the look-out for a child when he is a witness?
• A child can be imaginative
• It is easy to make suggestion to a child. Children are
susceptible to all kinds of suggestions, they may be
led to lie (to make them that the lie is the truth)
Section 22. Disqualification by reason of marriage. — During their marriage,
neither the husband nor the wife may testify for or against the other without
the consent of the affected spouse, except in a civil case by one against the
other, or in a criminal case for a crime committed by one against the other or
the latter's direct descendants or ascendants
May the wife for or against her husband testify?
Generally, During their marriage, neither the
husband nor the wife may testify for or against the
other without the consent of the affected spouse
But a spouse can testify if there is a consent given by the
other spouse
What are the exceptions in marital disqualifications?
• in a civil case by one against the other
• in a criminal case for a crime committed by one
against the other or the latter's direct descendants
or ascendants
Is this a case of incapacity or denial of privilege to testify or
both?
Both
• Incapacity of one spouse to testify for the other
• Privilege of one spouse not to testify against the
other
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
What are the reasons for this rule on marital disqualification?
The reason why one may not testify for the other is
to obviate perjury, and against the other is to
prevent domestic disunity and unhappiness
How will it avoid perjury?
A spouse may be compelled by the other spouse to
lie for him because of love
What are the requisites for marital disqualification?
• That the spouse for or against whom the testimony
of the other is offered is a party to the case
• That the spouses are legally married
• That the testimony is offered during the existence of
the marriage
• That the case is not one against the other
Can the marital disqualification be waived?
Yes
Who can make the waiver?
In whose favor exist can waive it
Does this prohibition include a testimony given by one spouse
when the other spouse is a not a party in the case?
No
If spouses are party in the case, they are both party
defendants; can the plaintiff call one of the defendants to
testify that will have a negative effect in his co-defendant
which is his spouse?
No, because the case is not between them, but the
case is against both of them
Will this disqualification apply to a bigamous wife?
No, the disqualification applies only to a lawful wife-
not a bigamous one, nor to a paramour, nor an
affiance.
Section 23. Disqualification by reason of death or insanity of adverse party.
— Parties or assignor of parties to a case, or persons in whose behalf a case
is prosecuted, against an executor or administrator or other representative
of a deceased person, or against a person of unsound mind, upon a claim or
demand against the estate of such deceased person or against such person
of unsound mind, cannot testify as to any matter of fact occurring before the
death of such deceased person or before such person became of unsound
mind.
What is a dead’s mans statute or Surviving Party Rule?
Section 23
What is the subject matter of the testimonies?
It concerns matters occurring before the death of
the deceased or the person of unsound mind
28
What is the reason behind this dead man’s statute?
Because the deceased will have no chance to refute
the testimony of such persons giving testimonies.
Does the rule apply to criminal cases?
No, it only applies to cases affecting the estate of the
deceased or person of unsound mind
Purpose of enacting the rule
To prevent the surviving party to commit false
testimony
Why is it that this rule does not apply to third person?
Because a third person has no interest in the estate
of the person therefore he is neutral, he is presumed
to tell the truth.
Does it matter if the deceased died before or after the filing of
the suit?
No, the rule applies regardless of whether the
deceased died before or after the suit against him is
filed, provided he is already dead at the time the
testimony is sought to be given
When does this rule apply?
When the testimony is presented after the death of
the person or after the person becomes unsound
mind
Against whom the action filed?
Against the executor or administrator of the estate
of the deceased person
What is the subject-matter of the action?
Claim for recovery of sums of money to the estate
Can an officer of a corporation testify in support of his
company’s claim against the estate of the deceased person?
No, they are not disqualified from testifying for or
against the corporation which is a party to an action
upon a claim or demand against the estate of a
deceased person as to any matter of fact occurring
before the death of such deceased person because
the officer is not party nor assignor.
In one case where the plaintiff testify before the death of the
defendant, but when the motion for new trial was granted,
the defendant was dead, does the bar apply to the testimony
that was already given?
No, because the new trial does not result in the
abandonment of the testimonies in the previous trial
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
Can a plaintiff who is running after the estate of the deceased
testify as to the fraudulent act committed by the deceased
when he was alive in an action to recover damages?
No, but he can establish the wrongful act by other
evidence
Does this rule apply where the estate itself has a counterclaim
against the plaintiff and the subject-matter of that
counterclaim concerns acts of the defendant? Can the plaintiff
testify on the subject-matter of the counterclaim concerning
acts done by the deceased before he died?
Yes, because the rule applies of a claim against the
estate but such qualification does not arise where it
is the estate has made a claim against the plaintiff,
and counterclaims are actions against the plaintiff.
In a land registration case, can the oppositors testify that the
acts of the deceased do not constitute evidence of ownership?
The oppositors are considered as defendants and
may testify against the administrator or executor
applying for registration. The suit is not filed against
the estate; there is no claim against the estate.
Does the rule prevent the presentation of proof of fraudulent
transactions of the deceased?
Yes, but such fraud may be proved by some other
evidence
Does the rule apply to parties with conflicting claims to the
estate of the deceased? For example several claimants are
heirs; evidence of recognition of the defendant as heir.
No, because the issue here is not money claims
against the estate, it is an issue of who are the heirs
of the deceased
May the plaintiff testify to the transaction that is made thru
an agent of the deceased, if such agent is still alive? So the
plaintiff did not have a transaction directly. Can a testimony
be given by the plaintiff against the agent?
No, because the agent can refute. The adverse party
is competent to testify to transactions or
communications with the deceased or incompetent
person which were made with an agent of such
person in cases in which the agent is still alive and
competent to testify.
Does the rule bar testimonies that are favorable to the
deceased?
No, facts favorable to the deceased are not
prohibited because the statutes are designed to
protect the interests of a deceased or incompetent
person, they do not operate to exclude testimony
which is favorable to the representative of such
party
29
Can the dead man’s rule be waived?
Yes
How can it be waived?
If there is no objections on the part of the other
party
Can the testimony of the plaintiff regarding what the
deceased person ____ to contradict what the evidence for his
defense said, can that be allowed?
(I can’t understand this question)
Yes
Will it submit the plaintiff to present evidence concerning
what the accused did before he died?
Yes, because the plaintiff waived the objection, they
(I
present testimony about what the deceased did.
can’t understand this question)
Objections to the competency of the adverse party may be
waived by the introduction of the testimony of the deceased
or incompetent person which has been preserved in a bill of
exceptions, or by the presentation of such testimony or
testimony of the adverse party which has been taken at a
(It seems like this is what he tries to point out)
former trial or hearing.
The testimony beckons at the time of the trial rather than at
the time of the filing of the action
Section 24. Disqualification by reason of privileged communication. — The
following persons cannot testify as to matters learned in confidence in the
following cases:
(a) The husband or the wife, during or after the marriage, cannot be
examined without the consent of the other as to any
communication received in confidence by one from the other
during the marriage except in a civil case by one against the other,
or in a criminal case for a crime committed by one against the
other or the latter's direct descendants or ascendants;
(b) An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to him, or
his advice given thereon in the course of, or with a view to,
professional employment, nor can an attorney's secretary,
stenographer, or clerk be examined, without the consent of the
client and his employer, concerning any fact the knowledge of
which has been acquired in such capacity;
(c) A person authorized to practice medicine, surgery or obstetrics
cannot in a civil case, without the consent of the patient, be
examined as to any advice or treatment given by him or any
information which he may have acquired in attending such
patient in a professional capacity, which information was
necessary to enable him to act in capacity, and which would
blacken the reputation of the patient;
(d) A minister or priest cannot, without the consent of the person
making the confession, be examined as to any confession made to
or any advice given by him in his professional character in the
course of discipline enjoined by the church to which the minister
or priest belongs;
(e) A public officer cannot be examined during his term of office or
afterwards, as to communications made to him in official
confidence, when the court finds that the public interest would
suffer by the disclosure.
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Who are disqualified from giving testimonies with respect to
privilege communication?
Section 24
What is the purpose of this rule to protect the privilege
communication?
Each recognized privilege reflects a public policy
determination that the protection of the particular
relationship or interest involved is more important
than the testimony that the witness might otherwise
give. The truth may be discovered by other means
but not by this means. It is not a total prevention of
inquiry but only a narrow fact.
How is this rule on disqualification be construed?
Strictly in favor of confidentiality
Why strictly construed?
Because this prevents freedom of inquiry to
minimize possible conflict.
Can this privileges be invoked by person other than there
direct beneficiaries?
Yes, even if the right does not belong to them;
because this privilege is waivable the person against
whom the testimony is given if absent cannot waive,
so even the court can in the meantime suspend the
presentation of evidence. So if the lawyer is there he
can invoked such privilege until the person or the
holder of privilege waived it himself.
Court or other party may assert, although a privilege is
personal, if neither the holder of the privilege is pre present
when the testimony is sought to be introduced, then the
court on its own motion, or in the motion of any party, must
exclude the testimony subject to the claim of privilege
May the witness to whom the communication is made, can
such witness testify if the holder of such privilege is dead?
Such witness can invoke the privilege, because such
privilege survives death
Privileges generally survives the death of the holder, the
persons authorized can assert such privilege or waived it.
Section 24. Disqualification by reason of privileged communication. — The
following persons cannot testify as to matters learned in confidence in the
following cases:
(a) The husband or the wife, during or after the marriage, cannot be
examined without the consent of the other as to any
communication received in confidence by one from the other
during the marriage except in a civil case by one against the other,
or in a criminal case for a crime committed by one against the
other or the latter's direct descendants or ascendants;
30
How does the privilege of communication to husband and
wife apply?
Requisites:
• The spouses must have been legally married
• That the privilege is claimed, with regard to
communication, oral or written made
during the marriage
• The said communication was made
confidentially
• That the action or proceeding where the
privilege is claimed is not by one spouse
against the other
What if consent is given by one spouse affected by the
testimony?
The rule will not apply
If the communication was made after the marriage is not
covered by this rule but if the testimony is offered after the
marriage but such communication in relation of such
testimony was made during the marriage, it is covered by this
rule.
What are the exceptions?
• If a civil case is filed by one against the other, or
• in a criminal case for a crime committed by one
against the other or the latter's direct descendants
or ascendants
What is the reason for the privilege of communication
between spouses?
This privilege is intended to protect confidential
communications between spouses.
Scope of communications includes verbal, written and actions
done in the presence of the other as long as they are
expressions intended by one spouse to convey the meaning
or message to another.
E.G counting of money in the presence of the wife which later
became subject of litigation.
How about surreptitious acts of one spouse indicating an
attempt to from his wife be regarded as confidential
communication?
It is not privilege, because there is no intention to
communicate
Is there a presumption of confidentiality of information
between husband and wife?
Yes, the communication between spouses are
presumed to be confidential
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
If third persons are present, are they presumed confidential?
• Communications overheard by third person without
knowledge of the spouses is still confidential but the
third party is not disqualified (the third person can
testify even if it confidential)
• Communication made in the presence of third
persons with their knowledge, is not confidential.
NOTE: in both cases, regardless if there is knowledge on the
part of the spouse that third persons are listening even if it is
confidential, the third person can testify.
EVID9
When spouses in conspiracy to commit a crime, are there
discussion is privilege?
No, conversations between husband and wife about
crimes in which they are jointly participating when
the conversations occur are not marital
communications for the purpose of the marital
privilege, and thus do not fall within the privilege’s
protection of confidential marital communications
Can you compel the wife to testify against the husband, if
both of them are accused?
No, an accused have an absolute right not to testify
in a criminal case for himself or for whomever.
How about in a civil case, if there is a civil action and there is
an allegation of civil fraud committed by both spouses, can u
compel one of the defendants to testify against the other?
No, if the one spouse does not want to.
But voluntarily, can the wife testify without the consent of the
husband in a civil action for fraud?
Yes, because the communication is not privilege if
the wife is willing to testify
Does the privilege apply with respect to the wife’s observation
of the physical or mental condition of her husband?
No privilege applies as the either spouse’s
observations as to the physical or mental conditions,
actions, or conduct of the other spouse, because no
communication is involved. The key here is whether
or not it is intended to be confidential. Example:
tattoo.
Are communications between spouses before they were
married considered as a privileged?
No, because there is no confidentiality yet. The
communication must be made during the marriage.
How about communications after the marriage (divorced)?
It’s no longer confidential
31
Supposing the marriage subsist but the spouse is separated,
would any conversation between the separated spouses
covered by the privilege?
It depends; the privilege does not apply when the
parties are living in separation and especially where
there is an active hostility between them, without
any hope for reconciliation. But if there is hope of
reconciliation, the privilege confidence can be
recognized
Suppose the husband tells his wife a secret, and the wife tells
rd rd
the secret to a 3 person, can this 3 person testify about
what the wife told him?
Where there is collusion and voluntary disclosure to
third person- the latter becomes an agent and
cannot testify
If the husband gives some of his letter to his mistress and such
letters were communications between him and his wife, can
the mistress make that letter available in a case?
The husband can no longer invoke the privilege
because there is a waiver on his part
Would this privilege apply to acts committed by the husband
rd
in the presence of 3 parties? Example: when the husband
went to church
The privilege does not apply to facts which came to
the knowledge of the witness by means equally
accessible to other persons, and not disclosed in
conversation with other person.
To whom this privilege belongs? Does it belongs to the
utterrer or to the person who heard what was uttered?
It has been held that the confidential communication
privilege belongs to spouse.
What is the difference between privilege communication and
marital disqualification?
• The privilege is applicable regardless of whether the
spouses are parties or not while Marital
disqualification is applicable only when one or both
spouses are parties.
• The privilege applies to testimonies on confidential
communication only while marital disqualification
applies to testimony of any fact
• The privileged communication lasts even after the
death of either spouse while marital disqualification
ceases after dissolution of marriage
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Section 24. Disqualification by reason of privileged communication. — The
following persons cannot testify as to matters learned in confidence in the
following cases:
(b) An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to him, or
his advice given thereon in the course of, or with a view to,
professional employment, nor can an attorney's secretary,
stenographer, or clerk be examined, without the consent of the
client and his employer, concerning any fact the knowledge of
which has been acquired in such capacity;
What is the scope of privileged communication between
attorney and his client? What is covered by attorney-client
privilege?
An attorney cannot, without the consent of his
client, be examined as to any communication made
by the client to him, or his advice given thereon in
the course of, or with a view to, professional
employment, nor can an attorney's secretary,
stenographer, or clerk be examined, without the
consent of the client and his employer, concerning
any fact the knowledge of which has been acquired
in such capacity
Does it cover only the attorney?
No, it covers the client and the attorney’s secretary,
stenographer, or clerk
What is the purpose of this privilege?
To encourage full disclosure by a client to her
attorney of all pertinent matters, so as to further
administration of justice
What is the consequence to the lawyer if such lawyer
discloses the privilege communication and of the client?
He may be held liable for violation of Article 209 of
the Revised Penal Code- Betrayal of trust by an
attorney or solicitor for revelation of any of the
secrets learned by him in his professional capacity is
punishable
What are the requisites?
• Relationship of lawyer and client. This includes
persons appointed as counsel de oficio
• There must be communication by the client to the
attorney; or advice thereon by the latter to the
former
• The communication or advice must have been made
confidentially
Who may claim this privilege?
The client or someone authorized to claim it on his
behalf
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Does this rule protect the attorney?
The rule seeks to give protection, not to the
attorney, but to the client or someone authorized to
claim it on his behalf
May the attorney invoke this rule for the client?
While the privilege belongs to the client alone, the
attorney may claim the privilege on behalf of the
client by refusing, if called as a witness to testify on
the communication until he has obtained the
consent of his client.
Can the client be compelled to testify regarding the
conversation between the client and the attorney?
No, unless there is a waiver
Does the privilege apply if the client is not a party to the
action in which the lawyer is required to testify?
Yes, because what is protected by the rules is the
confidentiality of the communication for whatever
circumstance it would be.
Does the privilege apply where, there is merely an initial
interview between the client and the lawyer and eventually
their professional relationship did not prosper?
Yes, actual employment is not, however necessary.
Any communication made in consulting the attorney
is privileged, even if the attorney later declines the
case or the client decided against hiring the attorney
Supposing the lawyer is not actually a lawyer, that may be a
para-legal, is that covered by the privilege?
It is covered by the privilege provided that the client
reasonably believes that the para-legal is authorized
to practice law or is a lawyer
To whom lies the burden on establishing the privilege exist?
The burden of proof rests on the person asserting
the privilege
Does the privilege applies only if the service of the lawyer is
for compensation?
The client may claim the benefit of the rule although
no fee has been paid.
Does the privilege apply if the client consulted the lawyer as a
friend?
No, because the intention must be to consult as a
lawyer
Does the occupation have to have a connection with a
particular litigation?
The privileged of the client is not confined to
communications which have passed in respect of
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cases that are actually pending; the litigation may be
pending or only anticipated, or it may have
terminated.
Will this privilege cover not only verbal communications but
acts that the client performed in the presence of the attorney?
Yes, provided that such actions is conveyed or
intended to be a message
Where the client delivered a stolen property to his lawyer, can
the court query the lawyer regarding that stolen property?
No, because the privilege of attorney-client
relationship covers crimes committed in the past, in
this case, if the property is already stolen it is
covered.
If the client have a deed of sale to his lawyer, will the deed of
sale be regarded as a privilege communication? Can the
lawyer be compelled to produce the deed of sale?
As a rule, an attorney cannot be compelled to
produce or disclose the contents of a document
entrusted to him by his client.
If the client gives his lawyer some instructions wherein the
lawyer was asked to look for a notary public for the deed of
sale be notarized, will that be confidential?
Yes, it is privilege instruction
If the client tells the lawyer “please tell the prosecutor to take
easy on me” is that privilege?
No, because such statement was not intended for
the lawyer but for the prosecutor
The lawyer sends an email to his client but such email was
received by somebody else, is the communication privilege?
A mere showing that the communication was from
client to attorney does not suffice, but the
circumstances indicating the intention of secrecy
must appear. The situation is like another person
overhearing. Wherever the matters communicated
to the attorney are intended by the client to be
made public or revealed to third persons, obviously
the element of confidentiality is wanting.
Does the privilege continue in case of litigation between the
client and his attorney?
No, the seal is removed from the attorney’s lips
May the client require his lawyer to testify in court to reveal
the communication between him and his lawyer?
Yes, it will be deemed a waiver on the part of the
client.
Since the attorney-client privilege is for the benefit
of the client it may be waived by the client, and the
33
attorney is bound by the client’s waiver and has no
choice thereafter but to testify.
Does the lawyer has the right to waive the privilege by
testifying concerning the communication between him and his
client?
No, the client has the privilege, the attorney has no
right to waive the privilege except to the extent that
he is authorized to do so on behalf of his client
After the client dies may the privilege be waived by the heirs
of the client?
Yes, after the decease of the client, the privilege may
be waived by his representatives (executors.
Administrators)
Section 24. Disqualification by reason of privileged communication. — The
following persons cannot testify as to matters learned in confidence in the
following cases:
(c) A person authorized to practice medicine, surgery or obstetrics
cannot in a civil case, without the consent of the patient, be
examined as to any advice or treatment given by him or any
information which he may have acquired in attending such
patient in a professional capacity, which information was
necessary to enable him to act in capacity, and which would
blacken the reputation of the patient;
What rule governs the privilege communication between a
physician and his patient?
A person authorized to practice medicine, surgery or
obstetrics cannot in a civil case, without the consent
of the patient, be examined as to any advice or
treatment given by him or any information which he
may have acquired in attending such patient in a
professional capacity, which information was
necessary to enable him to act in capacity, and
which would blacken the reputation of the patient
Does this apply to criminal case?
No, only in civil
Requisites:
• The privilege is claimed in a civil case
• The person against whom the privilege is claimed is
one duly authorized to practice medicine, surgery or
obstetrics
• Such person acquired the information while he was
attending to the patient in his professional capacity
• The information was necessary to enable him to act
in that capacity
• The information was confidential, and, if disclosed,
would blacken the reputation of the patient.
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What communication is covered by the privilege, concerning
what?
Advices, nature of treatment, medication prescribe
or any information which he may have acquired in
attending such patient in a professional capacity.
What consequence does the rule is trying to avoid?
Which would blacken the reputation of the patient
What is the reason for this privilege?
Intended to facilitate and make safe full and
confidential disclosure by the patient to the
physician of all facts, circumstances, and symptoms,
untrammeled by apprehension of their subsequent
and enforced disclosure and publication on the
witness stand, to end that the physician may form a
correct opinion, and be enabled safely and
efficaciously to treat his patient. It rests in public
policy and is for the general interests of the
community.
May the patient waive this privilege?
Yes, it may be waived if no timely objection is made
to the physician’s testimony
It only applies to civil cases not to criminal cases
Does the physician have to be a licensed physician?
Yes
When is a physician regarded as acting professionally with
respect to his patient?
The physician may be considered to be acting in his
professional capacity when he attends to the
patient’s for curative, preventive or palliative
treatment.
One who claims this privilege must prove the presence of the
requisites
So if the patient went to the physician for the purpose of
getting insurance such communication is not privilege
because the purpose is not for treatment but for insurance
Can the physician be asked “did you treat the patient?”
Objection: privilege
It is not privilege
Does this privilege covers dentist?
No, unless he acted as an assistant of a medical
doctor
Nurses, interns and assistant are covered provided that they
are assisting the medical physician
34
Supposing the judge sent a government employee to check if
the witness is really sick that he cannot attend the trial, is the
testimony of the physician who was sent by the judge is
privilege?
No, because the purpose is to repost the condition
of the patient (witness)
Sidewalk advice from a physician upon a medical condition
such privilege is not privilege
Does the privilege bar the physician’s testimony concerning
matters that has no reference to the condition of the patient?
No, it is not privilege
Does the death of the patient during the treatment ends the
privilege character of the communication?
No, the information which has been gained by
physicians by observations while attempting
unsuccessfully to resuscitate a patient is privilege
How about the information obtained by a doctor conducting
an autopsy of the patient?
No, the information which has been acquired by
physicians in making autopsies and post-mortem
examinations are not privilege because corpse
cannot be a patient, the dead cannot communicate.
Suppose the physician draws out prescription for the patient,
may the patient’s wife testify regarding the contents of the
document?
Yes, because the patient’s wife is not covered by the
privilege communication.
May this privilege be waived?
Yes it may be waived either expressly or impliedly
How is it impliedly waived?
Waiver by failing to timely object or waiver that
result from the fact that the patient has testified to
the confidential matter in the course of his
examination in chief, thus opening the door to
inquiry of the physician into the whole subject
Supposing that the patient testified regarding the physical
condition or state of health, would that amount to waiver
when the physician is called to testify about the patient’s
being well or not?
It is not a waiver unless the patient goes to the
details on how the physician attended to him. Mere
testifying as to the patient’s physical condition or
state of health is not a waiver unless the patient
goes into details regarding the nature of his injuries,
testifying as to what the physician did or said while
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in attendance, or as to his communications to the
physicians
The physician-patient privilege may also be waived in
advance of trial by a disclosure of the privileged information
either made or acquiesced in by the privilege holder.
If several doctors attended the patient, does the privilege
applies to all doctors?
Yes
If the patient waives the privilege to one physician does it
amounts to waiver to the entire physician?
Yes, if several doctors participated jointly in the
same consultation or course of treatment, the calling
of one to disclose part of shared information waives
objection to the adversary’s calling any other of the
joint consultants to testify about the consultation,
treatment or the results thereof
If the witnesses die can the privilege by his successors?
The privilege continues after death of the patient, it
may then be waived by the personal representative
of the decedent
Section 24. Disqualification by reason of privileged communication. — The
following persons cannot testify as to matters learned in confidence in the
following cases:
(d) A minister or priest cannot, without the consent of the person
making the confession, be examined as to any confession made to
or any advice given by him in his professional character in the
course of discipline enjoined by the church to which the minister
or priest belongs;
What rule governs the communication of a priest and
penitent?
A minister or priest cannot, without the consent of
the person making the confession, be examined as
to any confession made to or any advice given by
him in his professional character in the course of
discipline enjoined by the church to which the
minister or priest belongs
Requisites:
• There must be a priest and penitent
• There must be a confession (penitential in character)
• The confession must have been made to the priest in
his professional character in the course of discipline
enjoined by the church to which he belongs
May the penitent be compelled to disclose his confession?
No, a penitent cannot be compelled to disclose his
confession
35
A third person who overheard the confession is not
disqualified
A court may not require the disclosure of a confession to a
clergyman to determine whether it is privileged, but must
determine the question from the circumstances and facts
leading up to the making of the confession.
Section 24. Disqualification by reason of privileged communication. — The
following persons cannot testify as to matters learned in confidence in the
following cases:
(e) A public officer cannot be examined during his term of office
or afterwards, as to communications made to him in official
confidence, when the court finds that the public interest would
suffer by the disclosure.
When does a public officer not be compelled to disclose
official matters?
A public officer cannot be examined during his term
of office or afterwards, as to communications made
to him in official confidence, when the court finds
that the public interest would suffer by the
disclosure.
When can confidential official matter be disclosed?
When it is a matter of public interest
Who will determine if it is a matter of public interest?
The court
What is the reason for this privilege?
General grounds of public policy
Supposing in the SC they deliberate a case of murder, can the
justices who are part of the deliberation be compelled to
testify regarding the deliberation? Collegial discussion….
No, it is strictly confidential.
The result of the meeting of the collegial body is not
confidential
Witness in litigation…..
The privileged of a public officer not to reveal information is
strictly construed because the rule is openness
Requisites
• The holder of the privilege is the government, acting
through a public officer
• The communication was given to the public officer in
confidence
• The communication was given during the term of
office of the public officer or afterwards
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• The public interest would suffer by the disclosure of
the communication
May the court compel a prosecutor to present an informer?
The prosecutor may not be compelled to present an
informer to protect his identity and when his
testimony would be merely corroborative or
cumulative.
EVID10
Section 25. Parental and filial privilege. — No person may be compelled to
testify against his parents, other direct ascendants, children or other direct
descendants.
What rule governs Parental and Filial privilege?
No person may be compelled to testify against his
parents, other direct ascendants, children or other
direct descendants.
Can this person voluntarily testify?
Yes, compelling them to testify is the one prohibited
Does the rule apply in both Civil and Criminal Cases?
Yes
Does the rule apply with illegitimate descendants or
ascendants?
No, the privilege applied only to legitimate family
Section 26. Admission of a party. — The act, declaration or omission of a
party as to a relevant fact may be given in evidence against him.
What admissions of a party may be given in evidence against
him? In the form of what?
The act, declaration or omission of a party as to a
relevant fact may be given in evidence against him.
Admission is any extra-judicial statement or conduct by a
party to the present litigation that is inconsistent with a
position the party presently takes
Are all admissions admissible against a party?
No, those admissions which have to do something
with the issue with the case.
What effect on the party making an admission?
As a rule, negative effect on the party making
admission with respect to the case.
Sometime a person makes a statement that is both favorable
and against him, would admissions favorable to him that
accompanied the admission against him would also be
considered in his favor?
36
No, only those admission that is against him.
Admissions made in favor of the party making such
admissions is self-serving.
Does this admission cover judicial admissions?
No, judicial admission are formal concessions in the
pleadings or stipulations by a party in the course of
the proceeding.
This kind of admission (Sec 25, Rule 130) where is it made?
Made outside the court
Why is it that a party’s admission that is against him with
respect to the case is admissible although it can be considered
as hearsay evidence?
As a rule of human nature, a person will not say
anything against himself. Nobody is going to lie
about something against his interest.
Is an admission made by an employee in connection with his
employment and against the interest of the employer
admissible against such employer?
Yes, because it is impliedly presumed with respect to
the relation of an employee and employer with
respect to the matter he is paid for is that the
employee is acting as an agent of his employer
acting within the scope of his duty.
May a plaintiff file an action to the defendant, for the
defendant’s failure to pay his debt. The defendant says “I
don’t owe u anything” but a witness presented by the plaintiff
testified that he heard the defendant says “I owe money to
the plaintiff.” Is the testimony of the witness is hearsay
evidence and therefore inadmissible against the defendant?
It is inadmissible because the person on whom the
statement is heard cannot be cross-examined.
The testimony of the witness “I heard the defendant
said that he owes money from the plaintiff”, it is the
defendant who will say that such testimony is a
hearsay. He will object that the testimony is hearsay
because the defendant can deny the utterance. The
defendant can say “I did not say that.”
Is it necessary for the party offering an admission made by
another party to show that the party who made the
admission has personal knowledge of the fact that he is
taking?
A party’s admission will be competent evidence
against that party even though she did not actually
have personal knowledge of the facts admitted
because it is presumed that a party will make an
admission against himself even if he is not sure
about the facts.
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The witness heard the defendant says “he has a weak defense
in this case that was filed against him” is such testimony
admissible against the defendant?
No, such statement made by the defendant as
testified by the witness is a conclusion or judgment,
it is not an admission of a fact. A question of
evidence is always a factual issue. An admission
must refer to admission of facts not admissions of
conclusions.
As a rule self-serving statements is not admissible as
evidence, why is it not admissible? Example: a witness said “I
heard that the accused said that he is not guilty of the crime.”
Because people tends to say things in their favor
Are diaries admissible as evidence?
It depends: If what is stated in the diaries are against
the author but if it is in his favor, it is not admissible
Diaries as a rule inadmissible because they are self-
serving in nature.
When does self-serving statements admissible as evidence?
• When they form part of the res gestae, including
spontaneous statements, and verbal acts
• When they are in the from of complaint and
exclamation of pain and suffering
• When they are part of a confession offered by the
prosecution
• Where the credibility of the party has been assailed
on the ground that his testimony is a recent
fabrication, in which case his prior declaration, even
of self-serving character, may be admitted, provided
that they were made at a time when a motive to
misinterpret did not exist.
• Where they are offered by the opponent
• When they are offered without objection, the
evidence cannot afterwards be objected to as
incompetent
The accused wrote his brother in law asking for forgiveness;
requesting his sister to withdraw the complaint against him
and he was not at fault, can this letter asking for forgiveness
can be admitted as evidence in favor of the accused wrote it?
No, such letter is self-serving but with exception with
the statement of asking for forgiveness which is
incriminating against him.
The defendant admitted that he was acting negligently, and
causing injuries to another but he admits that he is insured
anyway. Is that admission admissible as evidence?
Yes
Example: Admission can be inferred from conduct
Pay the interest, means u owe a principal
37
Acts that indicate guilt
• Attempts to conceal or destroy damaging evidence
• Attempts to bribe the arresting officer
• Flight from the crime scene
• After the crime the accused is excited (it depends)
For example, somebody slide from the stairs and in the
following week the management put something on the stairs
to prevent slippery. What inference can be made if after an
accident that the defendant made repairs or adopt new
precaution? Is there an inference of guilt?
None, in actions based on negligence, an inference
of negligence is often sought to be drawn from the
fact that subsequent to the happening of the
injurious occurrence, the defendant has repaired the
alleged defect or adopted some new precaution. For
reasons of public policy such evidence is generally
inadmissible, the defendant may say that he
adopted additional precaution.
Repairs done subsequent to the action, can it be admitted not
for the purpose of negligence but for some other purpose?
Yes, applying the Principle of Multiple Admissibility.
Such repairs may be a proof of ownership
Does the making repair to the property of another be taken as
an admission by the person making repairs is at fault?
Yes, it may be an admission of liability by conduct
Section 27. Offer of compromise not admissible. — In civil cases, an offer of
compromise is not an admission of any liability, and is not admissible in
evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal negligence)
or those allowed by law to be compromised, an offer of compromised by the
accused may be received in evidence as an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to
lesser offense, is not admissible in evidence against the accused who made
the plea or offer.
An offer to pay or the payment of medical, hospital or other expenses
occasioned by an injury is not admissible in evidence as proof of civil or
criminal liability for the injury.
Is an offer of compromise an admission of liability?
It depends, in civil cases, an offer of compromise is
not an admission of any liability, and is not
admissible in evidence against the offeror. In
criminal cases, except those involving quasi-offenses
(criminal negligence) or those allowed by law to be
compromised, an offer of compromised by the
accused may be received in evidence as an implied
admission of guilt.
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
Why is it that an offer of compromise in civil action is not
admissible as evidence?
Two grounds for the rule of admissibility are
advanced: lack of relevancy and policy
considerations
• The relevancy of the offer will vary
according to circumstances, with a very
small offer of payment to settle a very large
claim being much more readily construed as
a desire for peace rather than an admission
of weakness of position. Relevancy would
increase, however, as the amount of the
offer approaches the amount claimed.
• The policy aspect is to promote the settling
of disputes, which would be discouraged if
offers of compromise were admitted.
But why not in a criminal action?
Because the liability of the accused is not against the
person but against the state
Supposing there is a traffic accident involving a taxi and a
jeepney, during the negotiation for the settlement of the
accident, the jeepney driver makes a statement that he made
a bad turn which resulted in the accident, will this statement
during the negotiation be admitted as evidence against him?
If a party during the compromise negotiations
admits a fact to be true because it is a fact, and not
because he is willing to treat it as a fact for the
purpose of the then pending compromise, it may be
properly be shown in evidence.
What is the effect of an offer of compromise in a criminal
case?
An offer of compromise by the accused constitutes
additional evidence against their innocence except if
the offense committed is quasi-offenses
What are quasi-offenses?
Those tortuous actions, based of negligence and
those allowed by law to be compromised (estafa
cases and some property cases)
Is a plea of guilty later on withdrawn over an accepted plea of
guilty to a lesser offense, admissible as evidence against the
accused?
No, because this could be a part of plea bargaining
Is an offer to pay medical, hospital or other expenses
occasioned by an injury admissible in evidence as a proof of
civil or criminal liability for that injury?
No, such offers may have been prompted solely by
humanitarian motives (Good Samaritan rule)
38
Section 28. Admission by third party. — The rights of a party cannot be
prejudiced by an act, declaration, or omission of another, except as
hereinafter provided.
What is the rule on res inter alios acta?
You can be prejudiced by what somebody else, her
or him. The rights of a party cannot be prejudiced by
an act, declaration, or omission of another
Why is it a reasonable rule of evidence? Example: a debtor,
then the debtor’s friend heard that the debtor is indebted and
makes an offer to pay the debt to the creditor but it was not
settled, can the action of the debtor’s friend wanting to pay
the debtor’s obligation be evidence against the debtor?
No, because the one admitted that the debtor has a
debt is the friend, so his actions cannot be taken
against the debtor unless there is a privy to the
debtor’s action. Like he is acting as the debtor’s
agent.
What are the exceptions to the rule that admissions by the
third party are evidence against a party to a case?
Admission by:
• Partner
• Agent
• Joint owner
• Joint debtor
• Has joint interest with a party
• Co-conspirator
• Privy of the party
Section 29. Admission by co-partner or agent. — The act or declaration of a
partner or agent of the party within the scope of his authority and during the
existence of the partnership or agency, may be given in evidence against
such party after the partnership or agency is shown by evidence other than
such act or declaration. The same rule applies to the act or declaration of a
joint owner, joint debtor, or other person jointly interested with the party.
When is an admission by a co-partner or agent admissible
against a party?
The act or declaration of a partner or agent of the
party within the scope of his authority and during
the existence of the partnership or agency, may be
given in evidence against such party after the
partnership or agency is shown by evidence other
than such act or declaration.
Requisites:
• The act or declaration of a partner or agent of the
party
• Within the scope of his authority
• During the existence of the partnership or agency
• After the partnership or agency is shown by
evidence other than such act or declaration
• May be given evidence against such party
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What evidence is needed with respect to the partnership or
agency?
There must be proof as to the existence of the
partnership or agency independent of the admission.
What relationship for this rule to apply aside from partnership
or agency?
The same rule applies to the act or declaration of a
joint owner, joint debtor, or other person jointly
interested with the party.
Are entries made in the partnership book made by one party
admissible against his co-partner?
Yes, entries in the partnership books made by one
party during the continuance of the partnership are
admissible against both or all the members of the
firm.
Would the answer be the same, if one party is shown to be
hostile to another partner?
Yes, although one partner is shown to be hostile to
another, such admissions may be received. The
hostility may affect the question of credibility
What is the reason for admission for one party against
another partner?
On the ground that they are identified in interest,
and that each is agent for the other, and that the
acts and declarations of one during the existence of
partnership, while transacting its business and within
the scope of the business are evidence against the
other or others. They have commonality of interest
Are the declarations of a deceased partner during his lifetime
admissible against the other partner?
Yes, statements of a deceased partner are
admissible against the survivors.
Are admissions by a partner keeping only for himself on
matters that is alien to the business admissible?
No, because it is outside the relationship between
partners
Usually, how do u prove partnership independent of the
admissions?
The existence of the partnership may be proved by
the separate admissions of all who are sued, or by
the acts, or declarations and conduct of the parties,
or by the act of one and the declarations or conduct
of others.
39
Is the admission of one partner made not in the presence of
his co-partner admissible as evidence?
No, it is not competent evidence to establish the
existence of a partnership between them against
another partner.
How about a statement of one partner regarding family
affairs of his co-partner?
Not admissible because is does not involve any
relationship in the partnership
What is the remedy if the admission of one partner can be
proved at the time but the evidence of partnership cannot yet
be presented?
By Conditional admissibility, if one evidence is a
prerequisite of another then there can be a
conditional admissibility.
Is the mere commonality of interest between several persons,
for example, a group of persons are all members of the same
subdivision, is an admission of one member of the subdivision
association admissible against other members of subdivision
association?
Yes, provided that the testimony covers their joint
interest but the fact that they are member s of the
same organization does not make the evidence
admissible only if there is a joint interest between
one member to another.
If the joint obligation has been severed by the death of one of
the parties, will the subsequent admission of the survivor as
to past events binds the representatives of the deceased?
No, because the death extinguish the privity of
interest. If one party dies already statement made
after the death is no longer statement made with
privity of interest.
Common interest is not enough but privity of interest is
required.
Is an administrator of an estate considered by reason of his
position, can prejudice the estate by his acts or statements?
The administrator or executor in the estate as such
has no legal interest in the estate as to empower
him to prejudice its interest by statements of third
persons. An administrator generally is not an heir,
unless such administrator is an heir.
Is an admission of one heir regarding the validity of his title
that is adverse to deceased, is such admission admissible to
other heirs?
No, the admissions of one heir, devisee or legatee
are ordinarily not admissible against another coheir,
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co-devisee or co-legatee, as their interest are several
or and not joint.
Is it possible for someone’s declarations who fall short in
meeting the requirements to make them admissible as
evidence against others yet still be inadmissible like it cannot
be admissible as to an other party but it is admissible as to
the utterer?
Yes, but such admissions is against one’s interest but
not admissions against privity of interest
If an agent testifies at the trial in a manner that is adverse to
the principal, is that an admission covered by this rule?
No, because testimony in court is not an admission
covered by this rule, such admission is covered by
judicial admission.
Is an admission by a guardian that is contrary to the interest
of the ward admissible?
No, such statements require a court approval. A
guardian cannot do something adverse to the ward
without court approval. The admissions of a
guardian which mean the sacrifice of the ward’s
property are never held to be binding.
Is an admission by an attorney, if a client retained his
attorney generally; are the declarations of that attorney in a
subsequent case admissible as evidence against the client?
No, because an attorney who is retained generally or
without reference to pending litigation is but an
agent; and his authority to bind his client by
extrajudicial admissions is the same as that of any
other agent; nor is his authority enlarged by the fact
that he is an attorney at law, except in so far as the
fact may reflect upon apparent scope of his agency.
Can a lawyer compromise a client’s case without special
authority from the client?
As a general rule, No
Section 30. Admission by conspirator. — The act or declaration of a
conspirator relating to the conspiracy and during its existence, may be given
in evidence against the co-conspirator after the conspiracy is shown by
evidence other than such act of declaration.
When may an act or declaration of a conspirator may be
taken as evidence against the co-conspirator?
The act or declaration of a conspirator relating to the
conspiracy and during its existence, may be given in
evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act
of declaration.
Does this refer only to utterances?
No, acts or declarations made by a conspirator
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Conspiracy- when 2 or more persons agreed to commit a
crime and decides to commit it.
Generally conspiracy to commit rebellion is not punishable
except conspiracy to commit rebellion
When may the act or declarations of a conspirator be as
evidence against a co-conspirator? (Requisites)
• That the conspiracy be first proved by evidence
other than the act or declaration itself
• That the admission relates to the common object
• That it has been made while the declarant was
engaged in carrying out the conspiracy
Does the rule apply to the testimony of a conspirator in court?
No, because it is an admission made in court
meaning judicial admission, the admission must be
out of court.
A group of persons agreed to kill a victim, but before the act
of killing one of them went to the house of the witness and
borrowed a bolo and one of the killers said “I need your bolo
because we are going to kill that guy (victim).” is the
statement that one of the killers uttered to the witness, is
admissible as evidence against the other killers?
Yes, because the statement of borrowing the bolo
relates to the conspiracy and it was made during the
existence of conspiracy provided that the conspiracy
is established by some other evidence.
In that case how do we establish conspiracy?
By community if intent in their movement example:
they all went together to the house of the victim
Can that evidence of the admission made to the person from
whom he was borrowing a bolo admissible against the other
conspirator if such conspiracy is not proved by other
evidence?
No, there has to be an independent evidence of
conspiracy
Are the statements “we conspired to kill the victim” made by
one of the accused after the crime is committed admissible as
evidence against the co-conspirators?
No, because the admission was made after the
conspiracy. Any declaration made by a conspirator
before there was any conspiracy or after conspiracy
has come to an end, is admissible against him alone
(admission against his interest), but not against his
conspirators.
When does conspiracy usually cease to exist?
After the commission of the crime or the crime has
been abandoned
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Supposing that one of the accused testified in court and he
testified that “it is true that we met in the house of A and we
agreed to commit this crime” is that statement admissible
against his co-accused?
Yes, because it is a testimony made in court not an
admission made out of court, the rule on admission
by conspirator do not apply.
Are statements made after the crime has been committed is
admissible as evidence?
No
4 persons agreed to rob a bank namely A, B, C and D. before
the act of robbery A said to X (third person) that Y (teller) is
there inside man. Is the statement made by A to X that Y is
the inside man is admissible as evidenced against he other
conspirators?
Yes, because there was already an agreement to
commit a crime although the crime has not been
committed provided that the conspiracy is proved by
other evidence apart from the statement.
Does the proof of the agreement of the conspirators have to
be direct evidence?
Conspiracy must be shown to exist by direct or
circumstantial evidence.
If a conspiracy was formed between A, B, and C, and then D
came in only later to join them, does the acts done before D
joins is imputable against him or evidenced against him?
Yes, because acts done by one conspirator is
considered as acts done by his co-conspirators
If one conspirator is just outside and the agreement was to
rob the bank but one of the conspirators killed somebody, will
the conspirator outside be held liable for the killing of the
victim done by one conspirator?
Yes
Is conspiracy a product of negligence?
No, conspiracy is not a product of negligence but of
intentionality on the part of the cohorts
Is proof of overt act of a conspirator in relation to the crime
agreed upon needed?
Yes, it is essential for one to be a party to a
conspiracy as to be liable for the acts of the others
that there be intentional participation in the
transaction with a view to the furtherance of the
common design. Except when he is a mastermind in
a conspiracy, it is necessary that a conspirator should
have performed some overt act as a direct or
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indirect contribution in the execution of the crime
planned to be committed.
Will the mere presence of an accused of the dicsussuon of the
crime and even he approve it also but such accused did not
take an active part in committing the crime, is that sufficient?
No, mere presence of an accused at the discussion of
the controversy, even approval of it without any
active participation in the same is not enough for
purposes of conviction.
Can u present the act or declaration of one conspirator even
before u be able to prove conspiracy independently of that
acts or declarations?
Yes, applying principle of conditional admissibility
Section 31. Admission by privies. — Where one derives title to property from
another, the act, declaration, or omission of the latter, while holding the
title, in relation to the property, is evidence against the former.
What is the rule regarding admission by privies?
Where one derives title to property from another,
the act, declaration, or admission of the latter, while
holding title, in relation to the property, is evidence
against the former.
Is a statement of a seller of a property and such statement
concerning the invalidity of the title before he sells it, is such
statement admissible against the buyer?
Yes, because the seller is still the owner of the
property, while holding the title is evidence against
the successor
Privy- stepped into the shoes of another person. The
successor is substituted in the place of the predecessor in
interest
Seller-Buyer
What is the reason of this rule where the statements or acts
made by the previous owner are binding upon the new
owner? Why is it taken as of good value or reliable? Why is
the statement of the previous owner believable or credible?
Because the statement is made against his own
interest when he was still the owner
When a statement is received as an admission, is it necessary
that the previous owner is already dead?
No, he can still be alive and it is still be an evidence
against he new owner. Death is immaterial
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Are the admissions that the seller made against the property
after the sale is made admissible against the new owner?
No, it cannot be said that the admission by the
previous owner is against his interest
Section 32. Admission by silence. — An act or declaration made in the
presence and within the hearing or observation of a party who does or says
nothing when the act or declaration is such as naturally to call for action or
comment if not true, and when proper and possible for him to do so, may be
given in evidence against him.
Declarations made by one party to the other relative to the
subject matter in controversy, and not denied by the latter,
may be admissible against the silent party if the
circumstances were such that a reply of denial would
normally expected.
Requisites:
• That he heard and understood the statement
• That he was at liberty to interpose a denial
• That the statement was in respect to some matter
affecting his rights or in which he was then
interested, and calling, naturally, for an answer
• That the facts were within his knowledge
• That the fact admitted or the inference to be drawn
from his silence would be material to the issue
The rule on admission by silence applies where a person was
surprised in the act or even if he is already in the custody of
the police.
Voluntary participation in a reenactment of the crime
conducted by the police is considered a tacit admission of
complicity
The rule does not apply if the statements adverse to the party
were made in the course of an official investigation or where
the party had a justifiable reason to remain silent, as where
he was acting on advice of counsel.
A person under an investigation for the commission of an
offense has the right to remain silent and to be informed of
that right.
The silence of an accused under custody, or his failure to
deny statements of another implicating him in a crime,
especially when such accused is neither asked to comment or
reply to such implications or accusations, cannot be
considered as a tacit confession of his participation in the
commission of the crime
The rule applies to adverse statements in writing if the party
was carrying on a mutual correspondence with the declarant
42
The silence of a person to be taken as an implied admission of
the truth of allegations uttered in his presence applies both in
criminal and civil cases
Evidence of a party’s failure while on the stand at a
subsequent trial to deny or explain accusatory statements by
the court at a former trial of the cause is admissible as an
implied admission.
The rule on admission by silence was, applied to the failure of
the complainant in a rape case to rebut the claim of the
accused who was charged with rape that the sexual
intercourse between him and the complainant was voluntary
The rule is not applicable against an accused in a criminal
case. No inference of guilt may be drawn against the accused
upon his failure to make a statement of any sort. The neglect
or refusal of the accused to be a witness shall not in any
manner prejudiced or be used against him.
The principle is frequently applied in criminal cases where
accusations by the victim made in the presence of the
accused under such circumstances as naturally to call for
denial are held to have evidentiary value as admissions by
silence. The same is true where the accusation is made by an
accomplice.
The admission drawn from the silence of a person charged
with homicide that he is a thief would not be material to the
issue of homicide, and should not therefore be allowed in
evidence as an admission by silence.
In civil cases, unreasonable delay in the enforcement of
claims is an implied admission of lack of merit
While delay, however, in the commencement of a criminal
prosecution creates a suspicion upon the sincerity of the
complaining witness, it has likewise been repeatedly held that
delay or vacillation in making an accusation does not impair
the credibility of the witness if such delay is satisfactorily
explained.
The witness’s failure to promptly come out with such
information to the police casts a serious doubt on the
accuracy if not the veracity of the identification of accused
later made by such witness
The prosecutions witness reluctance to testify at once for the
prosecution should not be regarded as corrosive of his
account of the killing since the initial reluctance of witnesses
to volunteer information about a criminal case and their
unwillingness to be involved in criminal investigations for
such justified reasons is of common knowledge and has been
judicially declared as insufficient to affect credibility
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If one party to the litigation has written a letter to the other
giving his version of the transaction is dispute, the mere
omission of the recipient to reply to the letter is not to be
deemed to be an admission of the truth of the matter therein
stated.
But business letters that normally would call for a reply of
denial if the statements in the letters were untrue may
impose a factual admission upon the addressee if he fails to
reply in a normal course
Failure to answer a letter would be an implied admission of
more probative force when the letter contains a statement of
account
Where an account has been rendered and no objection has
been made within a reasonable time, this is an admission by
the party charged that the account is correct. But of course
the presumption of assent may be rebutted.
Section 33. Confession. — The declaration of an accused acknowledging his
guilt of the offense charged, or of any offense necessarily included therein,
may be given in evidence against him.
Confession – a categorical acknowledgement of guilt made by
an accused in a criminal case, without any exculpatory
statement or explanation
If the accused admits having committed the act in question
but alleges a justification therefor, the same is merely an
admission.
There can be also be a confession of judgment in a civil case
where the party expressly admits his liability
Confession may either be oral or in writing, and if in writing, it
need not be under oath
Judicial confession- one made before a court in which the
case is pending and in the course of legal proceedings therein
and, by itself, can sustain a conviction even in capital offenses
Extrajudicial confession- one made in any other place or
occasion and cannot sustain a conviction unless corroborated
by evidence of the corpus delicti (remains of a committed
crime)
Requisites
• The confession must involve an express and
categorical acknowledgement of guilt
• The facts admitted must be constitutive of a criminal
offense
• The confession must have been given voluntarily
43
• The confession must have been intelligently made,
the accused realizing the importance or legal
significance of his act
• There must have been no violation of Sec. 12 Art III
of the 1987 Constitution
Confession are presumed to be voluntary and the onus
(burden) is on the defense to prove that it was involuntary for
having been obtained by violence, intimidation, threat or
promise of reward or leniency.
Involuntary or coerced confessions obtained by force or
intimidation are null and void
Where the verbal extrajudicial confession was made without
counsel, but it was spontaneously made by the accused
immediately after the assault, the same is admissible not
under the confession rule but as part of the res gestae
(circumstances incidental to an act litigated)
When the accused was merely told of his constitutional rights
and asked if he understood what he was told, but he was
never asked whether he wanted to exercise or avail himself
of such rights, his extrajudicial confession is inadmissible
Where the accused voluntarily made a second extrajudicial
confession after he had been maltreated in order to extort
the first confession, such second confession is admissible only
if it can be proved that he was already relieved of the fear
generated by the previous maltreatment
Where the extrajudicial confession was obtained by
maltreatment, the judgment based solely thereon is null and
void, and the accused may obtain his release on a writ of
habeas corpus
That extrajudicial confessions independently made without
collusion which are identical with each other in their essential
details and are corroborated by other evidence on record are
admissible, as circumstantial evidence, against the person
implicated to show the probability of the latter’s actual
participation in the commission of the crime.
The prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use
of procedural safeguards effective to secure the privilege
against self-incrimination.
Prior to any questioning, the persons must be warned that he
has a right to the presence of an attorney, either retained or
appointed.
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There is no bar to a waiver of right to counsel during custodial
interrogation if made intelligently and voluntarily, with full
understanding of its consequences
At the time a person is arrested, it shall be the duty of the
arresting officer to inform him of the reason for the arrest
and he must be shown the warrant of arrest, if any. He shall
be informed of his constitutional rights to remain silent and
to counsel, and that any statement he might make could be
used against him. The person arrested shall have the right to
communicate with his lawyer, a relative, or anyone he
chooses by the most expedient means; by telephone if
possible or by letter or messenger. It shall be the
responsibility of the arresting officer to see to it that this is
accomplished. No custodial investigation shall be conducted
unless it be in the presence of counsel engaged by the person
arrested, by any person on his behalf, or appointed by the
court upon petition either of the detainee himself or by
anyone on his behalf. The right to counsel may be waived but
the waiver shall not be valid unless made with the assistance
of counsel.
These rights are applicable to all persons. Thus, the fact that
all accused are foreign nationals does not preclude
application of the exclusionary rule because the
constitutional guarantee embodied in the Bill of rights are
given and extend to all persons, both aliens and citizens
Custodial interrogations- the questioning initiated by law
enforcement officers after a person has been taken custody
or otherwise deprived of his freedom of action in any
significant way
Confession vs Admission
Confession is an acknowledgement in express terms, by a
party in criminal case, of his guilt of the crime charged, while
an admission is a statement by the accused, direct or implied,
of facts pertinent to other facts, to prove his guilt.
Confession, there is an acknowledgment of guilt. Admission
applies in criminal cases to statements of fact by the accused
which do not directly involve an acknowledgement of his guilt
or of the criminal intent to commit an offense with which he
is charged.
Any confession or admission obtained in violation of this or
section 17 hereof shall be inadmissible in evidence against
him.
Any extrajudicial confession made by a person arrested,
detained or under custodial investigation, shall be in writing
and signed by such person in the presence of his counsel, or,
in the latter’s absence, upon a valid waiver, and in the
44
presence of any of the parents, elder brother and sisters, his
spouse, the municipal mayor, the municipal judge, district
school supervisor, priest or minister of the gospel, as chosen
by him; otherwise, such extrajudicial confession shall be
inadmissible as evidence in any proceeding.
Non-custodial investigation- the general inquiry into an
unsolved crime when investigators interviews witnesses at
random, and second when suspicion is focused on a
particular person and questions are asked from him to elicit
admissions or information
Custodial investigation- when a person suspected of the
commission of a crime is taken into custody, or otherwise
deprived of his freedom in some significant way, for
interrogation or the so-called custodial interrogation
the right to be informed of the right to counsel does not
commence merely from the taking of the person into custody
or in depriving him of his freedom in some significant way,
not even from the moment suspicion is focused on the
person but from the moment the investigation officer starts
to ask questions to elicit information or confession or
admission.
The right to counsel attaches upon investigation and not at
the identification process during police line-up which is not
part if custodial inquest
A police line-up is not part of the custodial investigation
where the suspects had not yet been held then to answer for
criminal offense with which they were later convicted. There
is not real need to afford a potential suspect the services of
counsel at the police line-up, for the customary practice is
that it is the witness who is investigated or interrogated in
the course of the line-up. It is the witness who gives a
statement to the police, rather than the accused who is not
questioned at all at that stage.
The right cannot be invoked until such time that the police
investigator starts questioning, interrogating or exacting a
confession from the person under investigation
The police investigation is no longer a general inquiry into an
unsolved crime when it but has begun to focus on a particular
suspect who had been taken into custody by the police who
carry out a process of interrogation that lends itself to elicit
incriminating questions
After the start of the custodial investigation, an identification
of an uncounselled accused made in a police line-up is
inadmissible
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The moment the accused was arrested and voluntarily
surrendered to the police investigators, the custodial
investigation is deemed to have started
(admission made by accused who was apprehended and
while on board vehicle to police station) being already under
custodial investigation while on board the police patrol jeep
on the way to the police station where formal investigation
may have been conducted entitles accused of right to be
informed of right to counsel.
Thus where the accused were already arrested and turned
over for investigation, the “interview” conducted by the
investigator cannot be considered merely as a general inquiry
but rather a custodial investigation
Not every statement made to the police by a person involved
in some crime is within the scope of the constitutional
protection. If not made “under custodial interrogation.” Or “
under investigation for the commission of an offense,” the
statement is unprotected.
Custodial investigation under sec 12 art III- refers to
questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of
his freedom of action in a significant way- or only where the
investigation ceases to be a general inquiry into an unsolved
crime and begins to focus on a particular suspect who is
taken into custody and asked questions that leads itself to
eliciting incriminating statements
The belated arrival of a counsel the following day even if prior
to the actual signing of the uncounseled confession, did not
cure the defect for the investigators were already able to
extract incriminatory statements from the accused. The
operative act, it has been stressed, is when the police
investigation is no longer a general inquiry into an unsolved
crime but has begun to focus on a particular suspect who has
been taken into custody by the police to carry out a process
of interrogation that lends itself to eliciting incriminatory
statements, and not the signing by the suspect of his
supposed extrajudicial confession.
Compliance with the constitutional procedures on custodial
investigation is not applicable to a spontaneous statement,
not elicited through questioning, but given in an ordinary
manner, whereby the accused orally admitted having slain
the victim.
Extra-judicial admissions to the prosecutor and a private
person freely and voluntarily made to the prosecutor, not in
the course of an investigation, but in connection with the
plea of the accused to be utilized as a state witness is not
covered by the exclusionary rule.
45
Admissions in the course of an investigation by a citizen or
private security officer and admissions made to private
persons are admissible.
That the declaration of an accused expressly acknowledging
his guilt of the offense may be given in evidence against him
and, any person, otherwise competent to testify as a witness,
who heard the confession, is competent as to the substance
of what he heard if he heard and understood it. The said
witness need not repeat verbatim the oral confession; it
suffices if he gives its substance. By analogy, that rule applies
to extrajudicial admissions
That spontaneous statement elicited without any
interrogation, was part of the res gestae and, at the same
time, was a voluntary confession of guilt
When the accused confessed to a farmer that they took
refuge in his secluded hut because the night before, they had
killed the victims, their confession, which was not taken
during custodial interrogation before a peace officer, is
admissible in evidence against the accused. The same rule
applies to confessions made to a radio reporter
Custodial investigation shall include the practice of issuing an
“invitation” to a person who is investigated in connection
with an offense he is suspected to have committed, without
prejudice to the liability of the inviting officer for any
violation of law.
Compliance with the constitutional procedures on custodial
investigation is not applicable to a spontaneous statement
not elicited through questioning but given in an ordinary
manner whereby the accused orally admitted having slain the
victim.
The right to counsel attaches upon investigation, that is,
when the investigation officers starts to ask question to elicit
information or confession or admission or after a person has
been taken into custody or otherwise deprived of his freedom
of action in any significant way.
If there is no counsel at the start of the custodial
investigation, any statement elicited from the accused is
inadmissible in evidence against him.
Custodial investigation is the stage where the police
investigation is no longer a general inquiry into an unsolved
crime but has began to focus on particular suspect who has
been taken into custody by the police who carry out a process
of interrogation that lends itself to elicit incriminating
statements. It is when questions are initiated by law
enforcement officers after a person has been taken into
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custody or otherwise deprived of his freedom of action in any
significant way.
Custodial investigation commences when the police
pinpointed the accused as one of the authors of the crime or
had focused on him as a suspect.
The right of the defendant in a criminal case to be exempt
from being a witness against himself signifies that he cannot
be compelled to testify or produce evidence in the criminal
case in which he is the accused, or one of the accused.
The accused should testify in his behalf, he may not on cross-
examination refuse to answer any question on the ground
that he might be implicated in the crime of murder; but he
may decline to answer any particular question which might
implicate him for a different and distinct offense.
The right against self-incrimination is not self-executing or
automatically operational. It must be claimed. If not claimed
by or in behalf of the witness, the protection does not come
into play. It follows that the right may be waived, expressly or
impliedly, as by a failure to claim it at the appropriate time.
The right under custodial investigation do not terminate with
the filing of the information.
Section 34. Similar acts as evidence. — Evidence that one did or did not do a
certain thing at one time is not admissible to prove that he did or did not do
the same or similar thing at another time; but it may be received to prove a
specific intent or knowledge; identity, plan, system, scheme, habit, custom or
usage, and the like.
General Rule: evidence that one did or did not do a certain
thing at one time is not admissible to prove that he did or did
not do the same or a similar thing at another time
Evidence is not admissible which shows, or tends to show,
that the accused in a criminal case has committed a crime
wholly independent from the offense for which he is on trial.
A man may be a notorious criminal, and may have committed
many crimes and still be innocent of the crime charged on
trial.
Reason for the Rule:
The rule is founded upon reason, justice and judicial
convenience. The lone fact that a person has committed the
same or similar act at some prior time affords, as a general
rule, no logical guaranty that he committed the act in
question.
Exceptions
• Specific intent or knowledge
• Identity
• A plan, system or scheme
46
• A specific habit
• Established customs, usages, and the like.
Applies to both civil and criminal cases
To be admissible, however, the evidence must show that the
other offenses are so related in time, place and circumstance
to the offense charged as to have substantial probative value
for the purpose for which the evidence is offered.
The general rule is that evidence is not admissible which
shows, or tends to show, that the accused in a criminal case
has committed a crime wholly independent of the offense for
which he is on trial.
One who commits one crime may be more likely to commit
another, yet, logically, one crime does not prove another,
unless there is such a relation between then that proof of one
tends to prove the other.
The general rule should, therefore, be strictly enforced in all
cases where applicable.
Specific Intent or knowledge
Evidence was taken relevant for the purpose of showing
knowledge as an element of criminal intent
The purpose is to ascertain defendant’s knowledge and
intent, and to fix his case. If the defendant has on more than
one occasion performed similar acts, accident in good faith is
possibly excluded, negligence is intensified, and fraudulent
intent may even be established. It has been said that there is
no better evidence of negligence other than the frequency of
accidents
As a general rule, the evidence of the other offenses
committed by a defendant is inadmissible. As one exception,
however, it is permissible to ascertain defendant’s knowledge
and intent and to fix his negligence.
Whenever mental state, guilty knowledge, or intent is an
essential element of the act charged, evidence is admissible
acts committed by a party to the cause and his conduct at or
about the time of the commission of the act charged which
tends to establish his knowledge, or intent, his motive for the
commission of the act, the absence of mistake or accident,
irrespective of whether such evidence proves or tends to
prove an act other than that charged.
Where the motive for the crime charged was the
concealment of some other crime either destroying the
evidence of such other crime or by killing a witness who could
have testified thereto, the evidence of such other crime or by
killing a witness who could have testified thereto, the
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evidence of such motive is admissible, although it tends to

show the commission of an extraneous crime.

Identity- Not admissible when identity not an issue

A crime may be committed in an extraordinary manner or

through the employment of some peculiar or moral device or
apparatus. Where a crime of such a nature is committed and
the accused denies his identity, evidence of a similar crime
committed by him in the same means or through the
employment of some device is receivable in evidence to
prove his identity.

Thus, while evidence of another crime, as a rule, not

admissible in a prosecution for robbery, it is admissible when
it is otherwise relevant, as where it tends to identify the
defendants as the perpetrators of the robbery charged or
tends to show his presence at the scene or in the vicinity of
the crime at the time charged or when it is evidence of
circumstances connected with the crime.

Section 35. Unaccepted offer. — An offer in writing to pay a particular sum of

money or to deliver a written instrument or specific personal property is, if
rejected without valid cause, equivalent to the actual production and tender
of the money, instrument, or property.

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 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
FINALS
EVID11
HEARSAY RULE
TESTIMONIAL KNOWLEDGE
Section 36. Testimony generally confined to personal knowledge; hearsay
excluded. — A witness can testify only to those facts which he knows of his
personal knowledge; that is, which are derived from his own perception,
except as otherwise provided in these rules
What is the LIMITATION OF THE TESTIMONY of a witness? To
what is the testimony of the witness generally confined?
A witness testimony is limited to personal
knowledge.
What do you understand by a witness having PERSONAL
KNOWLDGE? What are those things obtained by personal
knowledge?
Matters that the witness personally perceived – that
he saw, tasted, touched, or heard. Things that he
personally knew. The only ones who could possibly
testify are those who personally knew what happen.
Example:
If there was a quarrel he has to be somebody who
was there not somebody who heard about it.
How can a witness testify that it rained?
He can say that he saw the raindrops falling from the
sky.
How about testimony based on OPINION?
Not based on facts but on his personal inference.
How about testimony based on HEARSAY?
When somebody else told him about what
happened.
Are Personal knowledge, opinion, and hearsay admissible in
evidence?
With respect to the last 2 as a rule, no but there are
certain exceptions.
What is HEARSAY EVIDENCE?
Based on somebody’s words. Hearsay is oral
testimony or documentary evidence as to
somebody’s word’s or actions outside of court,
where they are offered to prove the truth of the very
matters they assert.
Is it limited or confined to words?
NO. Reports of an action can also be hearsay.
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How many persons are involved in a hearsay testimony?
Two
1. witness
2. the person from whom he heard the information
What is the REASON for rejecting hearsay testimony?
Because:
• It is not under oath/affirmation. The possibility of
holding the person who made the report liable for
perjury is not there.
• No opportunity to cross-examine the person who
actually witnessed the event because he is not
testifying in court.
What is important in being able to cross-examine said
person?
It tests both the willingness and ability of the witness
to tell the truth.
To test him if there is truth
I.e. Testing your:
1) perception whether you really saw or heard
what happened. - did you really saw or
heard what happened?
2) recollection memory – what made you
remember that it was Jan. 5 when this
event occurred?
3) Truthfulness of the testimony – what
assurance do we have that you are telling
the truth?
4) And sometimes the ability to narrate what
happened by asking leading questions. Is
this what you mean? Because it is possible
that he would not be able to articulate the
truth.
ELEMENTS OF HEARSAY
• An assertion or conduct amounting to an assertion
• Made or done by someone other than a testifying
witness on the stand; in other words, by an out of
court declarant of actor
• Which is offered to prove the truth of the matter
asserted at the trial in which it is offered
If the AFFIDAVIT is under oath should it be admitted in
evidence?
No because you are not able to cross-examine the
affiant (person making the affidavit).
Is hearsay testimony limited to verbal or written facts?
No. It includes testimony of non-verbal conduct.
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What is the quality of this conduct that makes it hearsay?
Does it mean that all testimonies concerning conduct of
another person is hearsay?
Example: You where on the corner of the street then
you see A chasing B with a knife. You testified in
court, “I saw A chasing B with a knife.” Is this
hearsay?
No. It’s not the value of the movement. It’s
a claim happening by event and in itself it
explains what is going on.
What is CONDUCT THAT IS HEARSAY?
Conduct that communicates something other than
the conduct itself. Conduct that amounts to an
expression. It’s a non-verbal conduct that amounts
to communication.
This is called ASSERTIVE CONDUCT.
Is the said example assertive conduct? Does it mean to
communicate something to the witness when A is chasing
something with a knife? Does he intend to communicate?
No. A is mindless of people watching him. He does
not intend to communicate
Example:
A professor testifying in court that he asked his class, “which
among you bought my book?” The professor also testified
that one student (Maria) raised her hand (in effect
communicating that she bought the book). Is the testimony of
the professor that the student raised her hand admissible in
evidence? Is this hearsay?
It is hearsay because cross-examiner cannot cross-
examine Maria. In that conveying to the court what
Maria told the prof. by her action is hearsay. By
saying that Maria told the professor that Maria
raised her hand is hearsay evidence.
st
In the 1 case A was not telling the witness something. The
witness is merely relating something the he personally
witnessed.
In another case a police officer testified that he accompanied
the witness-victim Maria to identify any of those standing in
the police line-up is the person who raped her and Maria
pointed to the accused. Is the testimony of the officer that
Maria looked at all the accused and pointed to the accused as
the person who raped her? Is this hearsay?
It is Hearsay if it is offered for the purpose of proving
that he is the rapist because Maria pointed to him
based on her knowledge was the one who raped her.
The police officer does not know that. It is hearsay
because the source of the information cannot be
cross-examined.
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It is not hearsay if is presented as independently
relevant evidence to show spontaneous recognition.
Because the purpose of the evidence is to show that
she pointed him and not the fact that he is the
rapist.
How about conduct that does not constitute as an assertion?
Admissible as evidence, like A chasing B with a knife.
The witness (mother) told the police officer that the person
who committed the murder wore a fur-lined jacket. The
officer who arrested the accused on the belief that he
committed the murder asked if he have a fur-lined jacket.
Instead of answering, the accused turned to his wife and told
her, “I don’t have one like that, do I dear?” The wife instead
of answering fainted. Is the testimony of the officer that that
was the wife reaction admissible in evidence?
Admissible. It is a non-assertive conduct, because it
cannot be considered as a communication. It is not
hearsay.
In a murder case the officer asked the wife of the shirt that
the accused was wearing when he came home after the
murder. The murder was committed, the suspected murderer
went home, the police followed him and then asked the wife
where the shirt is located. In response, the wife gave the
police officer a shirt. Is the police testimony that the wife
answered by the giving of the shirt admissible in evidence?
No, because the wife, in giving the shirt, gave an
answer to the question and communicated with the
officer. The lawyer cannot test the statement of the
wife that the shirt is in fact the one that the accused
was wearing when he came home.
This is hearsay. The action is a response to the
question and you are proving the truth of the
response.
Is a non-assertive conduct testified by a witness who observed
the conduct a form of hearsay evidence?
According to Wigmore - No i.e. You saw A chasing B
with a knife, because he is not communicating
anything to the witness. Hence, admissible
Although according to Morgan (p. 572) that where
the conduct was not intended to communicate, it is
a proof of the state of mind of the person therefore
it is assertive. Even if the action did not intend to be
his.
In as suit against the manufacturer of a product that cause
injury to the plaintiff, i.e. locally manufactured celphone
when you use it cut’s your finger therefore defective. Is the
testimony of the manufacturer that the product is safe
because for the past 3 years that they have been selling it
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nobody ever complained to them against the product? Is this
testimony admissible in evidence?
No. This is hearsay because in effect that the people
by their not complaining are saying that their
product is safe. That is what I hear from them based
on their failure to complaint for the past 3 years.
The following are hearsay:
• The testimony of a witness in a separate case against
the accused who was not a party in that separate
case.
It is hearsay because the witness who
testified in the other case is not before the
court therefore he cannot be cross-
examined.
• Certified copy of the minutes of the meeting of the
law student council being offered to show what they
took up during the meeting.
Because the persons present in the meeting
should be the one to present it.
• Medical certificate of the injuries the victim received
while the doctor who issued it is not in court.
Because the Doctor should be present in
court.
• Affidavit of witnesses against the accused.
Affiant must be presented in court.
• School ID showing that the person appearing therein
is the student of the university.
When you are issued w/ an ID the school is
the one who attest that you are their
student. Hearsay in so far as the person
who received the ID said he is a student.
• Drivers License.
Hearsay but exception the hearsay rule
because this is a government issued by the
government which carries the presumption
of the truth of what it states.
• Police Blotter where a person reports that a crime
was committed. Hearsay as to the truth of what is
stated there. Can this admitted independently of
such purpose?
Yes. It proves that the person made a
complaint (not evidence of the truth of
what it states).
• Result of traffic investigation by a policeman. He
interviewed the witnesses and makes a report.
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• Police’s sketch of what happened. Hearsay if the
police officer did not appear. If the he appears that
can be a memorandum of what he did. Proof that he
conducted _____ and that is the product of his
investigation. This is admissible.
Following are NOT HEARSAY
• Computer print out of the heart condition of a
patient.
Because the machine is not testifying. The
machine merely record what the heart says.
Heart does not testify. It is a non-verbal
conduct the heart.
• Conduct of a pet. Because dog cannot lie. It has no
motive to lie. The dog does not communicate. There
is no cross-examining of the dog.
What is the effect of FAILURE TO OBJECT to hearsay evidence?
Lack of objection to hearsay testimony may result in
its being admitted as evidence. But even if admitted
hearsay evidence is of little or no value.
What are INDEPENDENTLY RELEVANT STATEMENTS? Are they
admissible in evidence?
This is hearsay but is still admissible because you are
not trying to prove the truth of the hearsay
statement but you are trying to present that
statement for another relevant purpose.
To show the fact that the statement was made not
the truth of the statement if it is relevant. Hearsay
but offered for another purpose not the truth of
what it says. If you can show that the other purpose
is relevant in the case.
Example:
Statement heard from the plaintiff when it is
presented as admission of fact that the plaintiff
made such admission. Is this hearsay? Defendant
said, “talaga ngang may utang ako e.” The witness
said I heard the defendant said “talaga ngang may
utang sya sa plaintiff.”
Admissible, because it is an admission of a
party against his own interest and that this
can be an independently admissible
evidence.
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
How about the testimony of the landlord that his lawyer sent
a letter of demand to the tenant. He presented the letter but
the lawyer who wrote the demand letter was not presented in
court. Is the letter of demand admissible in evidence?
The letter is hearsay but admissible because you are
offering it not to prove that the defendant had not
paid the rent but for some other purpose which is
the fact that a demand was made on the defendant.
One of the requisites of unlawful detainer is that
there is a demand to vacate on the tenant the
property otherwise there is no unlawful detainer.
You are not trying to prove the correctness of the
statement but only that a demand was received by
the tenant for him to vacate the place.
Somebody filed a suit for damages due to negligent action
against a grocery store because the customer while he was
therein slipped, because the floor was wet, and broke her
arm. The witness testified that he heard the employee of the
grocery told the plaintiff “be careful passing that way because
they just wiped that and it is still wet.” Is the testimony by
someone who heard the employee who gave the warning
hearsay?
It is Hearsay. It is admissible if offered not to prove
the truth of what was said but for another relevant
purpose - to prove that the customer (plaintiff) was
forewarned. He was negligent. This is relevant for
the defense of the grocery store.
It is inadmissible if it was presented to prove what
the employee said. It cannot be presented to prove
that the floor is wet because the employee is not
presented.
A witness said that he saw the homicide committed because
he was present. Defendant presented a witness in his defense
to testify that he heard witness said that he was in the
province at the time he could not have seen the homicide. Is
the testimony admissible in evidence?
It is hearsay but is admissible to show prior
inconsistent statement.
Can the testimony of the neighbors be presented to testify
that they heard that a person who is psychotic say things that
are wild or queer or not normal? I.e. he (psychotic person)
said “I am the president of the world.”
It is admissible to prove that he is psychotic but not
to show that he is the President of the world.
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In an adultery case to prove that his wife went to a hotel
where she and her lover met, the husband testified that he
heared his son say that he preferred the restaurant in the
hotel where his mother and his kumpare ate. Is this hearsay?
This is hearsay but admissible to prove that such
place is where the wife and the lover met but not to
prove that the food is good in that place.
st
In a bigamy case defendant-husband’s testimony, that his 1
wife told him that she already had secured a divorce from
nd
him, is evidence of good faith in entering as 2 marriage. Is
this admissible?
Yes, to prove that he acted in good faith but not to
prove the marriage.
These are independently admissible evidence if the purpose
is not to show the truth of the statement but for some other
relevant matter.
Statement of one from which may be inferred his knowledge,
belief, good or bad faith, motive, or state of mind.
EXCEPTIONS TO THE HEARSAY RULE
Section 37. Dying declaration. — The declaration of a dying person, made
under the consciousness of an impending death, may be received in any case
wherein his death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death.
DYING DECLARATIONS
Is the declaration of dying person hearsay evidence?
Yes, because said person is dead before the case
goes to court and usually it is the police officer who
will say, “I went to the hospital. I questioned the
victim who was dying and he mentioned the name of
the accused.” Is this admissible?
Yes. It is an exception to hearsay rule which
is essentially inadmissible.
When is the declaration of dying person admissible in
evidence?
1) When the dying person (the declarant) made the
statement under the consciousness of an impending
death. When he made the statement he should be
conscious that he is going to die.
The witness is the one giving testimony about the
declaration that was made.
2) When the subject of the inquiry is the death of the
person.
Requirements for admissibility
• That the declarant must concern the cause and
surrounding circumstances of the declarant’s death
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• That the time the declaration was made, death was
imminent and the declarant was under a
consciousness of impending death
• That the declarant is competent as a witness
• That the declaration is offered in any case in which
the declarant’s death is the subject of inquiry
For what purpose is this presented?
Evidence of the cause and surrounding
circumstances of the death of the declarant.
What is the reason for this rule?
These are the usual requisites for hearsay
testimony to be admissible.
1) Trustworthiness because a dying person is
no longer interested in lying
2) Necessity there can be no other proof
because the declarant is dead, he cannot be
presented
Under the orthodox view may the declaration be admitted not
only to prove the circumstances of death but to show also the
dying person’s previous quarrel with his adversary?
No. Essentially it is evidence only of the causes and
surrounding circumstances of the death
The declaration must point distinctly to the cause of
death and the circumstances producing and
attending it.
Is the husband’s dying declaration that he found his wife and
her paramour in adultery on the occasion, the latter wounded
him admissible?
No. Under the orthodox view you are supposed only
to show the cause and circumstances of the death
(i.e. he was stabbed) but not antecedent things
there, because he may have another motive (such as
anger or suspicion) and he cannot be cross-
examined anymore. That would be going beyond the
purpose of a dying declaration.
When is the declarant “conscious of impending death?”
He was in actual danger of death not merely
imagined danger of death and he had no hope of
recovery at the time of the declaration.
If the declarant entertained a slight hope of recovering from
his wound, i.e., Husband said “mamatay na ako!” The wife
said, “mabubuhay ka pa!” he said, “siguro nga!” would this
constituted a dying declaration?
No because he accepted the wife’s statement that
he is going to live. There is glimmer hope. If the
declarant entertained even a slight hope of recovery,
the declarations have been excluded
52
Supposing the person (who had a glimmer of hope)
subsequently died 2 days later would his testimony regarding
the one who killed him be admissible?
Inadmissible
If he said, “I am going to die already, this guy killed me!” but
he still lived for 5 days then he died?
Admissible as dying declaration because when he
gave that statement he affirmed that he is going to
die already. Delay of death does not render
declaration inadmissible.
When the dying person said who attacked him, i.e. at the
beginning he still entertained hopes of recovering, i.e, he said,
“I’m going to live Pedro attacked me” but when his hopes
were gone a few days later he said, “I am going to die already
its Pedro who stabbed me.” Is the prior statement admissible?
Yes. Ratification of declaration when all hope is gone
is admissible even if these is not made earlier under
consciousness of impending death. A statement
made under circumstances which would not render
it admissible as dying declaration becomes
admissible if approved and ratified by the declarant
after he had abandoned all hopes of recovery.
Determination of Consciousness of Impending Death
• Utterances
• Circumstances – at the time of making declaration,
declarant did not expect to survive the injury from
which he actually died
• Actual character and seriousness of his wounds
In case the victim was asked, “do you think you are going to
die of your wound?” He said, “Opo, siguro (may be) po.” is
this admissible?
Yes. This is sufficient statement of an impending
death. It signified the belief that he was going to die
If the victim said, “Sa palagay ko po.” Is this admissible?
Yes. This is a sufficient indication of consciousness of
impending death.
The seriously wounded victim said, “kung ako ay bibigyan pa
nang Diyos ng pangalawang buhay, hindi maaring hindi
managot ang nanakit saakin.” Is this admissible?
Yes. He was thinking of second life already means he
st
has given up on his 1 life. There is sufficient
implication that death would surely take him away.
Declarant said, “I have no hope at present, may sakit ako,
pero sinong nakakabatid, maari pa akong gumaling (who
knows I may get well).”
Inadmissible. There was still hope for recovery.
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“Do you think you will die?” answer “I don’t know if a can
make it.” Then he died after naming the person who killed
him.
Inadmissible. He does not know that if he is going to
die. It should be a consciousness of an impending
death. The declarant fails to show that he believed
himself in extremis, at the point of death when every
hope of recovery is extinct
Answer…“It depends.”
Inadmissible. He refuse to give it up. The declarant
was himself hesitant to accept the fact of his
impending death and entertained hoes of recovery
“The doctor told me of the gravity of my wound and I may
die.”
Admissible because he adopted the advice of the
doctor. Communications made by his medical
adviser or others is acquiesced by him.
A clergyman/priest administered the last rites to the
declarant before he gave his statement as to who killed
him(p.605)? Is this admissible?
Yes (J. Herrera).
But Justice Abad said this is questionable because he
did not say he is conscious of an impending death.
He merely allowed the priest to give him the last
rites. So the thinking is that he would have not
agreed to the last rites.
He said that this is not consciousness of an
impending death because there must be a
sign/statement that he wanted the last rites, i.e. he
asked for a priest. There must be some expression of
the consciousness of death and that he wanted the
last rites.
Supposing he made his last statement he said goodbye to all
people around him then he said who killed him. Is this
admissible?
Yes because he has given up.
Supposing the victim was unable to say anything about his
wounds, physical condition, or impending death, can this be
implied from the nature of his wounds (causing his intestine
to protrude) then he said Pedro killed him (p.606)
Admissible. The victim could not ignore the
seriousness of his under consciousness of an
impending death. It is sufficient that the
circumstance at the time of such statement the
declarant did not expect to survive the injury from
which he actually died.
53
(One author disagrees with this decision, because it
is not the seriousness of the wound but the
consciousness of an impending death.)
Even if you are morally wounded but still you believe
that you will survive, is it admissible?
No
Would the dying declaration of someone who is in pain be
admissible?
No
Would the dying declaration of a wife be admissible against
the husband who attacked her? Is not this privileged?
Admissible on the principle that the testimony of on
is admissible against the other when the complaint is
violence against the other.
May the accuse discredit the dying declaration of the victim?
Yes, because the fact that it is admissible does not
make it credible all the time.
In one of the cases handled by J. Abad, the wife testified that
the husband told her the name of the assailant at the point
when he was dying. He said Pedro Naval E. Velarde (even the
middle name). The judge did not believe them and the
accused was acquitted.
Does the dying declaration have to be under oath?
No. The notary public can’t be in the hospital is
usually it should be the place where they hold office
one of the exception is when the person _____ who
is to make the affidavit is in the hospital.
Can a dying declaration and consciousness of death be
obtained by leading questions?
Yes, because sometimes they are can no longer
speak.
What is the weight accorded to Dying Declaration (p. 615)?
Highest credence (if it is authentic), because no
person who knows of his impending death would
make a careless accusation.
While it is true that as a rule, when an individual is at point of
death, every motive of falsehood is silence and the mind is
induced by the most powerful consideration to speak the
truth and therefore his statements deserve great weight.
However, it have to be noted that men, in the very threshold
of death, have sometimes been swayed by a spirit of
vindictive revenge or heated passion, or a desire to shield
themselves or others in making ante mortem statements.
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Example: A man died of poisoning. When he was eating his
dinner, he felt bad then he could not breath anymore. Then he
was brought to the hospital and under consciousness of an
impending death he said that her mother-in-law was the one
who poisoned her. Is this admissible?
It can be out of anger. Not all the times could a dying
declaration can be admitted. It is prohibited when
shown that the statement was made out of a deep
seated anger. It has nothing to do with the
circumstances of death.
A 10 year old child found her grandmother bleeding on the
floor. He asked “Apo, Apo, what happened?” the
grandmother said: “Si Paqui” then she died. Is this declaration
evidence that Paqui is the assailant?
No. It is inconclusive. It could be anything. The child
only asked what happened and not who killed you
Section 38. Declaration against interest. — The declaration made by a person
deceased, or unable to testify, against the interest of the declarant, if the fact
is asserted in the declaration was at the time it was made so far contrary to
declarant's own interest, that a reasonable man in his position would not
have made the declaration unless he believed it to be true, may be received
in evidence against himself or his successors in interest and against third
persons.
When is the declaration of a person made prior to his death,
or inability to testify admissible as evidence against himself or
rd
his successors in interest and against 3 persons?
If it is against the interest of the declarant
What is the measure of that declaration against interest?
if the fact asserted in the declaration was at the time
it was made so far contrary (excessively contrary) to
declarant’s own interest, that no reasonable man his
position would not have made the declaration unless
he believed it to be true.
What are the reasons for this rule?
1) Necessity – declarant can no longer testify
2) Trustworthiness – nobody could probably be
motivated to say something against his own interest.
What are the requisites for its admissibility?
• Declarant must be unavailable as a witness
• Declaration relate against declarant’s interest
• Interest not too indirect/remote
• Declaration concern a fact cognizable by the
declarant
• Circumstances render it improbable that a motive to
falsify existed and believed such declarations to be
true
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Would it be sufficient if the declarant has only contingent
(future) interest not a direct interest in the subject of the
statement?
It is essential that at the time of the statement, the
declarant’s interest affected thereby should be
actual, real or apparent, not merely contingent,
future or conditional.
Would the declaration of the former owner of the property
against its title be admissible against the present owner?
No since he is a former owner he has no more
interest to protect.
An action was filed against a government treasurer to recover
money that he misappropriated but he is already dead so the
action was filed against his estate. A witness testified that the
treasurer when he was still alive told him that had a shortage
of P20 K in his account. Is this testimony admissible against
his estate?
Yes, because his declaration against his interest
which can be used against his heirs.
A case was filed against a factory owner for damages because
the fires started in his building and the fire spread through out
the neighborhood and burned other buildings. He was sued
for damages because the proximate cause of the lost of
others was negligence of his factory. One factory employee
died but testimony was given that when he was alive, he
admitted to the witness that he accidentally started the fire in
the employer’s building by his neglect. Is this statement
admissible against the factory owner?
Yes because the employee is an agent of the factory
owner.
A sued B because killed his A’s carabao. Before X died he
stated in a letter it was he (X) who killed the carabao? Is this
admissible against A?
Yes, because this is a declaration against interest of
the one who committed the crime (X). This is a
declaration against interest of the declarant which
rd
can be used against a 3 Person. If all requisites for
admission of a declaration against interest are
present, the admission is admissible not only against
the declarant but against third person.
Are these declarations similar to admissions?
No. An Admission-
1) need not be against interest it can simply be
an admission of the party in a case
2) may be used even if the declarant is alive
and available as a witness;
3) is admissible only against the declarant or
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his privies but not against 3 persons.
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Is the son’s affidavit saying his father already died told him,
“my father told me he already sold the land to the
defendant?” Is this admissible?
Yes. This is a declaration against the interest of the
declarant which can be used against his successor.
Is the declarant privilege from testifying concerning the
subject matter of the statement considered unavailable?
Yes.
How about the declarant who persist in refusing to testify
despite a court order to do so?
Yes
How about declarant who testifies that he already forgot
about it?
Yes. Lack of memory of the subject of the statement.
How about the declarants whose attendance could not be
procured by subpoena or other reasonable means?
Yes.
What is the consequence if the unavailability is by
procurement of the party offering the hearsay statement?
Not admissible. The rule shall not apply because
dishonest person cannot profit from the rules.
If the witness is outside the Philippines could he be regarded
as unavailable?
Yes.
But depositions abroad can be taken, so how can we say that
he is unavailable?
If he is abroad the court has no jurisdiction over the
witness. The court cannot compel him to testify.
Pursuant to a deposition order, he can refuse.
Can the court acquire jurisdiction over deponent through
depositions?
Jurisdiction over the person is obtained by
subpoena. Subpoena cannot be issued against a
person abroad. Our court processes are not binding
upon persons who are abroad.
EVID12
Section 39. Act or declaration about pedigree. — The act or declaration of a
person deceased, or unable to testify, in respect to the pedigree of another
person related to him by birth or marriage, may be received in evidence
where it occurred before the controversy, and the relationship between the
two persons is shown by evidence other than such act or declaration. The
word "pedigree" includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these fast occurred, and the
names of the relatives. It embraces also facts of family history intimately
connected with pedigree.
55
When is the act or declaration of a deceased person about the
pedigree of the another admissible in evidence?
Requisites:
1) declarant is dead/unable to testify
2) pedigree is in issue or relevant thereto
3) person whose pedigree is in question is related to
the declarant by birth or marriage
4) such relationship must be shown by independent
evidence
5) declaration was made before the controversy
What is Pedigree?
Includes relationship, family genealogy, birth,
marriage, death, the dates when and the places
where these facts occurred and the names of the
relatives. Your blood relationship, also by marriage
(father, mother, bros. and sis-in-laws)
Whose relatives are referred to?
Relatives of the declarant
Who are the persons involved here?
1) declarant – person whose hearsay statement is
subject of the inquiry
2) witness – to whom the declarant told it to
3) person whose pedigree is in issue
Whose relationship must be established?
The person whose pedigree in issue
What is the reason for admitting such hearsay evidence?
• Necessity – because declarant is deceased/ unable
to testify
• Trustworthiness – if there is not controversy in their
family relatives will usually not lie about their
relationship to each other.
What issue of pedigree does the declaration of a person
applies to?
This applies to the person whose pedigree is in issue.
Should the witness be related to the declarant?
No
The only tie that has to be established for that testimony to
be admissible is the tie between the declarant and the one of
the persons involved but the person involved must be related
to the declarant.
The declarant must be related to the person whose pedigree
is in question but he need not be related to the other person
said to be related to the subject person.
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
The issue of pedigree between spouses. Were they married to
each other? Is A married to B? Can D who died, say A was
married to B. A is his cousin. B is not related to him. Is this
admissible?
Yes because he is related to one them. Relationship
runs through the family of B so he can testify about
it. He was part of that pedigree (family tree).
Testimony is reliable because ordinarily you will not
lie about your pedigree.
Unless you want to upgrade your pedigree (i.e. you
want to say you are an heir of a friend who is a Duke
or Baron).
Must de declarant be related by blood to the person subject of
inquiry?
No. It can be relationship by marriage.
B say he is A’s brother in law therefore I can say that D is the
sister of A. Is this admissible?
No. B is not part of the pedigree of A.
D is declarant, A is his wife. Can he testify that B is the sister
of his wife (A)?
Yes, because this relationship resulted from
marriage (between A and D).
Example: When your mother married your father
she becomes knowledgeable about the pedigree of
father. She can testify about it. But your mother
cannot know the pedigree of your uncle (her brother
in law).
Must the relationship between the decease/absent declarant
of the subject person be illegitimate?
General Rule - it must be legitimate
UNLESS when the subject of the statement is:
1) the declarant’s own relationship to another
person or
2) illegitimate relationship between two
persons, and declarant is legitimately
related to them.
Would the rule apply if the relationship of the declarant to the
person whose pedigree is in question is illegitimate? Example:
A is the illegitimate son of D. Would the declaration of D
regarding the pedigree of A be admissible in evidence?
No. It is not admissible. But there are exceptions:
when the subject of the inquiry is:
• the relationship between father and the
illegitimate son; or
• illegitimate relationship between two
persons, and declarant is legitimately
related to them. (i.e. statements of D
56
[mother of A] that C is the illegitimate child
of A)
In what form may declaration of pedigree be made?
Verbal (oral) or written
If it is written what is required for it to be admissible?
It must be authenticated. Somebody will testify that
the document is what it is claimed to be.
What are examples of declaration of pedigree in writing and
the person who wrote it is dead?
Solemn entries in family bible, letters of a deceased
relative, statements and recital appearing in books
or paper, will, deeds of conveyance, and public or
quasi-public records and registers in which
genealogy of facts are recorded.
Can the matters of pedigree be proved by conduct?
Example of proof of pedigree by conduct.
Is Pagmamano proof of pedigree?
How do you establish that a man recognizes his son by his
action where there is no verbal or written admission?
In a Graduation Ceremony. Child is an honor
student. The parents are called to put his medal.
Then this guy hanged the medal on him.
Section 40. Family reputation or tradition regarding pedigree. — The
reputation or tradition existing in a family previous to the controversy, in
respect to the pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member of the family,
either by consanguinity or affinity. Entries in family bibles or other family
books or charts, engravings on rings, family portraits and the like, may be
received as evidence of pedigree.
Apart from declaration of the deceased or unavailable person
how else may you prove pedigree?
By Family reputation or tradition regarding pedigree.
What are the requisites of family reputation/tradition to be
admissible?
1) controversy regarding the pedigree of any of the
members of the family
2) reputation/tradition of the pedigree of the person
concerned existed prior to the controversy
3) witness testifying is a member of the family of said
person by consanguinity or affinity
*Community reputation is different from family reputation
What is the reason for admitting such hearsay evidence?
1) Necessity – it is seldom that there are persons who
are still alive who can testify on this
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
2) Trustworthiness - you cannot lie about your
pedigree
If you are witness and the lawyer asked you when you were
born. When you answered the lawyer objected saying you are
incompetent, for how will you know when you were born
since you were just an infant when you were delivered. So
you don’t have personal knowledge of when you were born.
Family reputation is an exception to the hearsay rule that is
why you can testify about it, about who your parents are
even if you weren’t present when they were married.
This applies also to your birth place.
May a question of pedigree be proved by the conduct of the
members of the family towards each other?
Yes.
In a case of statutory rape where the issue was whether she
was below 12 yrs old when she was raped. Is the testimony of
the child and her maternal grandfather about her age
admissible in evidence?
Yes, because of tradition. You know your age
because your parents told you.
Is the testimony of the father, sister of wife respecting the
pedigree of her husband admissible?
Yes with respect to the wife. Not with respect to the
in-laws (father and sister).
Section 41. Common reputation. — Common reputation existing previous to
the controversy, respecting facts of public or general interest more than
thirty years old, or respecting marriage or moral character, may be given in
evidence. Monuments and inscriptions in public places may be received as
evidence of common reputation.
Is common reputation admissible in evidence?
Yes.
When is it admissible?
The common reputation exist before the controversy
Respecting what?
• Matters of public OR general interest more than 30
yrs old (J. Abad said at least 30 yrs)
• Marriage
• Moral character – either good or bad reputation
May monuments in public places be evidence of common
reputation?
Yes
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How about the name of Diosdado Macapagalin a building, is
that evidence that he graduated in UST?
Yes
What is reputation?
The prevailing belief in the community as to the
existence of a certain fact or aggregation of facts.
Community is a group of people with common/binding
interest
What would be a group of people with binding interest that
makes them a community?
Example: civil law community, church community,
place of work/industry, reputation among your
peers (i.e. artist)
Is reputation the same as rumors?
No Rumors usually refer to a particular event
(usually evil news)
- merely a report that is not yet fully credited
- signify a particular act or occurence
i.e. there is a rumor that your married
neighbor is having an affair with another
person
Reputation he is more general. i.e. a good person, he is
known for honesty or excellent work does not refer to a
particular event/situation.
- implies the definite and final formation of opinion by
the community
- predicated upon general trait of character
In a testimony of a witness concerning the reputation of a
person. Would it be an adequate for the witness to state the
number of people he talked to? Example: I know he is a good
man because I talked to A B C D E who said he is a good man.
Is this admissible of common reputation?
No. These person should have told him that he is a
good man because he known in his community as a
good man. This is w/o preference to the personal
knowledge to the person. What he hears must also
be based on common reputation.
Can the witness say he is both good and bad?
No. because this means that he has no common
reputation.
What is the reason for admitting such hearsay evidence?
1) Necessity - You cannot present the whole
community to establish common reputation
2) Trustworthiness – the falsity or error can be
exposed or corrected by other testimony
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Requisites of Common reputation respecting facts of Public
or General Interest:
• The common reputation involves facts of public or
general interest more than 30 years old
• That the reputation is ancient
• The reputation must come from persons in a
position to know matter
• The common reputation existed ante litem motam
The matter must of general or public interest must be 30
years old (means ancient). Does this apply to fact of
marriage?
No. There is no general or public interest in the
marriage of the person.
What is the distinction between matters public interest and
matter so general interest?
Matters of public interest :
o those that affect all the people of the state
or country
o declarations of which may be made by an
inhabitant
Matters of general interest
• are common to the inhabitants of a
subdivision of the state or country, such as
town, parish, municipality
• only those who possess adequate
knowledge can testify to it
What are examples of public and general interests?
Public interest refers more to political things. Most
of which have had some relationship to rights and
privileges in land. May refer to territorial boundaries
of governmental or administrative bodies, existence
or location of a public way, or incorporation of a
parish or a town
Matters of common interest - more local; this may concern
lines of counties, towns, townships, highway, large
watercourses etc.
What is the weight given to general reputation?
The greater the public interest the greater is the
weight. The lesser the public interest the lesser
weight (J. Abad).
The weight depends on the circumstance (J. Herrera).
How may historical facts be proved? Example: how do you
st
prove that the 1 pres. Of the phil is Emilio aguinaldo?
Through writings such as history books. Authors of
these books write them based on general reputation
and tradition.
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In character reputation to what does character, to what does
character refer?
Inherent quality of a person.
i.e. honesty
What are the requisites for admissibility of reputation
concerning moral character?
• it is the reputation in the place where the person in
question is best known
• it was formed before the controversy or ante litem
motam
Are there other evidence of moral character apart from
common reputation?
Specific conduct.
Example:. A taxi driver found a P50 K pesos in his taxi
and return it to the owner. This is evidence of good
moral character.
Is this an evidence of common reputation?
No. it is a specific evidence of good reputation.
Common reputation should refer to community
judgment not on the basis of specific conduct.
* Another evidence of moral character is opinion testimony
When is it relevant to present evidence of good moral
character?
• In petition for naturalization of an alien
• In defamation actions – to prove damage to
one’s reputation (which is one of the elements)
Will the credibility of the witness be attacked by evidence of
reputation?
Yes
In what place should the reputation of the person be tested?
Place of residence or where he works
*That in which he lived and moved or where he had his social
and business contracts.
How about the character of the witness who testified about
the character of a person, must he be a member of the
community where the reputation is established?
No. Residence in the same place is not always
essential. He should be in a possession where he
could observe the conduct of the person.
In order to qualify as a character witness to testify to another
person’s reputation, the foundation proof (usually a
profession by the witness himself) must show that he is
familiar with the esteem, or lack of it, in which the person is
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held in the community or the social or business in which he
moves.
* It has been held that a person who is employed to
investigate the character of a person cannot qualify to testify
as to his reputation, but an investigator may arrive at a
reliable conclusion if his investigation is sufficiently broad in
scope and extends over as sufficient length of time that he
can actually gain knowledge of the consensus of the
community.
May evidence of reputation regarding marriage proceed from
person who are not member of the family?
Yes.
Section 42. Part of res gestae. — Statements made by a person while a
starting occurrence is taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof, may be given in evidence
as part of res gestae. So, also, statements accompanying an equivocal act
material to the issue, and giving it a legal significance, may be received as
part of the res gestae.
When are hearsay statement considered part of res gestae
(things done)?
When the statements are made while a starling
occurrence is taking place or immediately before or
immediately after thereto with respect to the
startling occurence.
What is this “startling occurrence?”
He must be excited.
Can he say when this happen and when to react?
No. Hearsay statement must be spontaneous.
It is hearsay because the person who tells the story is not the
person who made the startling/res gestae statement. You
have the witness (who did not see the startling occurrence)
but repeating the utterance made by the person who saw the
starling occurrence. That is why it is spontaneous.
Why is this admissible in evidence?
Trustworthy - Excitement of a person prevents him
from lying about it.
* This is predicated upon the common experience that
utterances made under such statement are under
circumstances are devoid of self-interest, and the probability
of falsehood is too remote as to be negligible.
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Kung nagalalakad ka tapos may naapakan kang balat ng
saging. Tapos nagslip ka. Then you said, “Sino bang nagtapon
ng balat ng saging dito?” is this res gestae? If somebody say
in court that “Although I did not see what happened, I heard
him say sino bang nagtapon ng balat ng saging dito?” can he
testify even if he did not see it?
Yes. This is res gestae statement made by the person
in relation to the startling occurence
If it was only after 1 hour from such occurrence when she told
it to her classmates, would the satetment of her classmates,
“She told us that when she was in room 107 he slipped
because of the banana peeling” it still be admissible in
evidence?
No. She must still be excited. After 1 hour the
excitement is over.
That is test of admissibility of evidence as part of the res
gestae?
Whether or not at the time he made that
statement/utterance there is still that excitement in
her.
The following day the story is different. Now I want to make a
claim against UST. Nadulas ako. The pain is still here and it
caused me sleepless nights. Can you relate this testimony in
favor as part of the res gestae statement?
No. Later on the expression is no longer closely
connected with the principal event to make it part of
the event.
How are res gestae statements classified?
• Spontaneous exclamations - closest to the event,
which are unreflected and instinctive
• contemporaneous statements or verbal acts –
explains or characterizes another act which is
ambiguous.
What are the reason for admitting statements made during
starling occasions?
* The one who is testifying about the startling
occurrence is not the one who made the res gestae
statement it is another witness. That is what makes
it hearsay.
1) Trustworthy– not likely to make a person to
lie about it.
2) necessity – spontaneous statements are
convincing
If you are excited you do not have time to deliberate on what
you are going to say.
If somebody is being stabbed, the witness (in the other room)
is could not see but could hear what is happening, is the
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outcry of the person being stabbed “Wag! Wag Ambo! Is this
statement part of the res gestae?
Yes.
Is this relevant to the criminal case or physical assault?
Yes. It is possible that the victim died and will not be
able to identify the killer.
How about the startling statement of the companion of
someone who jumped on the building. The companion went
down to the manager of the building and told him,
“Nagpakamataay ang kasama ko!” Said person can no longer
be found to testify. The manager is now testifying I heard him
say “Nagpakamataay ang kasama ko!” Is this admissible?
Yes. The companion immediately and excitedly told
rd
a 3 person that he killed himself. This is a
sponatenous res gestae.
The accused was charged with abducting a woman. The
accused claims that the woman freely came with him. But the
aunt testified that her niece cried for help during the
abduction. Is this res gestae statement?
Yes.
Must the statement be uttered simultaneously/ at the same
time with the startling fact or event?
No. It can be uttered afterwards.
How long afterwards?
Reasonable lapse of time wherein there is no
opportunity to fabricate a story. There must be
sufficient excitement.
* What is important is that, the declarations were voluntary
and spontaneously made so nearly contemporaneous as to
be in the presence of the transaction which they illustrate
and explain, and were made under such circumstances as
necessarily to exclude the idea of design or deliberation.
Example. You are here at the corridor and you saw somebody
shoot another in front of you. Later on after 1 hour you told
people what you saw and then you went abroad. Can present
the testimony of this people as part of the res gestae?
Yes. Because this is sufficiently exciting for you to
remain excited for 1 hour. Sometimes even up to the
following day.
What if one month has already elapsed?
Your excitement is no longer there.
If a statement of a victim, who was stabbed, not admissible as
dying declration would this still be admissible as res gestae
statement?
Yes
60
Even if he was not able to show consciousness of an
impending death, i.e. he said “I’m going to die!” the he was
asked who stabbed him and he replied “Pedro stabbed me!”
it can be admissible as res gestae statement.
The witness is inside the restaurant, when a car passed by he
heard someone on the side walk said they won’t last long at
that rate of speed. That person who was on the side walk
cannot be produced anymore to establish that the vehicle was
running at a very fast speed. Can the witness in the restaurant
who heard be presented to testify to what the person on the
side walk said (p.693)?
Yes.
The injured wife of the plaintiff was found after an explosion
lying on the lawn, her children burned, and the house still
burning. She was asked what was the matter and how it
happened and she replied “Pete (a nearby grocery) gave me
gasoline instead of kerosene.” Is the fact that the exclamation
was made in reponse to a question an not made spontaneous
admissible as part of res gestae?
Yes. The statement was made during an exciting
period.
Would the statement made before the occurrence of the
startling event be made admissible as part of the res gestae?
No. Rule says it should be made “immediately
before” just somewhat in relation to that startling
event. Then it may be admissible
Example: Somebody say “May sunog!” Then the people began
to run. He haven’t seen the fire yet. Are the statements of the
persons who heard him say such statement admissible?
No because the statement was not made
immediately made prior the startling statement
occur.
* The statement must describe something done, seen or
heard by the declarant in the course of the occurrence, event,
or transaction, and it is not admissible to prove facts
antecedent to the occurrence itself, however strongly it may
be authenticated by post-accident excitement.
Are opinions uttered with great excitement at the time of the
startling occurrence part of the res gestae? i.e. Somebody
jumped from the building and then someone said, “siguro
nagpakamatay.” Is this admissible?
No because it is not a factual statement.
The statement of the common-law wife of the victim: “Binaril
si boy ni Pirate; Binaril si Boy” as she rushed out of the
apartment after the volley of shots had been heard. Is this
admissible as part of the res gestae?
Yes.
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
The ff statements were also admitted as part of the res
gestae (p. 697).
1) The outcries of the victim while he was under attack
2) The spontaneous identification of the accused by the
victim after the shooting, while he was suffering
from the agony of his injuries
3) “I am going to hit them, my brakes won’t work.”
4) “You didn’t blow your horn.”
5) statement of the accused admitting responsibility for
the crime to the police officer who approached
complainant during the fight
6) Statement of the deceased before his regarding the
circumstances, assuming he did not take into
contemplation his impending death
Does the fact that the statement is part of the res gestae
make it believable?
No.
Could telephone conversations be regarded as spontaneous
statements?
Yes because of the excitement of the conversation.
Could res gestae statements be in writing?
No because you have more reason to lie and
deliberate when you write.
The witness testified that he heard Cesar “Mario (accused)
wag mong gawin yan.” The Mario went abroad. Can this
presented as res gestae?
Yes. nature of res gestae is that the one who heard
was not there. He did not see the startling event that
produces the startling remark. Res gestae is
testimony of someone who saw the occurrence but
heard someone talk about it.
While you are in your room studying your lesson then you
from outside, “May nagaaway!” What you heard can you
testify about it even if you didn’t saw what was happening?
Yes.
Would the res gestae declarations of the husband against the
res gestae be admissible or is it privileged?
Yes because it is not the husband who is testifying. It
rd
is the 3 person who heard it.
The doctor may not be present when the event happened.
For example the person was injured the doctor was not there.
The doctor was examining the witness and checking the
witness asked: “masakit ba dito?” patient replied: “Yes
rd
doctor!” the doctor was not presented in court but the 3
person said he heard such declaration. Is this admissible in
evidence?
Yes
61
What if the doctor asked, “Sino ba ang pumalo sayo.” The
patient replied, “Si Pedro Ho.” Is this admissible in evidence?
No. This has nothing to do with the diagnosis (this is
the test).
What else may be regarded as part of the res gestae?
Statements accompanying an equivocal act, material
to the issue and giving it a legal seginificance. These
are called verbal acts because they are considered
verbal parts of the equivocal or ambiguous acts
which they explain.
What are the requsites for admissibility of verbal acts?
• There must be an equivocal act
• The quivocal act must be independently material to
the issue
• The statement must accompanying the equivocal act
• The statement in question must be necessary to
understand the act
What do you mean by “equivocal act?”
When the statement has 2 or more meanings.
Example you ride on a jeepney and you say to the jeepney
driver “Para!” then you gave to then you gave him P7. This is
an equivocal act as to who paid. If you say, “Bayad ng ale.”
The equivocal act is now accompanied by a res gestae
statement which makes it clear. It explains what the payment
is for.
This is hearsay because other party who is testifying only
heard about it.
When you hand over money it is also equivocal act. But if you
say, “Eto bayad utang.”
Spontaneous statement explains what the money is
for.
EVID13
Section 43. Entries in the course of business. — Entries made at, or near the
time of transactions to which they refer, by a person deceased, or unable to
testify, who was in a position to know the facts therein stated, may be
received as prima facie evidence, if such person made the entries in his
professional capacity or in the performance of duty and in the ordinary or
regular course of business or duty.
When are entries in the course of business prima facie
evidence? Requisites
• That the entrant made the entry in his professional
capacity or in the performance of a duty
• That the entry was made in the ordinary course of
business or duty
• The entries must have been made at or near the
time of the transaction to which they relate
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
• The entrant must have been in a position to know
the facts stated in the entries
• The entrant must be deceased or unable to testify
Example: A security guard who maintain a log book in a
private building. Such guard enters the name of a person
when entering a building.
Can we present that log book as evidence when a person
entered such building on such day and time?
Yes
Is that entry made in the log book made at the time of the
transaction?
Yes
If the security guard is available, can we produce that log
book?
No, unless the log book will be used as a
memorandum. But testimony of the security guard
will prevail over the log book
Can we present the log book independently of the security
guard?
No
Is the entry that X arrived in the building on July 1 at 5pm and
left at 7pm, is that evidence of the fact that X arrived on that
day and on that time and left on such a time?
Yes
Is that hearsay evidence?
Yes, but it is admissible because it falls under the
exception of the hearsay evidence. It is hearsay
because it is merely a writing of somebody who
cannot be cross-examined.
Why is it we are admitting this kind of hearsay evidence?
Because such have value when the entrant is
unavailable to testify. Because of trustworthiness
and necessity. It is trustworthy because the entrant
entered such information with no intention to lie
and impartially. It is necessary because the entrant is
no longer available.
Are book keeping entries made by the treasurer of a school on
matters not coming with his authority admissible?
No, because it is essential that the entry should have
been made because it was the business or duty of
the entrant to do so. Accordingly, if the entrant
made the entry not as part of his business or duty,
the entry is not admissible.
62
Is it essential that the person made the records is having been
under an absolute duty to make the entry?
No, it is sufficient that if the entry was the natural
concomitant of the transaction to which it relates
and usually accompanies it. A duty self-imposed by
the entrant has been held to satisfy the rule
For example:
If a security guard is only required to enter in his log book the
persons who will enter the building but at the same time he
records those the telephone calls he received. Would the
entry of the telephone calls that he received be admissible as
evidence?
Yes, a duty self-imposed by the entrant has been
held to satisfy the rule provided that he do it
regularly
Supposing that a person records all telephone calls but he
does not record it in the log book but he records it in some
other paper, would that be considered?
No, such situation is a proof of lack of regularity
Regular entries are entries done in prepared log book, book
or notebook.
How about the entries made by a teller in a bank, the entries
made in a passbook, can the passbook be admissible as
evidence?
Yes, because those are entries done in the ordinary
course of business
Another example:
Entries made in the school in the registrar evidence
What are the rules of books of merchants under the code of
commerce?
Are the books of merchants admissible as against
such merchant who prepare those books?
Yes
Can the adverse party use the books of his
opponent?
Yes, but he cannot reject the entries that is
against him, he must use such books as a
whole
How about if there are 2 merchants that do not
agree but only one of them have been kept with all
the formalities, which one will be admissible?
The entries of the books correctly kept shall
be admitted
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
What if the one has a book the other has none? Does
the one who possess the book be admissible as
evidence?
If one of the merchants should not present
his books or should state the he does not
possess any, those of his adversary, kept
with all legal formalities, shall be evidence
against him
If the books of all merchants were both prepared
according to the rules on preparation of books but
they contradict each other, will this constitute
evidence?
It will be upon the discretion of the judge
If it is a book of entries, that the entries are so rare, for
example: one entry for 10 years, will that be admissible as
evidence?
No, because there is no regularity. The entries
should be made regularly
If the guard who made entries in the log book chooses what
events he puts in the log book, will that be sufficient?
No, because he does not impose upon himself that it
is his duty
How soon should the entries be made in the books after its
transactions? Example: checks in the bank, it was put in the
books the day after it was received not on the day it was
received
All that the rule requires is that the entry be made at
or near the time of transaction to which it relates. It
is sufficient, if the entry was made within a
reasonable time so that it may appear to have taken
place while the memory of facts was unimpaired.
Must the person who made the entries personally know the
facts that are entered into?
No, because what is only required is that the entrant
was in the position to know the facts stated therein.
Are improperly entered entries by a clerk of court in books of
cases admissible as evidence?
Yes, that makes it more credible, human inaccuracy
Are recitals in hospital records of a patient to show the
circumstances of an accident as recited by the patient to his
doctor admissible as evidence?
No, because it is not a regular occurring transaction
between the doctor and the concerned patient,
there is no trustworthiness of what the person is
telling the doctor.
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How about printouts? Is that admissible as evidence?
Yes
Section 44. Entries in official records. — Entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person
in the performance of a duty specially enjoined by law, are prima facie
evidence of the facts therein stated.
Requisites:
• The entries were made by a public officer or private
person in the performance of his duty
• The performance of the duty is especially enjoined
by law
• The public officer or the private person had
sufficient knowledge of the facts by him stated,
which much have been acquired by him personally
or through official information.
Who must make the entry?
A public official or a private person
If it is a private person, what is required?
The private person must have the duty in law to
make such entries
Example:
Priest recording marriages
What is the duty of a priest celebrating a marriage?
To sign the marriage certificate and file it with the
civil registry
Is the document prepared by the Priest admissible as
evidence?
Yes
How about an entry made by a public officer in the official
records? (Example)
Police Blotter
These entries become prima facie proof of what it is states
Is an entry made by a police officer of a complaint made by a
woman against an accused a prima facie proof of the fact
that the accused beat the woman who filed a complaint?
No, it is not a prima facie proof because the proof
cannot prevail over the presumption of innocence.
There is a need to prove the fact that the crime is
committed.
Supposing a person write a letter address to the Mayor of
Manila and it contains a complaint that one of his employees
is unlawfully living with another employee and the mayor ask
his one of his employee to record it in the official records, is
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
that prima facie proof of the truth of what it states? That one
of his employees is living unlawfully with another employee?
No, it is only a prima facie proof that a letter was
received by the mayor
In the police blotter, it is only a prima facie evidence of the
truth that the woman came to the police station and made a
complaint not of what the complaint states.
When a child is born, the physician who delivered the child
has a duty to record it, who performed the recording? Is it a
public officer?
No, it is a private person with the duty under the law
to make a record
Is that birth certificate a prima facie evidence of what is
stated there?
Yes, because it is an entry made in an official record
and with a person who has an official duty to record
it. The physician has no sufficient knowledge of the
facts stated in the birth certificate but such physician
has sufficient knowledge of the fact that a child was
born.
Why is it reliable?
Because there is no motive to lie
The information must have been gotten by the public officer
or a private person personally or thru official information.
Information by the conduct of his duty like the physician.
Are official entries admissible without showing that the
person who made the entries (like a priest) is unavailable? Do
u have to prove that the priest is unavailable to make the
marriage certificate admissible?
No need.
The assessor’s record, like tax declarations are those entries
of official records?
Yes
Examples of official records:
• Official cash book kept by disbursing officer
• Records of the register of deeds
• Death certificate to prove the cause of death
• Ship’s log book is an official record and the entries
made by person in the performance of a duty
required by law are prima facie of the facts stated
therein
• Transcript of stenographic notes as prima facie
evidence of the proceedings in the case
• A complaint filed by the Chief of Police as to the
facts therein states
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Are Police and investigative reports are entries of official
record?
Yes
Is that a prima facie proof of the truth of what it states?
As a rule, no unless the report was made pursuant to
a specific legal requirement to make an inquiry and
file a report, concerning the cause of, or
responsibility for a given occurrence.
Section 45. Commercial lists and the like. — Evidence of statements of
matters of interest to persons engaged in an occupation contained in a list,
register, periodical, or other published compilation is admissible as tending
to prove the truth of any relevant matter so stated if that compilation is
published for use by persons engaged in that occupation and is generally
used and relied upon by them therein.
When are commercial lists and the like admissible as evidence
to prove the truth of what it contain?
Requisites:
• Statements of matters of interest to persons
engaged in an occupation
• The statements must be contained in a list,
register, periodical or other published
compilation
• That compilation is published for use by persons
engaged in that occupation
• Generally relied upon by them therein
Are lawyers engaged in an occupation?
yes
“Statements of matters of interest to persons engaged in an
occupation” speaks of trade and publication like investors,
fashion designers, professors, etc
The commercial list must concern something in trade
The investors, what are those third persons in the stock
market look at?
Prices of the stocks
Where do u find them?
Newspaper
Is that commercial list?
Yes
Is it matter of interest to the person engaged in __?
Yes
Is it contained in a list or registered in other compilation?
Yes
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Is that a prima facie proof of the value of the share? • Necessity - the original expert witness, in perhaps
Yes the larger proportion of the topics upon which he
may be questioned, has not a knowledge derived
What must you show with respect to the quality of the from personal observation
publication? • Trustworthiness – because the learned writer have
That compilation is published for use by persons no motive to misrepresent
engaged in that occupation and generally relied
upon by them therein Examples:
• Almanacs
SCRA is a commercial list that can be relied by the person • Mortality tables
who engages in that trade or profession.
Section 47. Testimony or deposition at a former proceeding. — The
Examples: testimony or deposition of a witness deceased or unable to testify, given in a
former case or proceeding, judicial or administrative, involving the same
• Law reports parties and subject matter, may be given in evidence against the adverse
• Directory party who had the opportunity to cross-examine him.
• Census reports
• Gazettes When are testimonies or deposition at a former proceeding
admissible as evidence?
Section 46. Learned treatises. — A published treatise, periodical or pamphlet Requisites:
on a subject of history, law, science, or art is admissible as tending to prove
the truth of a matter stated therein if the court takes judicial notice, or a
• The testimony or depositions of a witness
witness expert in the subject testifies, that the writer of the statement in the deceased or unable to testify
treatise, periodical or pamphlet is recognized in his profession or calling as • The testimony was given in a former case or
expert in the subject. proceeding, judicial or administrative
• Involving the same parties
What are learned treaties? • Relating to the same matter
Requisites:
• The adverse party having had an opportunity to
It is necessary either:
cross-examine them.
• That the court can take judicial
notice of it Against whom the testimony is being offered to prove the
• A witness, expert in the subject, truth of what the testimony states?
testifies that the writer of the adverse party having had an opportunity to cross-
statement in the treaties, examine them
periodical, or pamphlet is Can u present this written records of testimony if the witness
recognized in his profession or is available?
calling as expert in the subject. No, the witness should be unavailable/incapable to
testify
What is admissible as evidence?
The contents are prima facie proof What is the effect of the lack of jurisdiction of the court over
the subject matter of the case that took the testimony of the
When are these learned treaties admissible? witness?
Requisites There are 2 views, first inadmissible for lack of
nd
jurisdiction. 2 admissible if the court honestly
Someone whose peers recognize him as an expert, this is believe that it had jurisdiction and it acted in good
some kind of a peer review or peer approval. faith

Are law books learned treatises? Is it necessary that the party had one on one similarity
Yes meaning the parties to the one proceeding must be the same
as the parties to the other?
The writer of the statement in the treaties, periodical, or They may not exactly the same parties, the rule of
pamphlet is recognized in his profession or calling as expert in privity applies. Provided that it involves the same
the subject, how should he be recognize in his profession? parties and issue
By his peers
If the issue in one case in between husband and wife on the
What are the reasons for admitting learned treatises? issue that if they were validly married and in the second case
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is whether or not they acquired properties thru their joint i.e. “I saw the accused walking fast.” Is this a statement of
efforts, are they same issues? opinion or of fact?
No Statement of fact

Can the testimony in the first case be used in the second case? “I saw the accused is in a hurry.” This is an opinion. You made
No a conclusion that because he was walking fast he is in hurry.
But it is also probable he was just simply walking fast or that
Is it necessary that the adverse party in the second case is the ordinary way he walks. It does not mean that because
actually cross-examine the witness? he is walking fast it means that he is in a hurry.
No, actual cross-examination is not required, it is
sufficient that he had an opportunity to cross- What is the difference between the two statements? What
examine distinguishes statement of fact and statement of opinion?
There are greater details in statement of fact than
Is it necessary that all the issues in the first case are also that in opinion. The former goes into the specific
present in the second case? details.
It can focus only on one issue
What if the witness said, “He acted negligently,” is this
Will the testimony be presented with respect to all other objectionable?
issues? Yes, because this is an opinion.
No, only to the issue that is identical
“He died of poisoning”
Must the party against whom the testimony is offered in the This is an Opinion
second case must actually the same party who conducted the
cross examination in the first case? “He played the piano well”
No, it can be some other party who has the same This is an Opinion
interest as the party in the second case
How do you make this a statement of fact? How do you state
EVID14 this in details?
Her cadres are perfect. She brings life to the song.
OPINION RULE
May an Opinion be received in evidence?
Section 48. General rule. — The opinion of witness is not admissible, except As a rule, no.
as indicated in the following sections.

When can you receive an opinion as evidence?

Is the opinion of a witness admissible?
Generally no.
What is an opinion?
An inference or conclusion drawn from facts
observed.
What is the reason for rejecting an opinion of a witness as
evidence?
The purpose of trial and reception of evidence is to
establish the facts of a case not opinions and in a
court of law only the judge is allowed to make an
opinion.
Is it easy to separate an opinion from a fact?
No. This is because there is a very fine distinction.
Most of us really form opinions right away rather
than to state the facts.
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On things/matters that are not of common
knowledge of an ordinary person.
Can an ordinary person testify on the mental soundness of
another?
No.
If he says, “He is of unsound mind,” what kind of statement is
this?
Opinion
But what if he says, “He talks to himself.”
This is statement of fact.
A layman can testify on the unusual behavior by saying the
unusual behaviors. But not form an opinion on the soundness
of mind of a person.
Section 49. Opinion of expert witness. — The opinion of a witness on a
matter requiring special knowledge, skill, experience or training which he
shown to posses, may be received in evidence.
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
Do you need an expert opinion on the ff:
• Analysis of body fluids - yes
• Finger Prints - yes
Signature and Handwriting (whether it is genuine or not)
Yes but for authentication purposes a person who
has familiarity with the signature and handwriting
can testify.
Is lie detector test admissible conducted by an expert
admissible?
No. In matters that even the experts are not in
agreement you cannot present expert testimonies.
There is no unanimous agreement among expert
that this is accurate.
Are courts bound by the opinions of experts?
No.
Must courts receive evidence from experts in cases involving
handwritings and signatures?
No. It is not mandatory. This is because ordinary
people can appreciate whether there are similarities
or dissimilarities in signatures and handwritings.
How is an expert witness qualified?
By eliciting from him what makes him an expert
usually by studying in a particular field.
What questions will you ask him?
i.e. a doctor
• How did you become a doctor?
• Did you pass any gov’t examinations for doctor?
• Do you have any specialization as a doctor?
• How long have you been handling cases of this
nature?
• Have you ever testified in court involving cases like
this?
Is Formal education a requirement for being an expert?
No. Expertise is not always derived from formal
education. It can be derived through experience or
education in the field itself
i.e. auto mechanics
Can the opposing party cross-examine the expert regarding
his qualifications?
Yes.
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On what will the expert witness on the stand base his
opinion? Example: The victim died of heart attack. On what
will the doctor base his opinion that the victim died of heart
attack?
Based on the examination of body of the person who
died.
In general, based on what facts will he base his opinion?
1) On facts where he has Personal knowledge
2) On facts appearing on report or testified by other
experts, provided the latter have personal or first
hand knowledge of what they state in their reports
3) On facts established by the evidence on record
Can he give expert testimony without personal knowledge of
the facts of the case?
Yes, based assumed facts
If the assumed facts, which were made as basis, were not
proven in court does the opinion still have evidentiary value?
No. The evidence is useless if the facts are not
proven in court.
Example: The person is deceased already, so he was
not examined by the doctor. The question is whether
the deceased of unsound mind. Now you ask the
doctor, “If a person is 90 years old and he could no
longer remember the name of his children when he
is asked, do you think he is still of sound mind?” Is
the doctor competent to answer this question even
he had no personal knowledge of said facts?
Yes.
Supposing they were not able to prove that the
deceased is 90 years old and cannot remember the
name of his children, does the testimony of the
expert have any value?
None. The statement of an expert has a
value only if the facts on which he based his
testimony are eventually proved in court.
This is if he has no personal knowledge of
those facts.
Examples of matters subject to expert testimony:
• Mental Soundness
• Body Fluids
• Hallucinations
• Mental Condition and Capacity
• Machines; Structures; Materials; Labor
• Identification of Persons by Fingerprints; Footprints;
Blood Tests
• Blood Analysis
• Signature
• Ballistics
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
What are Hypothetical Questions?
These Places before the expert witness assumed
facts which have been proved. It then calls for an
opinion based thereon.
Can hypothetical questions be object to?
Yes.
On what basis?
• When it is improper under some evidentiary
principle,
• incomplete,
• vague
• misleading;
• it fails to furnish the means of knowing on what
premises the conclusion of the expert is it based
(evidence to support its findings)
Would it be proper to ask hypothetical question where there
is no testimony of record tending to prove the facts assumed
in the hypothetical question?
As a rule no.
Is there an exception wherein Hypothetical Questions are
allowed even if no facts are yet proved to support the
assumption?
Although the facts wherein he will testify is not yet
on record, it can be conditionally admitted provided
such facts are proven later. However if such facts are
not proven such testimony will be stricken of the
records (CONDITIONAL ADMISSIBILITY).
If one party gave assumed facts which are in his favor making
the opinion of the expert favorable to him, can the other party
during cross examination supply additional or omitted facts
and ask him whether the opinion he earlier gave would be
modified by them? Is it proper for the expert to answer this
question even if these additional facts are not yet proven?
Yes, provided that later on the cross-examiner must
prove the additional facts he wants to inject. If he
can’t show that then the answer would be useless.
This is a safeguard so that faulty basis will not be
given weight if all material facts were not included.
After you have qualified the expert how will you proceed to
elicit his testimony? How will you present Expert Witness?
1) Introduce and qualify the witness
2) let him give his factual testimony, if he has
knowledge of the facts
3) begin the hypothetical question by asking him to
assume certain facts as true. (Premise of question)
4) Conclude the questions by:
68
•
st
1 asking the expert if he has an opinion on
a certain point assuming that these facts
are true, and
• 2 if he answered affirmatively, ask him to
nd
give his opinion on the point
5) ask him to give his reasons
May an expert be examined based on principle stated in a
reference book? Example: “Doctor that opinion of yours, is it
consistent with what appears to the standard text books?”
Yes.
Sometimes this is trick in cross-examining the witness.
Cross: So you agree with this book that its like this
and like that?
Doc: Yes
Cross: But there is nothing in this book that says
that.
May the expert witness be asked he on other occasions expect
opinions different from what he said in court?
Yes.
Can you ask how much the expert witness is being paid for
testifying in the case?
Yes. This is to determine whether the expert is
biased.
Can you impeach the witness using a text book if what he says
is contrary to what appears in a standard text?
Yes. Learned treatise is admissible in evidence. So if
he collides with the textbook accepted by his peers
as valid and correct the testimony may questionable,
unless he can prove that what he is saying is more
recent findings. Recent findings is valid only if it is
confirmed by his peers in the profession as a valid
principle.
Should an expert witness base his opinion on a certainty? Can
he say that he is certain in his opinion? “I am certain the he
committed suicide because of the wounds he received from
the gun.”
Yes
Can he say also that it is probable that he committed suicide?
Is this admissible?
Yes. it is only that this has lesser weight when he is
certain.
Supposing that “it is possible that he committed suicide” is
this also good expert testimony?
Yes. Possibility and probability are something that
can be appreciated by the court.
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Example: Witness can say he died of heart attack. How about quantity? (witness) He brought 1 gallon of water.
(cross) It possible that he died of other illnesses He did not actually measure this. He just made an estimate. Is
other than of heart attack? this admissible in evidence?
(witness) Yes, but there is possibility. Yes.
Question: Is it admissible
Yes (witness) He is 5ft 2. Is this admissible?
Yes
If an expert witness gives an opinion based on his recent
formulation, not based on a textbook, but based on his Witness was asked, “How much was the value of the shirt
studies. Can the court accept this? that he stole from you?”
Yes. This only affects the weight of such testimony. Allowed.

If the issue is whether or not a particular picture is obscene Witness said he saw the accused carrying a box. (cross) How
can the court require expert testimony? heavy is the box? It was the accused who was carrying the
No because obscenity is not a matter of expertise. box, not the witness. Is this allowed?
Expert testimony is required only on matters which Yes.
are not common or not based on common
knowledge or experience. (cross) About what time was it when you saw him?
Allowed.
Essentially what is it that would persuade a judge to accept
an opinion of an expert? What is the TEST OF ACCEPTABILITY (cross) How far was the accused from you when you saw him
of the testimony of the expert witness? shoot the victim?
The reasonableness of his opinion. The expert (witness) 5 m. Is this allowed?
cannot just give his opinion. He must explain the Yes
reasons behind such opinion. He must convince the
court that those reasons are valid/good reasons. (cross) How fast was he running?
Allowed.
Section 50. Opinion of ordinary witnesses. — The opinion of a witness for
which proper basis is given, may be received in evidence regarding — (cross) How big was his shoes?
allowed
(a) the identity of a person about whom he has adequate
knowledge;
(cross) How was he? Here the witness doesn’t know the day
of birth of said person.
(b) A handwriting with which he has sufficient familiarity; and
Allowed
(c) The mental sanity of a person with whom he is sufficiently
acquainted. What is the REASON for the admission of testimony of
ordinary witnesses for these matters?
The witness may also testify on his impressions of the emotion, behavior, Necessity or expediency.
condition or appearance of a person.
(cross) What was her reaction when you told her that?
When is an opinion of an ORDINARY WITNESS admissible in (witness) She smiled.
evidence? Is this an opinion or statement of fact?
• identity of a person about whom he has adequate Statement fact
knowledge
• handwriting with which he has sufficient familiarity How about (witness) “She was happy.”
• mental sanity of a person with whom he is Opinion.
sufficiently acquainted
• his impressions of the emotion, behavior, condition Is this allowed or not?
or appearance of a person Allowed

Example: Identity of a person – (cross) Is he a man or a Why is the witness allowed to testify on an emotion?
woman? (witness) She’s a woman. Is this an opinion? Is this Yes because it is hard to give more details or
valid? describe such matters.
Yes
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Because it is recognized that a person can form a good
judgment about appearances, but he can never adequately
communicate to others that fact except in a shape of an
opinion.
Example. He was sad? This is an opinion. Why is this allowed?
Can you give more details to show sadness?
He had a long face. His eyes are drooping. It’s hard
for a person to describe the face and say he is sad.
Can you give the description wherein the court can
make an opinion that he is sad.
Can a person identify a person by voices, even if he did not see
the person?
Yes. If he is familiar or can recognize that person’s
voice.
Can ordinary witness testify regarding handwritings?
Yes he can if he is familiar with it.
Can a person render an opinion based on the speed of a
vehicle?
Yes if you are always driving a car and you always
observe the speed of cars.
It can be a product of common experience.
Can an ordinary person testify as to the value of a land?
Yes if he is familiar with the real estate value of the
land in such place.
Section 51. Character evidence not generally admissible; exceptions: —
(a) In Criminal Cases:
(1) The accused may prove his good moral character
which is pertinent to the moral trait involved in the
offense charged.
(2) Unless in rebuttal, the prosecution may not prove
his bad moral character which is pertinent to the moral
trait involved in the offense charged.
(3) The good or bad moral character of the offended
party may be proved if it tends to establish in any
reasonable degree the probability or improbability of
the offense charged.
(b) In Civil Cases:
Evidence of the moral character of a party in civil case is
admissible only when pertinent to the issue of character involved
in the case.
(c) In the case provided for in Rule 132, Section 14, (46a, 47a)
70
What is CHARACTER?
Aggregate of the moral qualities which belong to and
distinguish an individual person; the general result of
the one’s distinguishing attributes.
Can this be a proper subject of a testimony? When will
CHARACTER EVIDENCE be presented?
Generally it is not admissible
Exceptions: -
a) In Criminal Cases:
1. The accused may prove his good moral character
which is pertinent to the moral trait involved in the
offense charged
2. Unless in rebuttal, the prosecution may not prove
his bad character which is pertinent to the moral
trait involved in the offense charge.
-
It is a prerequisite for presenting previous evidence of bad
character that the person’s character is in question made a
claim that he is of good character. Other wise you cannot.
Because of the danger that the accused may convicted or
case be decided based on his bad character rather than
whether or not the offense was committed.
i.e. He is a hoodlum. He might be convicted because he is
hoodlum rather than whether or not he committed the
offense.
3. the good or bad moral character of the offended
party may be proved if it tends to establish in any
reasonable degree the probability or improbability
of the offense charged.
b) In Civil Cases:
Evidence of moral character of a party in civil case is
admissible only when pertinent to the issue of
character involved in the case
c) In the case provided for in Rule 132, Sec. 14
Evidence of the good character of a witness is not admissible
until such character has been impeached.
Can you present character evidence to impeach a witness?
Yes
How?
A witness may be impeached by the party against
whom he was called, by evidence that his general
reputation for truth, honesty, or integrity is bad,
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Can he also be impeached by evidence of particular wrongful?
No. Except that it may be shown by the examination
of the witness acts that he has been convicted of an
offense.
Section 1. Burden of proof. — Burden of proof is the duty of a party to
present evidence on the facts in issue necessary to establish his claim or
defense by the amount of evidence required by law.
What is BURDEN OF PROOF?
The duty of a party to present evidence on the facts
in issue necessary to establish his claim or defense
by the amount of evidence required by law
What is PROOF?
Required degree of belief; the accumulation of
evidence established as given facts concerning the
issue sufficient to persuade the court to decide a
particular factual issue.
Sometimes called the BURDEN OF PERSUATION.
What is the difference between BURDEN OF PROOF and
BURDEN OF EVIDENCE? Where does the BURDEN OF
EVIDENCE SHIFT?
Shifts from one party to another.
Example: The prosecution presented evidence that accused
stabbed the victim to death. Who has the burden to prove the
guilt of the accused?
The prosecution.
If there is a testimony already of record that the witness saw
the accused stabbed the victim to death and the prosecution
rested its case. Does the defendant bear any burden at that
point?
Yes. This is the burden of evidence. It shifts to the
defendant. If he does not testify he will be convicted.
How about the BURDEN OF PROOF, does this shift to the
defendant to prove his innocence?
No. Burden of proof is always with the prosecution.
WHO HAS THE BURDEN OF PROOF in any case?
The burden is always on the party who takes the
affirmative of the issue
What is the AFFIRMATIVE OF THE ISSUE? Example: Plaintiff
files an action against a defendant for non-payment of debt.
The defendant denies that he owes money. Who has the
burden of proof?
The plaintiff. He has the burden to prove the
affirmative of the issue.
What is the issue?
Whether or not the defendant failed to pay his debt.
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Who has the affirmative of the issue here?
Plaintiff
Can you say whether or not the defendant paid his debt?
Who has the affirmative of the issue?
Defendant
The burden of proof is on that side who claims a wrong doing
or violation of a right. The one who asserts the wrongdoing
has the AFFIRMATIVE OF THE ISSUE.
The one who claims that there is no wrong doing has the
NEGATIVE OF THE ISSUE.
What are the different DEGREES OF PROOF?
1) In a Civil Case – PREPONDERANCE OF EVIDENCE.
Which is weightier. Which evidence presents greater
weight the plaintiff or the defendant.
Which evidence is heavier, meaning more
convincing.
Clear and convincing - In some cases, like fraud, for
reasons of public policy, a higher burden of
persuation is required.
2) In a Criminal Case – PROOF BEYOND REASONABLE
DOUBT
3) In an Administrative Case – SUBSTANTIAL
EVIDENCE.
In the case of negative allegations to whom does burden of
proof rest?
Upon the person who makes the negative allegation
if the negative allegation forms part of his statement
of his right.
Example: You have right to collect rent. Will you be
entitled to collect rent if you don’t allege that you
have not been paid?
No. The burden of proving your negative
allegation is part of your claim. Your claim
will not be established until you prove the
negative allegation of non-payment.
Who has the burden of producing the evidence in court?
Upon the party who will loose the case if no
evidence is presented.
Who has the burden of proving payment?
The defendant who claims payment
In an action for tort (injuries arising from negligence), what is
the burden of the plaintiff?
To prove the wrongful act or negligence of the
defendant.
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In an action based on contracts, who has the burden of
proving that the contract and its execution?
Plaintiff
When the contract is conditional who has the burden of
proving that the condition has taken effect hence
enforceable?
The one who relies to the contract for his defense or
action.
When the contract is admitted and the goods covered by it
has been accepted, who has the burden of proving that it is
not performed in accordance to what is required in the
contract?
The defendant who rejects the performance. He
accepted the goods already the burden is on you to
prove it is not the right goods.
In an action on a negotiable instrument (i.e. check) who has
the burden of proving the right to recover on that check?
The plaintiff has the burden of proving every
material fact upon which his claim of right of
recovery is predicated, including his own title and
bona fides of his holding of the instrument.
Where the title to the real property is claimed by reason of
adverse possession, who has the burden of proving the
essential facts of continuous adverse possession for the
required period?
The one who claims the property as his own must
show that he has been in possession of so long.
Who has the burden of proving employer-employee relation?
The party who invokes the relationship as basis of
claim or cause of action.
Who has the burden of sustaining the grounds of his motion?
The movant
Who loses the case if no evidence is presented in an action
(neither party presented evidence)?
The plaintiff is always the one who loses the case.
The defendant is also be plaintiff with respect to his
counter-claim.
Who has the burden to prove exceptions in an insurance
contract?
The one who claims the exception. The burden is
upon the insurer to prove that the risk fall within the
exception (so that he will not be liable).
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What is the presumption with respect to breach of contract of
carriage?
Common carries is at fault and did not exercise
extraordinary diligence.
In case of death of or injuries to passenger, common carriers
are presumed to have been at fault or to have acted
negligently, unless they prove that they observed
extraordinary diligence prescribed in Art 1733 and 1755 (Art.
1756 CC).
What is the RULE OF RES IPSA LOQUITOR?
Res ipsa loquitor literally means the “transaction
speaks for itself.”
Where the thing which caused injury, without fault
of the injured person, is under the exclusive control
of the defendant and the injury is such as in the
ordinary course of things does not occur if he having
such control use proper care, it affords reasonable
evidence, in the absence of the explanation, that the
injury arose from defendant’s want of care.
The burden is shifted to him to establish that he has
observed due care and diligence.
Who has the burden of proving an affirmative allegation of
good faith?
On who alleges Bad Faith because Good faith is presumed.
What are the MATTERS WHICH NEED NOT BE PROVED in
court?
• Immaterial allegations
• Facts admitted or not denied provided they have
been sufficiently alleged
• Agreed and admitted facts
• Facts subject to judicial notice
• Facts legally presumed
When the defendant admits he didn’t answer his obligations
to the plaintiff but he pleads a special defense, may the
plaintiff forego presentation his evidence that the defendant
owes money?
Yes. A special defense means he admits the
allegation of the plaintiff but he had a special
defense.
Example: Yes I owe you money but it was already
set-off against the obligation of the plaintiff to the
defendant.
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Supposing the defendant party has the control of the better
means of proof of the fact, Example:. In a claim of an injured
pedestrian against the employer of the driver who bumped
him, the employer can best established the relationship of
employer- employee. Will this relieve the claimant of having
the prove that the driver is the employee of the owner?
No.
So what is your remedy?
Subpoena, Cross examine the owner. Subpoena the
documents proving employment
Is the prosecution required to prove his negative allegations
of fact?
Yes.
When? Should the prosecution prove his negative allegation
all the time? Example: illegal possession of firearms. You can
say the firearms of the accused is not licensed.
When the allegation is an essential element of a
crime.
When the law defines a crime concerning a class or specie but
grants an exception from its operation, does the information
have to deny the application of the exception to the accused?
Example: Anyone who does this thing shall be liable except
____. Can you object and say ____ and he does not fall under
the exception. Do you have allege that?
No. You only have to prove the essential elements of
the crime. If he is exempted the burden is on him.
Exception is not an essential element of a crime. The
burden is upon the defense to prove that he is
within the exemption.
When the defendant admits in his answer obligation to the
plaintiff (yes I owe you that money) but he pleads a special
defense that his action is already prescribed may the plaintiff
forego the presentation of his evidence?
Yes. When the defendant pleads a special defense
the burden of evidence is shifted to the defendant.
May the accused be convicted for the reason that his defense
is weak?
The accused is presumed innocent and can only be
convicted when the prosecution proves the he is
guilty beyond reasonable doubt.
The prosecution must prove all the elements of the crime
charged. In so doing the prosecution must rely on the
strength of its own evidence, not on the weakness of the
defense.
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If the accused invokes self-defense where does the burden of
proof rest?
Upon the accused.
EVID15
PRESUMPTIONS
What is a PRESUMPTION?
A fact that is unknown is inferred from a fact that is
known.
Example: It maybe presumed that you have a father.
Does a presumption SHIFT THE BURDEN OF GOING FORWARD
WITH EVIDENCE?
Yes. If a certain fact is presumed the burden shifts to
the other side to prove that it does not exist.
When a fact is presumed does it imply that THE PARTY IN
WHOSE FAVOR THE PRESUMPTION EXISTS DOES NOT HAVE
TO PRESENT EVIDENCE concerning that fact?
Yes. The presumption dispenses with need for
evidence.
What is the REASON for the rules considering or establishing
this presumption? From what is presumption based?
These are based on experience.
Is there a presumption of employer-employee relation the
driver of a vehicle and the owner of the vehicle?
If it is a -
• private vehicle - there is no presumption.
• commercial vehicle – there is a presumption
that there is Employer-Employee
relationship if ownership is proven.
* Contra PRESUMPTION OF AGENCY - It can be presumed that
a person driving the vehicle was doing so in the scope of his
employment and in the course of business of the defendant,
by proving that the defendant was the owner.
Can the CONGRESS pass a law that provides, “where certain
facts are proved these shall be prima facie evidence of an
existence of an offense?”
Yes.
Example: When is a cashier is short of funds there is a
presumption that he malversed the funds. This is because
there is no reason from shortage of funds.
May presumption take place of evidence and SUPPORT A
DECISION?
Yes. This is why some courts dispenses of the need
to present evidence.
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What is the THAYERIAN RULE or BURSTING BUBBLE THEORY?
The presumption is like a bubble; if you prick it and it
burst then presumption is gone.
This means if it is overcome by evidence
presumption would not hold anymore.
* When opposing evidence comes into the case, the
presumption having served its purpose, is no longer operative
and the issue is determined on the evidence just as though no
presumption has ever existed.
What is the rule if the PRESUMPTION OF INNOCENCE is in
conflict with another presumption?
Former prevails because it is highly favored.
WHAT MUST A PARTY SHOW so that he could benefit from a
presumption established by the rules?
• Existence of known facts from which the
presumption would arise.
• You must prove the basic facts before there can be
presumed facts.
What are SOURCES OF BASIC FACTS? How do you show basic
facts?
By:
• Judicial knowledge
• Pleadings
• Stipulation
• Evidence which compels a finding of the
basic facts
Can a PRESUMPTION/inference rest ON ANOTHER
PRESUMPTION/inference?
No. presumptions must be based on facts and not
upon inference or other presumptions.
*PYRAMIDING PRESUMPTIONS or Inference – Inference may
rest on inference or on presumption to the extent that reason
and the necessities of the case require it in the interest of
justice. This becomes more apparent where the primary
inference or presumption has the standing of a proved fact.
Section 2. Conclusive presumptions. — The following are instances of
conclusive presumptions:
(a) Whenever a party has, by his own declaration, act, or
omission, intentionally and deliberately led to another to believe
a particular thing true, and to act upon such belief, he cannot, in
any litigation arising out of such declaration, act or omission, be
permitted to falsify it:
(b) The tenant is not permitted to deny the title of his landlord at
the time of commencement of the relation of landlord and tenant
between them.
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What are the instance of CONCLUSIVE PRESUMPTIONS?
a) When a party misleads or make another
belief certain things he is not permitted to
falsify/deny it (Estoppel in pais)
b) Tenant cannot the deny the title of his
landlord upon the commencement of the
landlord and tenant relationship (Estoppel
against tenant)
Can conclusive presumptions be CONTRADICTED by evidence?
No.
st
What are the elements of the 1 estoppel? What must be
shown?
- in relation to the:
a) party guilty of it (party estopped)
• He mad false representations/concealment
of material facts
• intent that the that the conduct shall be
acted upon/influence the other party
• Knowledge of the real facts – he misleads
knowing the facts to be untrue
b) party claiming the estoppel
• lack of knowledge or means of knowledge
of the truth
• reliance in good faith
• he acted or omitted actions (you did not
act) based on the misrepresentation
Will the presumption arise if the party claiming it has been
misled by his own RECKLESSNESS?
No. Good faith requires the exercise of reasonable
diligence to learn the truth. If the party conducts
himself with careless indifference to means of
information reasonably at hand, or ignores highly
suspicious circumstances he may not invoke
estoppel.
Example: You buy a land with a title then you say you do not
know there is an encumbrance on the title, when the title
was shown to you.
Is there estoppel when holds out another as an agent, can he
be permitted to disown the acts of that agent?
No. (estoppel to deny agency)
How about the case of wife in collusion with her husband
concealed her civil status the wife and Later on sold
properties. Is the husband allowed to deny the validity of the
sale?
No. (estoppel to deny validity of sale)
The landowner allowed the railroad company to build railroad
tracks on his property and led to it to believe that it is public
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land and claims for damages. Can he question the propriety of
the construction without his permission?
No.
Can a person who sold a property that he does not own, deny
the validity of the sale after he acquired the property?
No.
What is required of a party who is invoking ESTOPPEL
AGAINST A TENANT who denies the landlords title? What
must he show?
1) Existence of landlord and tenant relationship
concerning the property
2) Tenant denies the title of his landlord at the
time of the commencement of the said relation.
Can the PAYMENT OF RENTALS or receipt issued by the
landlord for the rent be sufficient to show that relationship?
Yes.
If the title that the tenant later asserts against the owner is
one the tenant acquired after the relationship started will this
presumption still apply?
No. What the tenant is estopped from denying is the
title of the landlord at the time of the
commencement of the land-lord tenant relation.
Section 3. Disputable presumptions. — The following presumptions are
satisfactory if uncontradicted, but may be contradicted and overcome by
other evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his
voluntary act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be adverse if
produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the
latter;
(h) That an obligation delivered up to the debtor has been paid;
(i) That prior rents or installments had been paid when a receipt
for the later one is produced;
(j) That a person found in possession of a thing taken in the doing
of a recent wrongful act is the taker and the doer of the whole
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act; otherwise, that things which a person possess, or exercises
acts of ownership over, are owned by him;
(k) That a person in possession of an order on himself for the
payment of the money, or the delivery of anything, has paid the
money or delivered the thing accordingly;
(l) That a person acting in a public office was regularly appointed
or elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the
Philippines or elsewhere, was acting in the lawful exercise of
jurisdiction;
(o) That all the matters within an issue raised in a case were laid
before the court and passed upon by it; and in like manner that all
matters within an issue raised in a dispute submitted for
arbitration were laid before the arbitrators and passed upon by
them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a
sufficient consideration;
(t) That an endorsement of negotiable instrument was made
before the instrument was overdue and at the place where the
instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the
regular course of the mail;
(w) That after an absence of seven years, it being unknown
whether or not the absentee still lives, he is considered dead for
all purposes, except for those of succession.
The absentee shall not be considered dead for the purpose of opening his
succession till after an absence of ten years. If he disappeared after the age
of seventy-five years, an absence of five years shall be sufficient in order that
his succession may be opened.
The following shall be considered dead for all purposes including the division
of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage,
or an aircraft with is missing, who has not been heard
of for four years since the loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part
in armed hostilities, and has been missing for four
years;
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(3) A person who has been in danger of death under
other circumstances and whose existence has not been
known for four years;
(4) If a married person has been absent for four
consecutive years, the spouse present may contract a
subsequent marriage if he or she has well-founded
belief that the absent spouse is already death. In case
of disappearance, where there is a danger of death the
circumstances hereinabove provided, an absence of
only two years shall be sufficient for the purpose of
contracting a subsequent marriage. However, in any
case, before marrying again, the spouse present must
institute a summary proceedings as provided in the
Family Code and in the rules for declaration of
presumptive death of the absentee, without prejudice
to the effect of reappearance of the absent spouse.
(x) That acquiescence resulted from a belief that the thing
acquiesced in was conformable to the law or fact;
(y) That things have happened according to the ordinary course of
nature and ordinary nature habits of life;
(z) That persons acting as copartners have entered into a contract
of copartneship;
(aa) That a man and woman deporting themselves as husband
and wife have entered into a lawful contract of marriage;
(bb) That property acquired by a man and a woman who are
capacitated to marry each other and who live exclusively with
each other as husband and wife without the benefit of marriage
or under void marriage, has been obtained by their joint efforts,
work or industry.
(cc) That in cases of cohabitation by a man and a woman who are
not capacitated to marry each other and who have acquire
properly through their actual joint contribution of money,
property or industry, such contributions and their corresponding
shares including joint deposits of money and evidences of credit
are equal.
(dd) That if the marriage is terminated and the mother contracted
another marriage within three hundred days after such
termination of the former marriage, these rules shall govern in
the absence of proof to the contrary:
(1) A child born before one hundred eighty days after
the solemnization of the subsequent marriage is
considered to have been conceived during such
marriage, even though it be born within the three
hundred days after the termination of the former
marriage.
(2) A child born after one hundred eighty days
following the celebration of the subsequent marriage
is considered to have been conceived during such
marriage, even though it be born within the three
hundred days after the termination of the former
marriage.
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(ee) That a thing once proved to exist continues as long as is usual
with things of the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or
published by public authority, was so printed or published;
(hh) That a printed or published book, purporting contain reports
of cases adjudged in tribunals of the country where the book is
published, contains correct reports of such cases;
(ii) That a trustee or other person whose duty it was to convey
real property to a particular person has actually conveyed it to
him when such presumption is necessary to perfect the title of
such person or his successor in interest;
(jj) That except for purposes of succession, when two persons
perish in the same calamity, such as wreck, battle, or
conflagration, and it is not shown who died first, and there are no
particular circumstances from which it can be inferred, the
survivorship is determined from the probabilities resulting from
the strength and the age of the sexes, according to the following
rules:
1. If both were under the age of fifteen years, the older
is deemed to have survived;
2. If both were above the age sixty, the younger is
deemed to have survived;
3. If one is under fifteen and the other above sixty, the
former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex
be different, the male is deemed to have survived, if
the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other
between those ages, the latter is deemed to have
survived.
(kk) That if there is a doubt, as between two or more persons who are called
to succeed each other, as to which of them died first, whoever alleges the
death of one prior to the other, shall prove the same; in the absence of
proof, they shall be considered to have died at the same time.
What are DISPUTABLE PRESUMPTIONS?
Presumptions regarded as sufficient or satisfactory
until overcome/contradicted by other evidence.
When an accused is charged of a crime or a wrong what is the
presumption regarding his liability?
That the person is innocent.
When a person commits an unlawful act, what is the
presumed intention?
It was done with unlawful intent
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Example: A person throws a stone to another and
injures him. It is presumed that he intended to cause
the harm.
What is the presumption of ones voluntary act?
He intends the ordinary (expected) consequences of
his voluntary act.
Example: If you parked your vehicle uphill the
ordinary precaution is to steer your wheel at angle
so that if it slides it will curve. If you don’t then it
slides down you are liable for the damages that
might be caused.
What is the presumption of a person taking care of his
concerns?
That he takes ordinary care of his concerns.
What is the presumption if evidence is willfully suppressed?
That it will be adverse to you.
What is the presumption when money paid by one to
another?
That it was due to the person to whom it was paid
What is the presumption when a thing delivered by one to
another?
That he owns it. (That it belonged to the latter)
What is the presumption when the debtor is in possession of
the promissory note?
That evidence of the obligation is delivered to him
What is the presumption when prior installment or rent has
been paid with respect to previous installment or rent?
That the previous installment or rent has already
been paid
What is the presumption when a person found in possession
of a thing taken in the doing of a recent wrongful act?
That he is the taker and the doer of the whole act.
Example: In a bag snatching. 2 boys are running.
They were both caught. The one who has the bag is
presumed to be the one who stole the bag.
What is the presumption when a person is in possession of a
thing? Example: You are holding a cellphone. Who is
presumed to own the cellphone?
You. What you have presumably belongs to you.
* It is presumed that things which a person possess, or
exercises acts of ownership over, are owned by him.
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What is the presumption if a person in possession of an order
on himself (negotiable instrument – to pay to the order of) for
the payment of the money, or the delivery of anything
(negotiable instrument – to pay to the order of…)?
That he has paid the money or delivered the thing
accordingly;
What is the presumption when a person acting in a public
office?
That he was regularly appointed or elected in that
office.
What is the presumption in the performance official/public
duty?
That it has been regularly performed
What is the presumption when a court, or judge acting as
such, whether in Philippines or elsewhere?
That he was acting in the lawful exercise of
jurisdiction
What is the presumption when all the matters within an issue
raised before the court or to arbirtration?
That the issues were properly raised and passed
upon.
What is the presumption when private transactions?
That they have been fair and regular
What is the presumption in an ordinary course of business?
That course of business was followed
What is the presumption about the consideration in a
contract?
That there was sufficient consideration
What is the presumption if a negotiable instrument was given
or indorsed?
That it was done for a sufficient consideration
What is the presumption on when and where the indorsement
of negotiable instrument was executed?
That it was made before the instrument was
overdue and at the place where the instrument is
dated
What is the presumption concerning letters that are duly
directed and mailed?
That they were received in the regular course of the
mail.
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What is the presumption concerning an individual if after an
absence of 7 years, it being unknown whether or not the
absentee still lives?
He is considered dead for all purposes, EXCEPT for
those of succession.
For purposes of opening his succession when is he considered
dead?
Till after an absence of 10 years.
If he disappeared after the age of 75 years, an
absence of 5 years shall be sufficient
The following shall be considered dead for all purposes
including the division of the estate among the heirs:
1) A person on board a vessel lost during a sea
voyage, or an aircraft which is missing, who has
not been heard of for 4 years since the loss of the
vessel or aircraft;
2) A member of the armed forces who has taken
part in armed hostilities, and has been missing
four years
3) A person who has been in a danger of death
under other circumstances and whose existence
and whose benefits has not been known for 4
years
i.e. persons who are in risky professions
4) If a married person has been absent, when may
the spouse present contract subsequent
marriage?
If the spouse has been absent for 4 consecutive years and the
present spouse has a well founded belief that the absent
spouse is already dead.
In case of disappearance, where there is danger of death an
absence of only 2 years shall be sufficient
HOWEVER in any case, before marrying again, the spouse
present must institute a SUMMARY PROCEEDING as provided
in the Family Code and in the rules for a declaration of
presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse.
What is the presumption for a person believing that thing
acquiesced in was conformable to the law or facts?
That acquiescence resulted from a belief that the
thing acquiesced in was conformable to the law or
fact.
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What is the presumption when things have happened?
That things happened in according to the ordinary
course of nature and ordinary habits of life.
What is the presumption with respect to persons acting as co-
partners?
That they entered into a co-partnership contract
What is the presumption when a man and woman represent
themselves as husband and wife?
That they entered into a marriage contract (they are
lawfully married).
What is the presumption regarding the property acquired by a
man and woman who are capacitated to marry each other
and who live exclusively with each other as husband and wife
without the benefit of marriage or under a void marriage?
That the property has been obtained by their joint
efforts, work or industry. (So they can divide the
property in case they liquidate).
What is the presumption in cases of cohabitation by a man
and woman who are not capacitated to marry each other and
who have acquired property through their actual joint
contribution of money, property or industry?
That such contributions and their corresponding shares
including joint deposits of money and evidences of credit are
equal.
What is the presumption if the marriage is terminated and
the mother contracted another marriage within 300 days
after such termination of the former marriage, these rules
shall govern in the absence of proof to the contrary:
1) A child born before 180 days after the solemnization
of the subsequent of the subsequent marriage is
considered to have been conceived during the
former marriage
2) A child born after 180 days following the celebration
of the subsequent marriage is considered to have
been conceived during such marriage, even though it
be born within the 300 days after termination of the
former marriage
What is the presumption if thing is once proved to exist?
That it continues as long as is usual with things of
that nature.
Example: It is proved that he own a dog. It is
presumed that it lived within the life time of a dog.
What is the presumption concerning obedience to the law?
That law has been obeyed
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What is the presumption concerning printed or published
book, purporting to be printed or published by public
authority?
That it was so printed or published
What is the presumption when printed or book, purporting to
contain reports of cases adjudged to tribunals of the country
where the book is published?
That such contains correct reports of such cases
What is the presumption when a trustee or other person
whose duty it was to convey real property to a particular
person?
That the trustee has actually conveyed it to him
ONLY when such presumption is necessary to perfect
the title of such person or his successor-in-interest
jj) EXCEPT for purposes of succession, what is the
presumption when 2 persons perish in the same calamity,
such as wreck, battle, or conflagration, and it is not shown
who died first, and there are no particular circumstances
from which it can be inferred, the survivorship is determined
from the probabilities resulting from the strength and age
according to the following rules:
1) both under 15 years - the older
2) both above 60 yrs - the younger
3) one is under 15 and the other above 60 – the former
(younger)
4) both over 15 and under 60, and if different sex - the
male
if same sex - the older;
5) one is under 15 or over 60, and the other between
those ages - the latter
If there is a doubt, as between 2 or more persons who are
called to succeed each other, as to which of them died first,
what is the presumption?
Whoever alleges the death of one prior to the other,
shall prove the same;
if there is no proof, they shall be considered to have
died at the same time.
Doe the presumption that a person is innocent of a crime or
wrong apply only to criminal cases?
No. this apply to civil cases.
Example: You owe me money and who have not paid
me. Is there is a presumption here?
Yes. It is presumed that you don’t owe me
money and you paid me.
There is a presumption that a person has not committed any
wrong. The one who claims a wrongdoing must prove it.
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Will the presumption of innocence prevail over the
presumption of chastity?
Yes. In some jurisdiction like in US.
What is the presumption in the Philippines with respect to
virginity in a seduction case?
The woman is presumed virgin if it is shown that she
is:
• over 12 but under 18
• single
• of good reputation
If the accused pleads insanity in a criminal case does he have
the burden of proving it?
Yes because the presumption is sanity.
In civil cases, does the presumption of validity of marriage
prevails over the presumption of continuance of an
invalidating state of insanity?
Yes. Presumption of validity of marriage shall prevail.
An unlawful act is presumed to have been done with unlawful
intent. Does it follow that any wrongful act is presumably
born of a wrongful intent?
No. The act from which the presumption springs
must be a criminal act otherwise the presumption
does not arise.
A person presumably intends the ordinary consequences of his
voluntary act, can he show things that happen that are
completely foreign to what he did and he did not intend to
happen?
Yes. The presumption is disputable.
* All those who are responsible for an act which constitutes a
crime are equally liable for all the consequences arising
therefrom and which are inherent therein.
When a person sell his property for much less than its true
value does this mean that his consent was not properly
obtained and the sale should be annulled? Example: the
value of the property is P5 M but he sold it for P3 M
No. The law will not protect the foolish.
*It is a presumed that a person takes ordinary care of his
concerns. When of age and sane, they must take care of
themselves.
Ordinarily, can a person deny knowledge of the contents of
the contract which he signed?
No. It is presumed that a person does not sign a
document without informing himself of its contents.
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Does this presumption apply to person who is unable to read?
Yes. If your are unable to read the presumption is
that you procure someone who is able to read and
explain it to you.
What happens if the party liable to pay damages under the
circumstances of the case have in his possession that would
rebut evidence against him yet he failed to adduce it in his
defense?
If he presents it, it will do him no good. The fact that
he did not present it shows that it is adverse to him.
He cannot say that it can be considered in his favor.
Will the presumption of adverse evidence apply in a case
when such evidence is available to both the defense and the
plaintiff?
NO.
Will the failure of a party to offer in evidence a deposition
that he has taken from the adverse party amount to willful
suppression of evidence?
No. There is no concealment because it is known to
the adverse party. If you do not want to present it is
your right. Deposition is an evidence that is available
to the adverse party as well
The presumption applies only when you conceal it
and the other party does not know about it.
When does the presumption arising from suppression of
evidence not applicable?
1) not willful
2) only corroborative or cumulative
3) accessible to/at the disposal of both parties
4) exercise of a privilege
Will the presumption of willful suppression apply when the
prosecution did not present the police informant/asset still
working incognito?
No. To parade them in court would destroy their
usefulness
What if he is known to everybody will there still be
presumption of suppression of unfavorable evidence?
No. The right to present evidence belongs to the
parties. They can choose the witness they want to
present so there is no adverse effect to this.
Will there be adverse presumption from the refusal of the
accused to testify in his defense? Is he presumed guilty?
No. That is his right not to testify. This is an absolute
right. No inference can be derived from an exercise
of a right.
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*An accused has the right to remain silent and not adverse
inference should be drawn from silence.
Is the possessor of a recently stolen article presumed to be an
accessory or accomplice in a crime of theft?
No. It is presumed that he is the principal, unless he
proves in satisfactory manner that he is but an
accessory or an accomplice thereto and that another
person is the one who stole it from another..
If only a portion of the stolen goods are found in the
possession of is he presumed to have stolen all of the goods
that where taken from the owner? Example: 5 drums of
vinegar were stolen only 1 was found to be in his possession.
It is presumed that he also stole the other drums?
Yes. The presumption is applicable to the defendant
with regard to all of the properties stolen at the
same time and place, when a party thereof is found
in his possession including prior and unexplained
possession.
What is required for the presumption that the possessor of a
recently stolen article is the thief? Example: Your cell phone is
missing, after 3 weeks it was found in the possession of your
classmate. What is required to shown for there to be a
presumption that he is the thief?
Elements for the presumption to arise:
• a crime has been committed
• it was committed recently
• accused was found in possession of the
stolen goods (Actual/prior)
• failure to explain his possession
satisfactorily
It is presumed that a forged document is forged by the one
who used it (USER-FORGER). Essentially can you present
evidence proof of falsified documents?
Very seldom. By the nature of things the one who
forged the falsified document does it secretly, not
before the notary public.
Example: You used a fake UST diploma to get
employed. If you were asked who made the diploma,
can you say, “Hindi ako. Sa Recto…”?. What is the
presumption?
It is presumed that you were the one who
forged it or caused it to be forged.
If a person is caught spending counterfeit money, is there a
presumption that he is the counterfeiter?
Yes.
Can he overcome such presumption?
Yes
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
You should not know that it is counterfeit money. If you know
that it is counterfeit you have the duty to surrender or
destroy it.
What is the presumption where payment of check is refused
by the drawee because of insufficient funds in or credit with
said banks when presented within 90 days from date of
check?
It is presumed that person who issued it has
knowledge of insufficiency of funds.
What is the basis of the presumption that a person in
possession of a property has the right to do so?
You wont let other people use your property without
your permission.
A chimney sweeper’s boy found a jewel, brought it to a
goldsmith to be valued. The goldsmith refused to return the
jewel to the boy. What is the implication if the boy established
that he had prior possession of the jewel? Does he have a
right to it even if he only found it in the chimney?
He can claim it because of his prior possession until
it is shown that there is another owner.
* The presumption of rightful possession carries with it the
implication of ownership until it is shown that the possession
is in some other capacity.
Is there a presumption of ownership if the one who holds the
property is an agent?
None.
Presumption of regularity of the performance of an official
act.
In mailing, if you put properly address, a stamp the
presumption is that it is delivered because the post office is a
government office presumably regularly performing its duty
to deliver.
What is the reason for this presumption concerning
performance of a public duty?
• the presumption is that people do what is right
• innocence and not wrongdoing is presumed
• an official oath will not be violated
• a republican government will be immobilized -
cannot survive long unless a limit is placed upon
controversies and certain trust and confidence
reposed in each governmental department or agent
by very other such department or agent at least to
the extent of such presumption
Does the presumption apply to lawyers and notary?
Yes because they are considered quasi public officers
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Is the presumption confined in official acts?
No. applies to recordings in public books.
Would the presumption of regularity extend to corporate
acts?
Yes.
Is there is presumption of authority when a president executes
a contract for the corporation? Is it presumed that he is
authorized by the corporation?
Not all. Usually you always need a board resolution
authorizing the president to perform certain acts.
There is no presumption in these cases.
Can the presumption of regularity be rebutted by evidence?
Yes
What is presumption when the Deputy Sheriff of a court
whose duty is attest prompt and effective service of summons
makes a return of service of the summons?
That he made a proper service. He performed
regularly his official duty.
Do priests or ministers have the duty to investigate whether
the license has been issued by the officer duly authorized by
law?
None
What is the presumption when the jurisdiction of a competent
court is attacked?
It is presumed that the court acted in the lawful
exercise of jurisdiction.
When the record does not show affirmatively that trial judge
informed the accused of his right to counsel what is the
presumption?
That he was informed that he was informed that he
has the right and the procedure was followed.
What is the general presumption regarding the conduct of
men?
There is a presumption of fairness, honesty, good
faith in the deeds of men.
If you charge a person that he has done something
wrong the burden is for you that he did not act
correctly.
Will the court presume fraud on the part of the person?
No. You have to present proof of fraud.
Will the court presume negligence?
No. Care is presumed.
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
Is there a presumption of honesty?
Yes.
Would these presumption of honesty and fair dealing apply to
transaction of artificial persons, like a corporation?
Yes.
Does the consideration for an agreement have to be stated in
writing?
No. It is presumed that there is sufficient/proper
consideration in every agreement.
Does this apply even when the contract is under the statutes
of fraud, wherein contract are unenforceable unless they are
in writing?
Yes. Consideration is presumed.
An indorsement of a check was made before the check was
overdue and at the place where it was dated. If the time of
the indorsement is important to the defense, what must he
show?
It is incumbent upon the maker to show that it was
made after the maturity of the instrument
What is the basis for the presumption that a writing/letter is
truly dated?
People who write things may be presumed to write
what they want to write. They are presumed to
intend what they put down in writing. If you put a
date then that is your intention.
*Because parties to such writing are always supposed to have
intended something rather than nothing by what they have
said.
rd
Does this presumption apply to 3 persons?
No because they were not the one who wrote it.
What is the basis of the presumption that a letter duly
addressed stamped and mailed was received in the regular
course of the mail?
A post office has the nature of a public office. There
presumption of regularity in its official conduct.
Is the presumption rebuttable?
Yes. By mere denial - “I did not receive it.”
* There is a presumption that mail duly addressed and
deposited in the post office is received in due time by the
addressee. The mere fact that letters having been written and
signed and later placed in a correspondence basket is not
sufficient proof that said letters reached the hands of the
addressees, especially when they deny having received them.
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Does this presumption apply to letters sent by private
couriers?
NO, unless it is licensed by the government.
Is the presumption of the delivery of a letter properly mailed
overcome by mere denial of the receipt of the addressee?
No. The presumption of receipt by addressee of a
letter proved to have been duly mailed with a
requires to return to him if not delivered is well nigh
conclusive and may not be overcome by mere denial
of receipt.
In the presumption of death of a person aboard a vessel lost
during a sea voyage, what does it mean that the vessel was
lost?
The vessel is missing cannot or cannot be located. All
passengers cannot be found they are presumed to
be dead.
This applies when an airplane is missing.
Is the passage of 7 years indispensable to the
findings/presumption that the person is dead?
You can prove by evidence that he died even before
7 years is over.
Under the presumption that things happen under the
ordinary course of business and habits, would the deposit of
a check with the bank give rise to presumption that the
money deposited has been credited to the account of the
payee of the check
Does the presumption of marriage arise if one of the couple is
also living under a scandalous relationship with someone
else?
No.
What is the proof required to overthrow the presumption of
legitimacy of a child?
Proof beyond reasonable doubt that the husband
has no access to the wife. Sexual intercourse was not
possible
Can the issue of legitimacy of the child be attacked
collaterally?
NO. There should be direct action.
What happens if the mother declares a child as illegitimate?
Does it make the child illegitimate?
No. The child’s legitimacy, which is established by
the Family Code at the moment and by the fact of
his birth, should not be affected by the mere
declaration of the mother against its legitimacy.
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The presumption is that a thing once proved to exist continues
as long as is usual with the things of that nature. Who has the
burden of proving otherwise?
On the party who seeks to prove its termination
when such termination is claimed to have occurred
prematurely.
Does the presumption of continuity of things apply to mental
capacity?
Yes. Capacity to act is presumed to attach to every
person who has not been previously declared to be
incapable, and to continue until contrary is proven,
that is, until it is shown that at the moment of
acting, the person in question was actually
incapacitated, insane or out of his mind.
Does the presumption is that a thing once proved to exist
continues as long as is usual with the things of that nature be
contradicted by contrary evidence?
Yes
Can we presume violation of a law?
No. The presumption is that law has been obeyed
Does the presumption of knowledge of the law apply to civil
cases?
Yes. People are presumed to know the law.
Are persons presumed to know private regulations, as in
subdivision regulations passed by the subdivision’s
association?
No. Applies only to officially enacted government
laws or regulations.
What is the presumption in the absence of proof of foreign
law?
PROCESSUAL PRESUMPTION - It is presumed that it
is similar to that of Philippine laws
* foreign laws must be pleaded and proved.
Would the rule on survivorship apply if there are facts that
might prove survivorship?
No. It is intended to be applied only in the absence
of facts or a substitute for facts from which rational
inferences could be drawn.
It does not require that an inference from such
evidence is available, be conclusive in order to
overcome the presumption.
Section 4. No presumption of legitimacy or illegitimacy. — There is no
presumption of legitimacy of a child born after three hundred days following
the dissolution of the marriage or the separation of the spouses. Whoever
alleges the legitimacy or illegitimacy of such child must prove his allegation.
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When is there no presumption of legitimacy or illegitimacy?
When the child is born after 300 days (10 months)
following the dissolution of the marriage or the
separation of the spouses.
The one who alleges the legitimacy of such child
must prove his allegation.
EVID16
Section 1. Examination to be done in open court. — The examination of
witnesses presented in a trial or hearing shall be done in open court, and
under oath or affirmation. Unless the witness is incapacitated to speak, or
the questions calls for a different mode of answer, the answers of the
witness shall be given orally.
How do you examine witnesses?
• In open court and under oath or affirmation
• answers of the witness shall be given orally
• UNLESS the witness is incapacitated to speak OR
• Question calls for a different mode of answer
What if the witness is blind?
Still orally
How are objects presented in evidence?
Procedure in the presentation of things (writings,
photographs, guns, knives, all kinds of tangible things)
• have the thing be marked by the clerk for
identification as an exhibit for the party
• lay the foundation for its introduction as an exhibit
by having it authenticated by the testimony of the
witness
• submit the proposed exhibit to the opposing
attorney for his inspection, and then to the judge,
stating, e.g., “Plaintiff offers this (doc, obj, describing
it), marked, “Plaitiff’s Exhibit 2 for identification, as
Plaintiff’s Exhibit 2. At this point the opponent may
make his objection to its receipt in evidence, and the
judge will make his ruling upon the objection
Example:
You want the witness to identify/authenticate the
knife used in the crime?
Have the witness recall the object. Have
him testify as to the existence of the object.
How did the accused killed the victim?
He stabbed him.
Did you see what he used in stabbing him?
Yes.
What did he use?
He used a knife.
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
To present the object, you have to ask the clerk - We
would like to ask your Honor that this knife be
marked as Exhibit A
If we are able to present you the knife the knife you
saw will you be able to recognize it?
Yes.
We are showing to you this knife already marked as
Exhibit A.
What relation does this have to the knife you
mentioned?
That is the same knife your honor (here he
authenticated whether it is the knife).
You can show it to the other party so that the other
party can inspect it.
Usually documentary or object evidence you readily
offer it because it is part of the testimony of the
witness.
What is the usual way of presenting oral testimony?
Call the witness to the stand
Your Honor I am (Atty. Masilungan)
presenting Mr. Michael Sajor as our 1st
witness (in a rape case).
Require him to take an oath before he say anything.
He should state his name under oath also.
Who will swear him in?
The clerk of court,, it can even be the interpreter
st
The Court personnel will ask 1 the witness to identify himself
____ and other personal circumstances. Usually he will state
his name, age, residence and his occupation (lawyer,
unemployed or whatever).
The clerk will tell you, “Your witness.” Now it is your turn.
Make an offer of the testimony of the witness by stating for
what purpose you are presenting the witness. This should
st
first be done before you could begin your 1 question.
You’re Honor I am prepared in presenting the witness for the
purpose of proving that a vehicular accident took place...and
the person at fault is the driver of the jeepney.
The testimony of the witness is elicited by interrogations.
How should the questions be phrased?
Direct and free from vagueness.
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What will you ask the witness? Do you remember where were
you on May 5, 2006 at 3 in the afternoon? Can the opponent
object to this on the ground that the question is leading?
Although this is leading, this allowed leading.
Preliminary questions like this allowed so that there
will be a place to start the testimony so long as you
only say the place or date but not what happened.
This is an exception to the objectionable leading questions.
Otherwise if the judge sustains such objection and start
where or when he was born this will make the trial very long.
Why is the testimony required to be given in open court?
To enable the court to gauge the credibility of the
witness.
Why is the witness required to be sworn?
To compel him to speak the truth by affecting his
conscience (He will go to hell if he bare false
witness)
That he may be punished for perjury if he wilfully
falsifies
What is the consequence is a witness testifies without having
been sworn?
If there is no objection the defect will be deemed
waived. It will not affect the proceedings it will be
valid.
What is the consequence if there is an objection, but the judge
overruled the same and allowed the witness to testify?
Testimony of the witness will be void. Not
necessarily that the whole proceeding will be set
aside
If it was just forgotten and there was no objection it
will be allowed. If it is willful from the judge this will
affect the judgment of the court.
Section 2. Proceedings to be recorded. — The entire proceedings of a trial or
hearing, including the questions propounded to a witness and his answers
thereto, the statements made by the judge or any of the parties, counsel, or
witnesses with reference to the case, shall be recorded by means of
shorthand or stenotype or by other means of recording found suitable by the
court.
A transcript of the record of the proceedings made by the official
stenographer, stenotypist or recorder and certified as correct by him shall be
deemed prima facie a correct statement of such proceedings.
What are the matters in the proceedings that have to be
recorded?
• Entire proceedings of a trial or hearing
• Questions propounded to a witness and his answers
thereto
• Statements made by the judge or any of the parties,
counsel, or witnesses with reference to the case
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• These should all be recorded in the transcript of
records.
What is the evidentiary value of the transcript?
Deemed prima facie a correct statement of the
proceedings
May the court allow the recording of a testimony by some
other person bring a tape recorder?
As a rule NO. This is because there would be 2
versions of the testimony if other recordings are
made. If such is in conflict with the official
transcription then there will be trouble there.
Section 3. Rights and obligations of a witness. — A witness must answer
questions, although his answer may tend to establish a claim against him.
However, it is the right of a witness:
(1) To be protected from irrelevant, improper, or insulting
questions, and from harsh or insulting demeanor;
(2) Not to be detained longer than the interests of justice require;
(3) Not to be examined except only as to matters pertinent to the
issue;
(4) Not to give an answer which will tend to subject him to a
penalty for an offense unless otherwise provided by law; or
(5) Not to give an answer which will tend to degrade his reputation, unless it
to be the very fact at issue or to a fact from which the fact in issue would be
presumed. But a witness must answer to the fact of his previous final
conviction for an offense.
What is the obligation of the witness?
Him must answer questions, although such may tend
to establish a “civil” claim against him.
If it is a criminal claim can he refuse to answer?
Yes.
What are the rights of a witness?
1. To be protected from
a. irrelevant,
b. improper or insulting questions, and
c. from harsh or insulting demeanor
2. Not to be detained longer than the interest of justice
require
3. To be examined only as to matters pertaining to the
issue
4. Not to give answers which will tend to subject him to
a penalty for an offense unless otherwise provided
by law
5. Not give answer which will tend him to degrade his
reputation,
UNLESS
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a. it be the very fact at issue or
b. to the fact from which the fact in issue
would be presumed,
c. BUT witness must answer to the fact of his
previous final conviction for an offense.
If the lawyer badgers the witness, insult, shouts at or is harsh
to the him, you should object and the court/judge should
protect the witness for this kind of behavior of the lawyer.
The witness should be respected.
Don’t call the witness Mr./Ms. Wintess. Call him/her by
his/her name.
What are the duties of the court with respect to the rights of
the witness?
To protect the witness from questions which go
beyond the bounds of proper cross-examination
merely to harass, annoy or humiliate him.
If the witness is being cornered by the cross-examiner must
the judge protect the witness from being cornered (being led
to damaging testimony)?
No. It is the job of the lawyer to corner the witness,
cause him to make admissions damaging to the
person for whom is testifying.
What is prohibited is insulting/ humiliating the witness, but
not cornering him and exposing him as a liar. This is part of
the right of cross-examination.
In what proceedings will the right against self-incrimination
be invoked?
In any court proceedings – judicial, administrative,
legislative or military, civil or criminal cases
Who has the right against self-incrimination, the witness or
accused?
It is not only the right of the accused but it is a right
of every witness.
Ordinary witness has the right not to say anything if
it will subject him to a criminal liability.
Does this right against self-incrimination cover the rights
against being bodily inspected (i.e. to show his shoulder
whether there is a scar)?
It is not included because this is not testimonial.
*The rule only covers testimonial self-incrimination and the
production by him of incriminating documents and articles
(or even by his lawyer). It does not include the examination of
his body as evidence when it may be material.
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* the Privilege is a bar against compelling “communications”
or “testimony” but the compulsion which makes a suspect or
accused the source of “real or physical evidence” does not
violate it.
Can you object to fingerprinting, photographing, or
measurement?
No
How about compelling the witness to give his blood sample to
get his DNA?
You cannot object because this not testimonial.
Does the right against self-incrimination include the right
against refusal to surrender incriminatory papers or
documents (i.e. falsified documents in your possession)?
Yes. It also includes the right of privacy of one’s
papers.
Can the public prosecutor present or compel one accused to
testify against the other accused provided that he will not
testify on matters concerning himself?
No. Every accused has an absolute right not to testify
at all, even go to the witness stand to state his
name. If he doesn’t want to testify he cannot be
compelled to testify absolutely, such will not
prejudice him.
If the accused testified, such as when he was presented by the
defense counsel, can he now be asked questions that might
incriminate him?
Yes. When the accused comes forward and testifies
on that crime he is open to cross-examination.
How about another crime not that of what he is charged?
Example: There was another a robbery committed a month
ago and he was asked whether he was involved there also,
can he be compelled to testify?
No. He did not waive his right against self-
incrimination with respect to some other crime.
If the accused testifies on a particular crime then he waives
his right against self-incrimination because he voluntarily
testified on the event. If he had been cross-examined his
testimony can be stricken-off the record.
But he cannot be asked to testify respecting another crime
(not the one charged) because that will tend to incriminate
him in a case of which he is not charged. He continues to
enjoy such right.
If a pair of shoes is found in the crime scene, can the accused
be compelled to try them on?
Yes.
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Like in OJ Simpson’s Trial, they said the gloves belong to him.
When he was asked to try them on, his hands could not get
into it. So it resulted to his acquittal.
How about asking the accused to compare his signature with
the signature in a document by asking him to write his
signature?
No. writing is not pure a mechanical act, because it
requires the application of intelligence and
attention. Compelling him to write is equivalent to
compelling him to perform a positive testimonial act.
How about compelling the accused to disclose to those parts
of his person which are not usually covered (i.e. face, hands)?
Allowed.
How about those parts which are usually covered?
Yes, as long as it not oppressive/ in a way that it is
embarrassing. A doctor/nurse may be called to do
the examination and he will testify later on about his
findings.
Example: The lawyer said to the female witness on
the witness stand, “You have a tattoo on your
breast.” Can we look at it?
This is not allowed if done this way.
If this is done only to make fun of the witness, then it is
objectionable on the ground of subjecting the witness into
indignity.
As a rule the accused cannot be compelled to testify, but can
he voluntary testify?
Yes. If he does he can be cross-examined.
Is the right against self-incrimination available only in criminal
cases? Example: A person charged in an administrative case
wherein there is a penalty (payment of fine, or forfeiture of
rights or property) imposed on him, can he be compelled to
testify if he does not want to testify?
Yes. These penalties (payment of fine and forfeiture)
are punishments, not simply payment of a debt.
*The prohibition against compelling a person to take the
stand as a witness against himself APPLIES only IN criminal,
quasi-criminal, and penal proceedings, INCLUDING
proceeding civil in form for forfeiture of property by reason
of commission of an offense, BUT NOT a proceeding in which
the penalty recoverable is a civil or remedial in nature
* Disbarment is a disciplinary measure, not a penalty.
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If the accused does not testify could there be an inference that
he is guilty?
No. An accused has the right to remain silent and no
adverse inference should be drawn from that
silence.
Is the right against self-incrimination self-executing?
No. It must be invoked.
Is it transferrable?
No. The privilege is personal in the sense that only
the person who is at risk of incrimination can invoke
it.
Can the lawyer invoke it? Can the lawyer advise the witness of
his right against self-incrimination? Can he say, “Your Honor
may I advise my client that if he answer such question it might
incriminate him?”
Yes. Every person who appears in court has the right
to be assisted by counsel concerning his rights.
It is not the lawyer who is invoking the right, he is
merely advising him.
If despite such advice the witness still insists, he can
answer. It is up to him if he wants to waive the right,
not up to the lawyer.
Because an ordinary witness will not know if a
question tends to incriminate him.
This is why he has right to counsel.
When will a question “tend” (it does not have to be a question
that will already clearly establish the crime, if answered) that
to incriminate a witness? If a crime has 4 elements, would 1
element already constitute a crime?
No. Usually it has to be all the elements.
Example: Theft. Taking of the property without the consent of
the owner; with intent to gain; without use of force, threat,
violence, or intimidation; resulting to damages. If the witness
is asked: “Did you take the cellphone of your classmate?” Can
you object? Does answering this already make you a criminal?
Yes. Even 1 element of the crime can lead to the
questions concerning other elements.
You are not really invoking it. You are merely advising your
client. It is up to him because the right belongs to the client.
Is it the obligation of the court to warn him that the question
will incriminate him?
No. It is not the court’s duty to do so because of the
other presumption that everybody knows the law. It
is up to his lawyer to advice him as to their rights.
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If the accused voluntary waives the right against self-
incrimination what is the extent of his waiver?
He opens himself to all questions relating to what he
testified on.
He can no longer invoke the right against self-
incrimination regarding the matters he testified on.
BUT if it concerns another crime, he may invoke it.
Does this waiver apply if he testifies for a co-accused after he
has been dismissed from the charge? He is a co-accused
before the he was dropped and he testifies for a co-accused,
does the waiver still apply to him?
Yes. He waives his privilege.
*He waives his privilege against testifying fully when he
agrees to testify against a co-defendant if the charge against
him is dismissed, even though his testimony may show him
guilty of other crimes.
If the witness discloses part of the transaction in which he is
charged can he hold back his testimony with respect to the
other parts of the transaction?
No. There is no partial waiver. Once you open up you
expose yourself to cross-examination.
The right against self-incrimination is available when it is the
prosecutor who is trying to call the witness asking him to
testify but the latter does not want to.
But when he takes the stand and testifies then the prosecutor
can already ask him question.
Can he be compelled by the defense counsel to testify?
No. If he does not want to testify then case will be
decided on the basis of the testimony of the
prosecution only. He is not compelled to defend
himself by testimony. His defense can be pure cross-
examination by his lawyer. He cannot be compelled
to testify.
Can the witness refuse to answer on the ground that the
answer might put him in disgrace?
Yes. It is his right to not to answer a question that
will put him into indignity.
*It is the right of a witness “Not to give an answer which will
tend to degrade his reputation,
UNLESS it be the very fact in issue or to a fact from which the
fact in issue would be presumed. But a witness must answer
to the fact of his previous final conviction for an offense (Sec
3(5) Rule 132).”
Supposing the witness testified that he saw the defendant
wife and defendant paramour in a motel. Then he was asked
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why he was there in that motel. Can the witness refuse to
answer on the ground that such will embarrass him?
He cannot invoke the right. Such is not intended to
put him in disgrace but only to test the credibility of
his testimony.
If he said that he was with a woman, then he was asked to
give the name of said woman. Can he refuse to answer on the
ground that it will incriminate the woman?
It depends on the intention of the cross-examiner.
Such may be part of the cross-examination to
determine if he is telling the truth. The other party
can obtain corroboration if he is really he was really
there or not. If this is the intention the question may
be allowed as part of the right of the cross-examiner
to estop a lying witness, to determine the details of
his presence.
If the witness is asked about a crime that he has committed
but such crime has already prescribed may he still invoke the
right against self-incrimination?
No. The question will no longer tend to incriminate
him because the crime has already prescribed.
*If the risk of criminal liability is removed there is no
privilege. The privilege does not apply when prosecution and
conviction is precluded by passage of the period of
limitations, pardon, prior acquittal, a grant of immunity.
What are the Kinds of Immunity Statutes that protect a
witness of self-incrimination?
Use Immunity – prohibits the use of witness
compelled testimony and its fruits in any manner to
prosecute him
Transactional Immunity – grants immunity to the witness
from prosecution for an offense arising from that transaction
to which his testimony relates
Section 4. Order in the examination of an individual witness. — The order in
which the individual witness may be examined is as follows;
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent.
What is the order in the examination of a witness?
• Direct examination by the proponent (“party” using
him as a witness to prove his case)
• Cross examination by the opponent (party against
whom the witness is presented)
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• Re-direct examination by the proponent
• Re-cross examination by the opponent
Section 5. Direct examination. — Direct examination is the examination-in-
chief of a witness by the party presenting him on the facts relevant to the
issue.
What is Direct Examination? What would be the substance of
Direct Examination?
It “examanition-in-chief” of a witness by a party
presenting him on the facts relevant to the issue.
Asking him Who? What? Where? When? How? –
pertaining to events that the witness is about to
testify on.
The examiner is usually limited to questions calling for specific
responses by witness (typically):Who? What? Where? When?
How? Etc.
Other forms of questioning may be objectionable.
Is a testimony in narrative form allowed?
No because it is too difficult to determine whether
specific portions of the testimony might be
objectionable before uttered.
What is an example of a question that tends to elicit narrative
answer?
“Tell us everything that happened on the evening of
the accident.”
Section 6. Cross-examination; its purpose and extent. — Upon the
termination of the direct examination, the witness may be cross-examined by
the adverse party as to many matters stated in the direct examination, or
connected therewith, with sufficient fullness and freedom to test his
accuracy and truthfulness and freedom from interest or bias, or the reverse,
and to elicit all important facts bearing upon the issue
What is the scope of cross-examination of the witness?
• Matters stated/covered in the direct examination,
OR
• connected on the matters he testified on (this
usually include collateral things)
Example: Witness testified that a mauling incident that took
place in his room. Can he be asked where he was before he
entered the room?
No because this is outside the scope of the direct
examination. This would be irrelevant or matter not
covered by the direct - this can be the objection.
At the time I entered the room I saw X boxed Y and then Y
boxed X. Then they were stopped by a friend. This was his
testimony. They only want to know who started it. If he was
asked where he came from before he entered the room, can
this be objected to on the ground that it is not covered by the
direct examination?
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Yes.
However, If your purpose was to show that he was not there
you can ask him where he came from before he entered the
room. If the lawyer can show that he can connect the
question to the main testimony then it will be allowed.
What discretion or leeway is allowed to the cross-examiner?
Sufficient fullness and freedom to test the witness’
accuracy and truthfulness and freedom from interest
or bias, or the reverse, and to elicit facts bearing
upon the issue
It is not only limited to what is covered by the direct-
examination but what is related to the issue of the
case.
What happens if the witness testifies on the event was partly
cross-examined then he died? Does this affect the
admissibility of his testimony?
According to jurisprudence, it may be admitted to
the extent that he was cross-examined (i.e. he said
that he was through with that part of the testimony,
next time he will go to the other portion of the
testimony). The others on which he was not cross-
examined will be excluded.
The problem is if the lawyers said that he is not through with
his cross-examination and he will cross-examine next time
but he is almost through.
If he is not able to complete cross-examination the testimony
will not be taken into account because he is entitled to full
cross-examination of the witness.
Can cross-examination be waived (i.e. say “No cross.”)?
Yes
Can it be impliedly waived?
Yes if had an opportunity but he did not avail himself
of it or did not continue the cross-examination.
Example: He was absent the next time he was
supposed to continue.
What is the distinction in the scope of the American Rule and
the English Rule?
American Rule – restrict cross-examination to facts
and circumstances which are connected with the
matters that have been stated in the direct
examination of the witness
st
Example: In the 1 case (room). The only questions
that can be asked are those regarding what he
observed while he was in the room.
English rule – where a witness is called to testify to a
particular fact, he becomes a witness for all
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purposes and may be fully cross-examined upon all
matters material/relevant to the issue
What rule do we follow?
English Rule
* However, in criminal cases, the accused may only be cross-
examined on matters covered by direct examination (Sec 1
(d) Rule 115).
What is the test for determining whether the question is
relevant to the issue?
If the question is connected to the issue/s in the
case. Whether it will prove facts that will tend to
resolve the issues in the case.
You can object to questions using this ground provided you
know what is the issue of the case so you can demonstrate to
the judge that it is irrelevant.
You can say, “Your honor the question is irrelevant because
the issue or this case is….so what does have to do with the
issue?”
When is a question leading?
The question itself suggest the answer.
“Did you go to the toilet?”
Leading. This suggest the answer.
Where did you go?
Not leading.
Are leading questions permitted in cross-examination?
What questions are not allowed on cross-examination of a
witness?
Misleading – assumes a fact when it is not yet
established (sec 10 Rule 132)
(* Q cannot be answered w/o making an unintended
admission)
i.e. “Do you still beat your wife?”
Are you married? How many children do you have?
Misleading. Assumes that he has children when it is
not yet established.
It should be, “Do you have children?” If he said yes, “How
many children do you have?”
The objection to this question depends on who is asking the
question.
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If this has been asked by the direct examiner, the objection
the opponent will be on the ground that it has “no basis”.
If it being asked by the cross-examiner, that would be
“misleading” because the question is based on assumption.
Compound – 2 questions in 1 sentence
(* Requires single answer to more than 1 question)
i.e. “Did you see and hear him?”
Argumentative – not a testimony regarding the facts but
inferences or implication that are drawn by the cross-
examiner from the fact stated by the witness. He wants to
make the witness affirm his conclusion.
(* Reflects the examiner’s interpretation of facts)
i.e. “Why were you driving so carelessly?”
“Since you were absent in class you will not learn the less for
that day.”
(He is not testifying on the fact of his absence. You
are drawing a conclusion of your own and asking the
witness to affirm your conclusion)
Assuming facts not in evidence – assumes that the disputed
fact is true although it has not yet been established in the
case
i.e. “After he ran the stop sign, he honked his horn,
didn’t he? (when there is no evidence that the
person referred to ran a stop sign.)
Conclusionary – asks for an opinion or conclusion from the
witness rather than for facts
i.e. “Did your wife understand this also? (opinion as to wife’s
understanding)
Cumulative – Q that has already been asked and answered
Harasing, embarrassing
May the court control the methods and extent of cross-
examination as a matter of right? (i.e. say to stop that already
and go to another point)
Yes when you are unduly prolonging the questioning
and that your questions are not objectively making
any point.
Could the witness be cross-examined on his bias or prejudice?
Yes you can ask questions to bring out bias to the
witness.
Example: “Is he your employer?”
May the court itself call and examine the witness?
Yes.
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Can the court cross-examine also without any limitation?
Courts can ask questions to clarity, but it cannot act
as if he is the opponent.
*He must not assume the role of an advocate or of a
prosecutor.
Section 7. Re-direct examination; its purpose and extent. — After the cross-
examination of the witness has been concluded, he may be re-examined by
the party calling him, to explain or supplement his answers given during the
cross-examination. On re-direct-examination, questions on matters not dealt
with during the cross-examination, may be allowed by the court in its
discretion
What is the purpose and scope of a re-direct examination?
• To explain or supplement his answers given during
the cross-examination.
• Essentially to “rehabilitate” him.
May the lawyer conducting the re-direct examination ask
questions not tackled during the direct examination? Can ask
new questions on new matters?
As a rule No. It is limited only to what is tackled in
the direct examination, otherwise interrogation of
the witness will never end.
UNLESS there is a leave of court (“Additional Direct”)
Section 8. Re-cross-examination. — Upon the conclusion of the re-direct
examination, the adverse party may re-cross-examine the witness on matters
stated in his re-direct examination, and also on such other matters as may be
allowed by the court in its discretion.
What is the scope of re-cross-examination of the witness?
Matters stated in his redirect examination AND
other matters as may be allowed by court.
What is the purpose of re-cross-examination?
To overcome the attempt to rehabilitate the
witness.
Section 9. Recalling witness. — After the examination of a witness by both
sides has been concluded, the witness cannot be recalled without leave of
the court. The court will grant or withhold leave in its discretion, as the
interests of justice may require.
Can a party recall a witness who already testified?
As a rule NO.
UNLESS with leave of court on the ground of interest
of justice.
Example: The prosecution/plaintiff presented their
evidence. Then the accused/defendant presented
their evidence. Is the prosecution/plaintiff allowed to
present rebuttal evidence?
Yes.
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What is the function of rebuttal evidence?
To explain, repel, counteract, or disprove the
evidence presented by the defendant/accused
especially on new matters not met by the previous
testimony of the plaintiff/prosecution’s witess.
Section 10. Leading and misleading questions. — A question which suggests
to the witness the answer which the examining party desires is a leading
question. It is not allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and intelligible
answers from a witness who is ignorant, or a child of tender years,
or is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or
managing agent of a public or private corporation or of a
partnership or association which is an adverse party.
A misleading question is one which assumes as true a fact not yet testified to
by the witness, or contrary to that which he has previously stated. It is not
allowed.
Are leading questions allowed?
As a rule NO
When are leading questions allowed?
• on cross-examination
• on preliminary matters
• when there is difficulty in getting direct and
intelligible answers from a witness who is ignorant,
or a child of tender years, or is feeble mind, or a
deaf-mute
• of an unwilling or hostile witness; or
• of a witness who is an adverse party or an officer,
director, or managing agent of a public or private
corporation or of a partnership or association which
is an adverse party
Examples of leading questions
Can you cross-examine your own witness? Can you ask
leading questions to your own witness?
As a rule NO
What is the exception?
When you call the adverse party as your own
witness you can cross-examine him with leading
questions.
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The new rules provide that you can call the adverse party as
your witness only after prior resort to discovery procedures,
either by taking of dispositions or written interrogatories of
adverse witness. Otherwise you cannot present him as your
witness.
If he is an unwilling or hostile witness (i.e. spouse of the
defendant), but you have to establish first that he is a hostile
witness
Is this a leading question: Mr. Cruz (your client) do you know
the defendant in this case?
In a sense Yes
Is this objectionable?
No because such a question is merely preliminary.
You are just introducing the subject. You are not
asking him to state anything concerning the issues of
the case.
You are not asking whether he know the defendant who
committed the crime subject of the case. This is leading
because you are already touching on issues of the case.
Example: If you testified that, “You left UST and you took a
jeep going to Quiapo Church” and now the lawyer asks you,
“You said that you took a jeep going to Quiapo Church did you
get to Quiapo Church?” Is this leading?
No because you already said that you are going to
Quiapo Church. He merely asked whether you
arrived on Quiapo.
It is leading when you suggest the answer to him.
A question is not leading simply because it is answerable by
yes or no.
It depends on whether the question itself already carried the
weight (way???) of the evidence. But not when it suggests a
portion of what happened for you to be able to fill it up.
The most important consideration is the extent of the
particularity the question itself. When the question already
deals with specifics and particulars, and he leads the witness
to those specifics and particulars.
BUT NOT where they are merely leading to a general subject
matter, i.e., “Are you a lawyer?” This is merely introduce the
subject of the cross-examination or direct examination.
Sometimes to avoid objectionable leading questions the
examiner will make the question w/ alternative answers
(propounded by means of “whether or not”).
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i.e. “Did the accused stab the victim on his back or not?” Here
it does not lead to yes answer, because it is whether or not.
There is a choice. You are not being led to one answer, but to
both. The choice is yours.
Is this leading?
It depends if one option is detailed and the other is
vague (????). The one that is detailed is the one that
is leading. The choices should be neutral (like in this
case).
“Was it raining or not when you arrived?”
This is sufficiently neutral. It does not suggest that it
raining or it is not raining.
“Did do you in fact assault the victim, slap him in the face and
kick him or not?”
This is leading because one question is very detailed
and the other one is very general.
A witness of a robbery was asked, “Where were you in June 5,
2007 at 3 o’ clock in the afternoon?” Did anything unusual
happen to you during this day? Is this leading?
This is admissible leading. This allowed as a
preliminary question to have some place to start
with on the direct examination.
Preliminary questions on preliminary matters are allowed.
When leading questions are asked it makes the judge see that
it is the lawyer who is testifying not the witness. This is why it
is not always good to ask leading questions on the direct
examination.
What is the remedy if the witness you brought turns out to
be friendly to the other side? He gives answers which are
friendly to the other side. Can you cross-examine that
witness?
Yes. The judge can prohibit leading questions when
it turns out that the witness is friendly to the cross-
examiner. He is actually a witness of the other party.
Sometimes it happens that your witness will turn
against you.
*The reason for allowing leading question on cross-
examination is the presumed hostility of the witness which
does not exist when the witness is shown to be friendly to the
cross-examination. Thus, it is generally held that where the
adverse witness is shown to be friendly toward or biased in
favor of the cross-examiner the reason for the rule ceases to
exist and leading questions on cross-examination where the
adverse party himself or his agent has been called as witness
by his opponent, since there is to be little justification for
permitting leading questions to such a witness by counsel.
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Section 11. Impeachment of adverse party's witness. — A witness may be
impeached by the party against whom he was called, by contradictory
evidence, by evidence that his general reputation for truth, honestly, or
integrity is bad, or by evidence that he has made at other times statements
inconsistent with his present, testimony, but not by evidence of particular
wrongful acts, except that it may be shown by the examination of the
witness, or the record of the judgment, that he has been convicted of an
offense. How is the adverse party impeached or discredited?
Under Rule 132 Sec 11, by:
• Contradictory evidence
• General reputation for truth, honesty or integrity
• Previous inconsistent statements
Other modes of impeachment
By:
• Involving him during cross-examination in
contradiction
• Showing the impossibility or improbability of his
testimony
• Proving action/conduct of the witness inconsistent
with is testimony.
Example: Failure to make outcry in Rape
case.
• Showing interest, bias or hostile feeling against the
adverse party
May the witness be impeached by evidence of particular
wrongful acts? “This witness cannot be a good witness
because he is lying witness or he mischievous he has done
certain things?”
No. A witness cannot be impeached by evidence of
particular wrongful acts,
EXCEPT if prior conviction for a wrong doing is
shown
How is a testimony of a witness contradicted?
By offering another testimony different from his.
May a witness be impeached by evidence on collateral
matters?
As a rule NO
What is a collateral matter?
Those strictly not relevant to the issues
How is a witness impeached by evidence that his general
reputation for truth, honesty and integrity is bad? Can you
overthrow his testimony by presenting a witness that one
time he lied?
No. It should be done by showing his common
reputation in a particular class, group or community
(i.e. in the community wherein he lives).
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*They can be impeached by evidence that their general
reputation or character is such that they may lie under oath.
May the witness be impeached by proof of prior conviction?
Yes.
How may prior conviction of an offense be shown?
Through admissions given, by the examination of the
witness, or the record of the judgment
Does pardon prevent the use of conviction to impeach?
No
Can a witness be impeached by showing defect on his
observation, memory (i.e. forgetful) and narration?
Yes
*A common method of impeaching a witness is by showing
that he had no opportunity to observe the facts, which he
had testified to. He can be cross-examined on the accuracy of
his recollection or memory. The defect of the capacity of the
witness to recount the matters testified on may also be
shown.
Can a witness be impeached by evidence of inconsistent
conduct? Example: He said that he goes out and walks the
dog every morning and then later on he said he was not home
until morning when the incident happen.
Yes
Can the party who called the impeached witness rehabilitate
him, i.e., your witness was impeached, was shown to lie by
the other party?
Yes on redirect. You ask him to explain why he said
these and that.
Will the fact that a witness has been impeached mean that
his testimony may be stricken or disregarded? Can you ask the
striking out of the testimony of a lying witness?
No. Everything has to be recorded.
Section 12. Party may not impeach his own witness. — Except with respect to
witnesses referred to in paragraphs (d) and (e) of Section 10, the party
producing a witness is not allowed to impeach his credibility.
A witness may be considered as unwilling or hostile only if so declared by the
court upon adequate showing of his adverse interest, unjustified reluctance
to testify, or his having misled the party into calling him to the witness stand.
The unwilling or hostile witness so declared, or the witness who is an adverse
party, may be impeached by the party presenting him in all respects as if he
had been called by the adverse party, except by evidence of his bad
character. He may also be impeached and cross-examined by the adverse
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party, but such cross-examination must only be on the subject matter of his
examination-in-chief
You present a witness, but while he is testifying he said
something against your client can you cross-examine him and
impeach and show that he lied about that point against your
client?
As a rule NO. This is because of the assumption that
when you present a witness is court you guaranty his
fidelity and such also amount to a representation
that the witness will say the truth. When you
present a witness there is an assumption the you
present him because he is credible and can be
believed.
* A party vouched for the credibility of those called as
witnesses and hence barred from impeaching them.
What if the witness you presented turns out to be a traitor
and gives testimony against you client, can you impeach him?
Yes
What are the requisites before you can impeach your own
witness?
• Witness required by law - When he is not really your
choice but the law makes him your witness. i.e.
witnesses to wills
• Witness is the adverse party
• Witness is hostile/unwilling
• How to show witness is Hostile
• If so declared by the court upon adequate showing
of his -
• Interest
• Unjustified reluctance to testify
• Misleading party to call him as witness
Can the rule against impeaching ones witness apply in a
criminal case?
No it applies only in civil cases.
It can never apply in criminal cases because the
accused may be compelled subpoena witnesses
whom he has not talk with. Only by compulsion of
law, he may not be a witness actually. In such a case
he is not really free to just call any witness. He may
be forced to call some people who may say things
against him. In such case he may impeached such a
witness.
Section 13. How witness impeached by evidence of inconsistent statements.
— Before a witness can be impeached by evidence that he has made at other
times statements inconsistent with his present testimony, the statements
must be related to him, with the circumstances of the times and places and
the persons present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If the statements be in
writing they must be shown to the witness before any question is put to him
concerning them.
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How is a witness impeached by evidence prior inconsistent
statements?
• Show to him made the previous statements
• Ask him if he admits that he made such previous
statement
• If so, ask the witness to explain why he said the prior
inconsistent statement. i.e. “Why did you say the
color of the cat is black but when you testify here
you said the color of the cat is white? What did you
say that?”
If you didn’t ask him to explain you cannot use the
prior inconsistent statement against him. There
might be an explanation for it, i.e. He could have said
that during at that time it was dark so the cat
appeared to be black.
If you did not give him a chance to explain you
cannot say in your memorandum that he lied.
Suppose the prior inconsistent statement is made in the same
case, is it necessary that a foundation be laid and give him
opportunity to explain? Example: He testified 5 minutes ago
that the cat is black, and then after some cross-examination
he said that it is white. Do you need to confront him why he
said this when 5 minutes ago he said it was black?
No need. If the prior inconsistent statement is made
in the same proceeding in the same case you can
just point it out that it is inconsistent.
If it is made in the same case you can just point it out
when you prepare your memorandum.
If it is done outside court or in another case then you
have to confront him and ask him to explain.
What is the remedy if the witness denied that he made prior
inconsistent statement?
You don’t have to ask him to explain. You only need
to present evidence that he made such prior
inconsistent statements – the affidavit that he made,
transcript of the proceedings in another case or the
testimony of a witness who heard him say it.
What is the effect of failure to object to the presentation of
prior inconsistent statements without laying a proper
predicate? Is it admissible in evidence?
Yes. Such objection may be deemed waived.
Would it be sufficient the transcript of a prior testimony of the
witness in another case and ask him if he made the
statement?
No. The must be read to him and ask him to explain.
The prior inconsistent statement must be put in
record otherwise there will be no evidence to review
of the prior inconsistent statement.
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*This does confers no information to the court and in the
event of an objection, the court cannot rule thereon for lack
of knowledge as the statements made therein.
Would it be correct for the lawyer to ask the witness whether
he remembers having made an alleged prior inconsistent
statement? Example: “Do you remember having previously
said that the cat is black?”
No. It assumes a fact that is not yet proved. This is
misleading.
You should ask him, “Did you made that statement?”
In the example you are already saying that he said it
only that he has forgotten.
If the witness has been impeached by evidence of prior
inconsistent statement can his credibility be rehabilitated by
evidence of statements that he made also previously the
correct statement/ statement consistent of what he testified?
Example: You say here when I testified that the cat is white.
Yes on that occasion/in the past I said that the cat is black but
the day before that I said it is white. Can this be a proper
rehabilitation?
No. He made 2 different statements. He
contradicted himself 2x so there is no way of telling
which the time witness was lying.
Under what exceptional circumstances can evidence of prior
“consistent” statements be admissible?
When the cross-examiner can show that the
impeaching inconsistent statements indicate a
recent fabrication on the part of the witness as
suggested by his testimony. This can be shown by
corroboration that the witness had previously made
statements which are consistent with his testimony.
This is known as “Recent contrivance doctrine.” The
impeachment suggest that the witness’s testimony on direct
was recently fabricated
(i.e. induced by counsel), or otherwise colored by some
improper motive, proof of consistent statements made by the
witness before the allege motive to fabricate arose is
admissible to disprove that the direct testimony was so
contrived or motivated.
Witness denies inconsistent statement. Evidence of prior
consistent statements is admissible to bolster the denial
Witness’ memory is attacked. Prior consistent statement
made at or shortly after the event in question is allowed to
prove that the witness’ testimony on direct is more likely
correct that some intervening, inconsistent statement made
by him.
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Where False motives are Shown. Where opposing counsel
imputes to the witness a design to misrepresent from some
motive of interest or relationship, it may be shown, to repel
such imputation, that the witness made a similar statement
before the supposed motive existed or before the motive of
interest prompted him to make a different statement of facts.
EVID17
What is the remedy if your witness during direct examination,
he answers properly but in cross examination it turns out that
he is friendly to the cross examining party? What is the
remedy if your witness was asked by the cross examiner
leading questions and your witness answer it very freely? Can
the judge forbid the cross examiner to ask the witness leading
questions if the witness turns out to be friendly to the cross
examiner?
Yes, the judge has a discretion, if there is a very
strong evidence that the witness is actually a bias
witness and it turns out that he is being a witness in
favor of the cross examiner rather than in favor of
the party presenting him as a witness.
Leading questions may be improper in cross or
recross examination if the witness is biased in favor
of the cross-examiner
Section 11. Impeachment of adverse party's witness. — A witness may be
impeached by the party against whom he was called, by contradictory
evidence, by evidence that his general reputation for truth, honestly, or
integrity is bad, or by evidence that he has made at other times statements
inconsistent with his present, testimony, but not by evidence of particular
wrongful acts, except that it may be shown by the examination of the
witness, or the record of the judgment, that he has been convicted of an
offense.
How do you impeach or discredit the witness of your
opponent?
• By contradictory evidence
• By general reputation for truth, honesty or integrity
is bad
• By previous inconsistent statements
Prior Inconsistent Statements – that the witness said
something earlier that differs from what he says now
Why does prior inconsistent statement discredits a witness?
He cannot be truthful; he is having 2 versions of the
same thing
You can impeach a witness by contradictory evidence.
Example: the witness says that the cat is black and by
presenting a picture that the cat is white
Other modes of impeachment aside from sec. 11
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• By involving him during cross-examination in
contradiction
• By showing the impossibility or improbability of his
testimony
• By proving action or conduct of the witness
inconsistent with his testimony
• By showing bias, interest or hostile feeling against
the adverse party
How do you show that the testimony of the witness is
improbable? What will be the basis of saying that the
testimony of the witness is improbable? To what you compare
a testimony to show that such testimony is improbable?
It is compared to common experience.
Example: a witness saw Php1000.00 bill in the floor
and he testified that he kicked it away, is that
consistent with human experience?
No, because it is not ordinarily done by
persons
Can you impeach a testimony of a witness by showing bias?
Yes. You cannot exclude the testimony of the
witness if he is bias but you can discredit a witness
for being bias
How do you usually imply bias?
• When the witness has hostile feelings against the
other party
• When the witness has a pecuniary interest
• When the witness has a relationship
May a witness be impeach by contradictory evidence side
issues or collateral matters?
As a rule, No. A witness cannot be impeached by
contradictory evidence on collateral matters, unless
said matters are relevant to the issue or tend in
some way to prove any issue of fact under inquiry.
For example: a witness testified that he went to school and
there was a crime that took place inside the classroom and
the witness was there and he also testified that after leaving
the classroom he went out and have coffee and then there is
an evidence that he went to the movies instead of having a
coffee, may a witness be impeach by contradictory evidence
not on what he saw in the classroom but ion what he did
afterwards?
As a rule no, because what he did afterwards is
normal unless it is relevant to the core issue
When will evidence on collateral matters be allowed?
Even if it is collateral, if it is related to the core issue
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Another example: Fraternity issue: the witness testified that
he was only in UST because he only buy celfone load, can he
be impeached by evidence that no one selling load in that
place where he said that he was supposed to buy a celfone
load?
Yes, because the issue in that case is whether
somebody is selling load in that place, it is a
collateral matter but admissible because his reason
to be there does not exist, in a way it is relevant to
the main issue
How is a witness impeached by evidence that his general
reputation for truth, honesty or integrity is bad?
They can be impeached by evidence that their
character is such that they may lie under oath
How about by a proof that at one time or other that he told a
lie?
Yes, because it is not an evidence of a particular lie
but evidence of general reputation
May an evidence that the witness is a known gambler or the
witness has a reputation in gambling be admissible as
evidence to discredit him? Or evidence of womanizing or
drinking?
No, because such evidence is of bad morals, it
should be evidence of integrity or for telling the
truth. Questions on cross examination, tending to
show the general immorality of the witness or
specific acts of immorality should never be allowed
in any case for the purpose of discrediting the
witness
May the witness be impeached by proof of prior conviction of
an offense?
Evidence of a specific wrong doing is not admissible
as evidence except when it is based on a prior
conviction.
Supposing that the accused is found guilty of a crime but the
case is still on appeal, will that make the testimony of prior
conviction evidence to discredit a witness if the case is still on
appeal?
Yes, because the rule only speaks of “prior
conviction” not final conviction. The conviction is
presumed validly exercised
How may a prior conviction for an offense be shown?
• By presenting a copy of a judgment
• By admission of such witness
Does pardon prevent the use of conviction to impeach?
No, a pardon does not prevent the use of conviction
to impeach
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May a witness be impeached by showing defect on his
observation?
Yes. Example: near sighted or deaf
May a witness be impeached by showing defect on his
memory?
Yes. Example: by age, usually a witness who is old
cannot remember things properly
May a witness be impeached by showing his inability to
narrate the past?
Yes.
May a witness be impeached by evidence of inconsistent
conduct?
Yes. It is proper to show that on a previous occasion,
the witness conducted himself in a way inconsistent
with his present testimony
Example: the witness testified that he saw crime took place
because he arrived at his place of work not later than 10am,
but there is evidence (time record) that he is oftenly late
May an impeached witness be rehabilitated?
Yes
How do you rehabilitate an impeached witness?
By showing the opposite of the basis for his
impeachment
Will the impeachment of a witness results in striking off his
testimony?
No, his testimony is discredited but not excluded
unless it is incompetent.
The fact that a witness has been impeached does not
mean that her testimony will be stricken or
disregard. The trial judge may properly instruct the
trier of fact to consider the witnesses’ testimony
with caution. But the latter may still choose to
believe the witness despite the impeachment
evidence
Section 12. Party may not impeach his own witness. — Except with respect to
witnesses referred to in paragraphs (d) and (e) of Section 10, the party
producing a witness is not allowed to impeach his credibility.
A witness may be considered as unwilling or hostile only if so declared by the
court upon adequate showing of his adverse interest, unjustified reluctance
to testify, or his having misled the party into calling him to the witness stand.
The unwilling or hostile witness so declared, or the witness who is an adverse
party, may be impeached by the party presenting him in all respects as if he
had been called by the adverse party, except by evidence of his bad
character. He may also be impeached and cross-examined by the adverse
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party, but such cross-examination must only be on the subject matter of his
examination-in-chief.
If you present a witness as your own witness, may you
impeach your own witness?
As a rule, No
Except when?
• Witness required by law
• Witness is adverse party
• Witness hostile on stand surprise testimony
Witness is adverse party, adverse to whom?
Example: if you for the defendant, you can call the
plaintiff as your witness. When you call the plaintiff
as your witness, you can cross examine the plaintiff
When will your witness be considered unwilling or hostile
witness?
When there is an adequate proof of adverse
interest, unjustified reluctance to testify, or his
having misled the party into calling him to the
witness stand
Is there a need for court declaration that the witness is
unwilling or hostile?
Yes, there is a need. A witness may be considered as
unwilling or hostile only if so declared by the court
How do you impeach your hostile witness?
• Contradict him by other evidence
• In the discretion of the court, in order to show that
the witness has misled him into calling him to the
stand, show that the he had made at other times
statements inconsistent with his present testimony.
How may an adverse witness or one declared unwilling or
hostile witness be impeached?
All means that can be used to impeach a witness
except evidence of his bad character
Can he be impeached and cross-examine by the adverse
party?
Yes
Example:
You are for the defendant. You present an adverse
witness. You call the plaintiff as you witness. Then
you conducted a direct examination, can you ask
leading question to the adverse witness?
Yes
You are done with your direct examination, can the
lawyer of the plaintiff (the adverse witness) cross-
examine his own client?
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Yes, but such cross-examination is limited
to the examination-in-chief by the lawyer
who present him as an adverse witness
What is the reason why a party who present a witness cannot
impeach his own witness?
By calling a witness, the party certifies his credibility
or truthful
What are the instances that party is allowed to impeach a
witness whom he calls apart from the given?
Witness required by law, when you are forced by law
to present a witness
What are those instances when the law requests you to
present certain witnesses?
Witnesses to notarial will
Can the rule against impeaching ones witness apply in
criminal cases? Why the accused is exempt from this rule?
No, the principle applies in civil cases only; the
privilege against self-incrimination prevents the
State from calling the defendant as a witness in
criminal cases
Suppose the witness is asked in the witness stand and instead
of saying “he is 6’00 feet tall” but he said “I’m not sure but I
think he is 6’00 feet tall”, will that testimony be admitted?
Yes, it will not affect the his credibility but only the
weight of his testimony
Section 13. How witness impeached by evidence of inconsistent statements.
— Before a witness can be impeached by evidence that he has made at other
times statements inconsistent with his present testimony, the statements
must be related to him, with the circumstances of the times and places and
the persons present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If the statements be in
writing they must be shown to the witness before any question is put to him
concerning them.
How is a witness impeached by evidence of inconsistent
statement?
A witness may be impeached by evidence that he
has made at different times statements inconsistent
with his present testimony
A prior statement of a witness, however, in order to be
capable of being proved for purposes of impeachment:
• Must be materially inconsistent with his testimony
• The inconsistent statement must have a reasonable
tendency to discredit the direct testimony on a
material matter
• To impeach by extrinsic proof of prior inconsistent
statements
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
It is also called “laying the Predicate” – first he is confronted
with his prior testimony then ask to explain the inconsistent
testimony
Suppose the prior inconsistent statement is made in the same
case, for example: the witness testified in the direct
examination he said one thing then on cross examination he
said another thing which is inconsistent with the testimony in
the direct examination, does he need to be confronted about
his testimony in the direct examination to impeach him?
No, the rule applies to out or court statements. The
impeachment of the witness through his
contradictory statements made out-of-court
requires the “laying if the predicate”. If the
statements were made in court, the same can be
used against him without the need of “laying of the
predicate”
Does the rule that the attention of the witness be called to the
time, place or circumstances, apply where the impeaching
evidence is in writing?
There is no need, the rule that the attention of the
witness be called to the time, place or circumstances
does not apply where the impeaching evidence is in
writing. In such a case, the writing must be shown to
the witness so that he may read it or it may be read
to him.
What is the reason for laying of the predicate?
To explain why he made a different testimony from
his previous testimony
Supposing without confronting him after he testified, the
opposite party presents evidence of his prior inconsistent
statement; will that evidence be admitted if he is not
confronted with?
No, there must be confrontation
Supposing the party against whom the party who presented
the witness did not object to the presentation of prior
inconsistent statement?
The inconsistent statement will be admitted
But what weight can it be given to such evidence of prior
inconsistent statement if the witness is not required to
explain?
That will affect the effort to impeach the testimony,
because the witness may have an explanation but he
was not given an opportunity to explain which the
rule ordinarily requires
What is the remedy if the witness denies that he made
statements? Example: you confront the witness with the prior
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inconsistent statement “did u make this statement…” and the
witness replied “I did not”
The need to explain to explain is no longer required,
u can just present he opposite testimony, a
testimony that says that he made a prior
inconsistent statement
If the witness denies making the prior statement or
says that he does not remember making it, the
adverse party should call in rebuttal a witness to
prove that such statement has in fact been made
Would it be sufficient if the witness made a testimony in
another case to conform him with the transcript of the
stenographic notes? Would it be sufficient to just present the
transcript of his prior testimony and ask him if he made that
statement?
No, the statement must be read or repeat to him
what exactly what he said in another case. It is
required to read the record of the another case
exactly what it is
Example: “do you remember having said this that
the cat was black on this date, time and place?” Is
the statement objectionable?
Yes, because it is misleading. It is misleading
because you assume that he made
statement, he is only ask if he remembers
If the witness is impeached by evidence of his prior
inconsistent statement, can his credibility be rebuild by
evidence of prior consistent statement?
As a rule, No
Under what exceptional circumstances evidence of prior
consistent statement be admissible?
Where the prior statement was a recent fabrication,
whereby the witness is always consistent with his
statement and such evidence of prior inconsistent
statement is fake evidence
Section 14. Evidence of good character of witness. — Evidence of the good
character of a witness is not admissible until such character has been
impeached.
Is evidence of a good character of the witness admissible as
evidence?
As a general rule, no
What is the exception?
Only when the character of such witness is
impeached; unless he is showed to be of bad
character. The evidence of good character can only
be a rebuttal of evidence of bad character
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Is it necessary that the attack of the character of the witness
be successful before presenting evidence of good character?
No, what is only needed is when the reputation is
challenged.
If the witness has been convicted of a crime, can he be
rehabilitated as a witness? By what evidence?
Yes , by evidence that he has changed already,
reformed and leads an honest life after his
conviction.
Section 15. Exclusion and separation of witnesses. — On any trial or hearing,
the judge may exclude from the court any witness not at the time under
examination, so that he may not hear the testimony of other witnesses. The
judge may also cause witnesses to be kept separate and to be prevented
from conversing with one another until all shall have been examined.
When may the judge exclude a witness from the court room?
As a rule a potential witness may be excluded
While one witness is testifying why does the other witness is
excluded?
Because the witnesses may correct their testimonies
Which witnesses are not covered by this rule?
• Parties to litigation – because they have the interest
in hearing the testimony for or against them
• Officers and complaining witnesses
• Expert witness
Can an accused in a criminal case be excluded?
No, because he has an absolute right to be present
What is the effect of the failure of the witness to obey the
exclusion order?
• The judge may not allow him to testify
• He may be allowed to testify but he can be held
liable for contempt because orders exclusion
Section 16. When witness may refer to memorandum. — A witness may be
allowed to refresh his memory respecting a fact, by anything written or
recorded by himself or under his direction at the time when the fact
occurred, or immediately thereafter, or at any other time when the fact was
fresh in his memory and knew that the same was correctly written or
recorded; but in such case the writing or record must be produced and may
be inspected by the adverse party, who may, if he chooses, cross examine
the witness upon it, and may read it in evidence. So, also, a witness may
testify from such writing or record, though he retain no recollection of the
particular facts, if he is able to swear that the writing or record correctly
stated the transaction when made; but such evidence must be received with
caution.
As a rule can a witness refer to a memorandum?
He cannot, the witness should testify from his
memory or recollection
99
When may a witness refer to memorandum?
To refresh his memory
What can qualify as a memorandum that the witness can use
to refresh his memory?
Anything that the witness previously wrote
What kind of writings are these?
Those made:
• At the time when the fact occurred
• Immediately thereafter
• At any other time when the fact was fresh in his
memory and he knew that the same was correctly
written or recorded
In such a case, if the witness is allowed to look at his
memorandum what is required before he can proceed with his
testimony?
The adverse party may examine the memorandum
Can a witness testify on such memorandum although he
practically does not recall the fact that the his memorandum
reflects?
Yes, even if he could practically recall what
happened even his memorandum, he can still testify
How about the memorandum that the lawyer prepared, can
he use that to refresh his memory?
No
Can the memorandum itself be admitted as evidence?
• If it is present recollection it cannot be admitted as
evidence
• If the testimony is purely based on the
memorandum, the memorandum can be presented
as evidence
Section 17. When part of transaction, writing or record given in evidence, the
remainder, the remainder admissible. — When part of an act, declaration,
conversation, writing or record is given in evidence by one party, the whole
of the same subject may be inquired into by the other, and when a detached
act, declaration, conversation, writing or record is given in evidence, any
other act, declaration, conversation, writing or record necessary to its
understanding may also be given in evidence.
What is the rule when part of transaction, writing or record
given in evidence?
Section 17
What is the reason for the rule?
To put in context an item in a writing that will be
needed to have the whole other related items
brought out for better understanding
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
Does this rule only apply to matters that are part of the same
event or transaction? Or it can be related to__ ?
It applies to the event or the transaction itself and
also to related events or transaction
Does this rule apply to confessions?
Yes, a confession must be considered in its entirety
including inculpatory or exculpatory statement.
Does this rule apply in quoting one page of the book and the
rest is 600 pages? Do u have to photocopy all the 600 pages,
or u can present only a portion of a book if u quote one part of
it?
No, only the portion of the book that are related to
the one that is really important
Section 18. Right to respect writing shown to witness. — Whenever a writing
is shown to a witness, it may be inspected by the adverse party.
What is the right of the adverse party with respect to writing
being showed by the witness?
The adverse party has the right to inspect the writing
during the examination
While the lawyer for the plaintiff is showing the plaintiff a
document, can the lawyer for the defendant demand that he
be showed the document before he proceeds?
Yes, he can examine it even if it is not yet going to
cross-examine
Section 19. Classes of Documents. — For the purpose of their presentation
evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public
officers, whether of the Philippines, or of a foreign country;
(b) Documents acknowledge before a notary public except last
wills and testaments; and
(c) Public records, kept in the Philippines, of private documents
required by law to the entered therein.
All other writings are private.
How are documents classified for the purpose of presenting
them in evidence?
Either public or private documents
What are public documents?
(b) The written official acts, or records of the
official acts of the sovereign authority,
official bodies and tribunals, and public
100
officers, whether of the Philippines, or of a
foreign country;
(c) Documents acknowledge before a notary
public except last wills and testaments; and
(d) Public records, kept in the Philippines, of
private documents required by law to the
entered therein
Section 20. Proof of private document. — Before any private document
offered as authentic is received in evidence, its due execution and
authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or
handwriting of the maker.
Any other private document need only be identified as that which it is
claimed to be.
What must be proved before any private document is received
in evidence?
Its due execution and authenticity
How do u prove due execution and authenticity?
(b) By anyone who saw the document executed or
written; or
(c) By evidence of the genuineness of the signature or
handwriting of the maker.
If the document cannot be proven by either of the 2, can u still
present private documents?
U can still present it, there are still other ways of
proving its authenticity
For example: a love letter; how will u authenticate a
love letter written by A to B?
By handwriting if B is the one in the witness
stand
By testimony of A authenticating such
document written by him
For example: X testified “I saw A wrote that love
letter to B”
By testimony of another witness
Suppose u received a letter from the Bank informing u that u
have not paid your debt, can u present this as evidence even u
are not familiar with the signature of the creditor and u did
not see him that he wrote that letter for u?
Yes
How do u prove its due execution and authenticity?
Any other private document will only be identified
that which is claimed to be, if u received the
 For the exclusive use of Section 3-A S.Y. 09-10. EVIDENCE reviewer by MARX and MON.
document in the mail, then u have authenticate it as
the document u received in the mail. Not necessarily
that it was written by the person, but the
authentication is the fact that this is the document
that u received in due course of mail. By showing
that the document is what u think it to be
Not all document need to prove by witness or familiarity of
the handwriting, u can prove the document and claim it to be
what it is, is a sufficient authentication.
Authentication means the writing is what it is claim to be
What is the reason for authenticating a document before they
are admitted in evidence?
To prevent the production of faulty documents
May authentication of a document be waived?
Yes, if there is no objection it may be waived
How can the authenticity of a letter be shown other than by
identification of the signature, can a letter be shown that it is
authentic other than by identification of signature or by a
person who is present? Can there be an internal
authentication? Can the letter authenticate itself?
A writing may be also be authenticated by showing
that it contains information which is unlikely to have
been known to anyone other than the person who is
claimed to have written it, or that it is written in a
manner unique to that person
How are reply letters be authenticated?
• A person could not make a reply if he did not
received a letter (connecting link)
• If it discloses something that contains in the prior
letter
Does the mere fact that the letter is received thru mail in itself
prove that it comes from its supposed sender?
It does not
How is a computer records authenticated?
If:
• The proponent uses a computer
• The reliability of a computer
• The proponent has developed a procedure for
inserting data into the computer
• The procedure has built in safeguards to insure
accuracy and identify errors
• The proponent keeps the computer in a good
state of repair
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• The witness had the computer readout certain
data
• The witness used the proper procedure to
obtain the readout
• The computer was in working order at the time
the proponent obtained the readout
How do u present data from the computer?
By printouts
How do prove the authenticity of the printout?
U must first prove that the computer contains the
memory that is desired, a testimony that a data that
is required is preserve in this particular computer
and the document presented is a print out from the
memory of that computer
Section 21. When evidence of authenticity of private document not
necessary. — Where a private document is more than thirty years old, is
produced from the custody in which it would naturally be found if genuine,
and is unblemished by any alterations or circumstances of suspicion, no
other evidence of its authenticity need be given.
Requisites:
• The private document is more than 30 years old
• Is produced from a custody in which it would
naturally be found if genuine
• Is unblemished by any alterations or circumstances
of suspicion, no other evidence of its authenticity
need be given
Section 22. How genuineness of handwriting proved. — The handwriting of a
person may be proved by any witness who believes it to be the handwriting
of such person because he has seen the person write, or has seen writing
purporting to be his upon which the witness has acted or been charged, and
has thus acquired knowledge of the handwriting of such person. Evidence
respecting the handwriting may also be given by a comparison, made by the
witness or the court, with writings admitted or treated as genuine by the
party against whom the evidence is offered, or proved to be genuine to the
satisfaction of the judge.
How is genuineness of a handwriting proved?
• The testimony of the purported writer
• The testimony of a witness who had seen the writer
sign his name or actually make the writing
• Nonexpert Opinion
• Expert Opinion
In what way does he acquired knowledge of the handwriting?
He acted on that handwriting or charge with
Is it sufficient to say for an expert that “the specimen
signature shown is the same as the signature in question”?
No
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What is it that makes the testimony of an expert acceptable? or legation, consul general, consul, vice consul, or consular agent or by any
officer in the foreign service of the Philippines stationed in the foreign
He should show the features of the specimen and
country in which the record is kept, and authenticated by the seal of his
the question document that shows the similarity and office.
differences. The strokes etc.. it is not the form alone
nor anyone feature but rather a combination of all How is a record of a public document prove?
the qualities that identify. In the case of a domestic record
• An official publication
May expert use a standard of writing made in the trial? • A copy thereof attested by the officer
No, because the ___ must be written not as to __ or having the custody of the record, or his
__ but as spontaneous, voluntary and conscious deputy with a certificate that such officer
writing. The handwriting must be made at about the has the custody
same time the questioned documents are made.
Section 23. Public documents as evidence. — Documents consisting of entries
in public records made in the performance of a duty by a public officer are
In the case of a foreign record
prima facie evidence of the facts therein stated. All other public documents • An official publication
are evidence, even against a third person, of the fact which gave rise to their • a copy thereof attested by the officer
execution and of the date of the latter.
having the custody of the record, or his
deputy with the certificate made by a
What is the evidenciary value of public documents? secretary of the embassy or legation, consul
Public documents are prima facie evidence of the general, consul, vice consul, or consular
truth agent or by any officer in the foreign service
of the Philippines stationed in the foreign
Why are public documents are prima facie evidence of truth? country in which the record is kept, and
Because this is similar with the presumption of authenticated by the seal of his office.
regularity of performance of public official duty
Section 25. What attestation of copy must state. — Whenever a copy of a
What are examples of a public documents? document or record is attested for the purpose of evidence, the attestation
Birth certificates must state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The attestation must be under the
official seal of the attesting officer, if there be any, or if he be the clerk of a
The truth of what is stated in the public documents is court having a seal, under the seal of such court.
presumably true. And the burden of saying that it is false lies
on the person who challenge it What must the attestation of a copy of a document state?
the attestation must state, in substance, that the
Does all public documents proof of what it states? copy is a correct copy of the original, or a specific
No, proof of the fact of its execution. Public part thereof, as the case may be
rd
documents are evidence, even against a 3 person
of the fact which gave rise to their execution and of Section 26. Irremovability of public record. — Any public record, an official
the date of the latter. copy of which is admissible in evidence, must not be removed from the office
in which it is kept, except upon order of a court where the inspection of the
record is essential to the just determination of a pending case.
Does the rule of authentication apply to public documents?
No, u only have to prove that such document is a May a public record be removed from office?
public document As a rule, No
What are the reason for the rule? Why not?
• Necessity – because of the practical impossibility of To preserve public records; there would be a risk of
requiring the official attendance as a witness to loss
testify
• Trustworthiness – because of the sense of official What is the exception?
duty in the penalty attached to a breach of the duty When the court requires that the original be
Section 24. Proof of official record. — The record of public documents
presented for examination or inspection
referred to in paragraph (a) of Section 19, when admissible for any purpose,
may be evidenced by an official publication thereof or by a copy attested by Section 27. Public record of a private document. — An authorized public
the officer having the legal custody of the record, or by his deputy, and record of a private document may be proved by the original record, or by a
accompanied, if the record is not kept in the Philippines, with a certificate copy thereof, attested by the legal custodian of the record, with an
that such officer has the custody. If the office in which the record is kept is in appropriate certificate that such officer has the custody.
foreign country, the certificate may be made by a secretary of the embassy
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How is an authorized public record of a private document be
proved?
It may be proved by the original record, or by a copy
thereof, attested by the legal custodian of the
record, with an appropriate certificate that such
officer has the custody
Is it the private writing that is recorded and regarded as a
public document?
No, the private document remains to be a private
document, it is the public recording is the public
document
For example: a letter address to the city mayor complaining
about something and it is filed to the office of mayor, can
there be a certification that you wrote a letter? Is that letter
already part of the public record?
Yes, the private document remains to be a private
document but it is made part of the public record, it
is received by the mayor in his official capacity. It is a
recording of a private writing
The fact that it is received is considered as the public writing
Is the fact contains in that letter a proof of what it states?
No, because it is a private letter
Section 28. Proof of lack of record. — A written statement signed by an
officer having the custody of an official record or by his deputy that after
diligent search no record or entry of a specified tenor is found to exist in the
records of his office, accompanied by a certificate as above provided, is
admissible as evidence that the records of his office contain no such record
or entry.
How is lack of record proved?
A written statement signed by an officer having the
custody of an official record or by his deputy that
after diligent search no record or entry of a specified
tenor is found to exist in the records of his office,
accompanied by a certificate as above provided
Section 29. How judicial record impeached. — Any judicial record may be
impeached by evidence of: (a) want of jurisdiction in the court or judicial
officer, (b) collusion between the parties, or (c) fraud in the party offering the
record, in respect to the proceedings.
How is judicial record impeached?
Any judicial record may be impeached by evidence
of:
(a) want of jurisdiction in the court or judicial
officer,
(b) collusion between the parties, or
(c) fraud in the party offering the record, in
respect to the proceedings.
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Section 30. Proof of notarial documents. — Every instrument duly
acknowledged or proved and certified as provided by law, may be presented
in evidence without further proof, the certificate of acknowledgment being
prima facie evidence of the execution of the instrument or document
involved.
What is the evidenciary value of notarial documents?
Prima facie evidence of the execution of the
instrument or document involved except affidavit
Section 31. Alteration in document, how to explain. — The party producing a
document as genuine which has been altered and appears to have been
altered after its execution, in a part material to the question in dispute, must
account for the alteration. He may show that the alteration was made by
another, without his concurrence, or was made with the consent of the
parties affected by it, or was otherwise properly or innocent made, or that
the alteration did not change the meaning or language of the instrument. If
he fails to do that, the document shall not be admissible in evidence.
How will a party offering a document as evidence explain the
alterations made in the document?
He must account for the alteration. He may show
that the alteration was made by another, without his
concurrence, or was made with the consent of the
parties affected by it, or was otherwise properly or
innocent made, or that the alteration did not change
the meaning or language of the instrument.
When will a party offering a document as evidence explain
the alterations?
During the presentation in the trial; when it is being
testified on not during the formal offer
Section 32. Seal. — There shall be no difference between sealed and
unsealed private documents insofar as their admissibility as evidence is
concerned.
May a documentary stamp tax from a document is not made,
can the document be presented in court as evidence?
No, under the CIR rule, if the document is supposed
to have a documentary stamp tax on the document,
it cannot be presented in court until u paid the tax
Supposing the u pay the documentary stamp tax 2 years after,
can u still present the document in court?
Yes.
Any document which is subject to the payment of a
documentary stamp tax cannot be admitted as evidence
unless the necessary documentary stamp tax has been affixed
thereto.
Payment of documentary stamp tax does not make the
document authentic but u cannot present it as evidence until
u pay the tax
Section 33. Documentary evidence in an unofficial language. — Documents
written in an unofficial language shall not be admitted as evidence, unless
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accompanied with a translation into English or Filipino. To avoid interruption Ask a question that will bring about the fact that the man
of proceedings, parties or their attorneys are directed to have such
communicated to her; what is the communication; then bring
translation prepared before trial.
out the letter. Otherwise it will be leading.
What is required for admissibility of documentary evidence
written in an unofficial language? Atty. Aguirre: Ms. Abad do you know Mr. B?
It must be accompanied with a translation into Ms. Abad: Yes I know him.
English or Filipino
Atty. Aguirre: Ms. Abad how did you meet Mr. B?
Can a private document be admitted without proof of the Ms. Abad: We met at Luneta
authenticity of the writer’s signature?
As a rule, No (assuming that you have established the fact that they met
before, they have become friends)
EVID18
Atty. Aguirre: Did this friendship develop into anything else?
Section 34. Offer of evidence. — The court shall consider no evidence which (Not leading because the question does not include the
has not been formally offered. The purpose for which the evidence is offered answer)
must be specified. Ms. Abad: We became sweethearts.

What is required for admission of properly authenticated Atty. Aguirre: Ms. Abad have you had any communication in
documents? any form with Mr. B?
There must be a formal offer (not present). Ms. Abad: Yes

What does “formally offered” mean? Atty. Aguirre: What form of communication have you made?
It must not be implied. It must be clearly offered Ms. Abad: Texting, we talk to each other and he wrote me
either orally or in writing and must be put in record. letters.

How do you make an offer of a document or an object (i.e. a Atty. Aguirre: You said that he wrote you letters, how many
deed of sale)? letters did he write you?
1. By describing it’s marking and describing what it is Ms. Abad: He wrote me 3 letters.
for the record. This is done so that those would Atty. Aguirre: Do you still have those letters with you?
examine the record will know that you made a Ms. Abad: I lost 2 of them, but I still have 1 letter.
formal offer.
Example: “I would like to formally offer Exhibit A, A Atty. Aguirre: If I show to you that letter will you be able to
Deed of Sale dated June 5, 2009 executed recognize it?
between...for a dealing on a parcel of land Ms. Abad: Yes.
2. State the purpose for which it is offered.
Example: “...to show that A sold the property to B.” Atty. Aguirre: What relation does this letter have, if any, to
the letter that you’ve mentioned?
Situation: Ms Abad bore a child and she is asking for support Ms. Abad: This is the letter.
from B. B denies that he does not have any relation with her.
You want to show that they had a relation and a child was Atty. Aguirre: I would like to ask that this letter be marked as
conceived from that relation. Exhibit A for the plaintiff.

If you are going to introduce a documentary evidence, i.e. a Have you authenticated the document already?
love letter written by B to Ms. Abad, a given on a certain day. Not yet. Since this a private document you have to
You have presented the receiver of the letter (now seated on make him identify the signature and the
the witness stand) and you are going make a formal offer of handwriting.
the letter how are you going to do it? How are you going to
the ff: Atty. Aguirre: There is a signature at the end of this letter.
• Make the witness authenticate it Whose signature is it?
• Make and offer Ms. Abad: That is the signature of Mr. B.

Atty. Aguirre: How do you know that it is the signature of Mr.

B?

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Ms. Abad: I am familiar with his signature. (Now you have
authenticated the letter.)
Later on if you want to ask some details about the letter you
can do so (not about the contents the contents because the
best evidence is the letter).
i.e. The letter mentions here that he gave you a ring
(now you can ask about the ring); The letter says
here that you had a good time, what was that? (You
can now make such questions if you want)
Is the letter already formally offered by the time you have
identified and marked it?
Not yet.
Section 35. When to make offer. — As regards the testimony of a witness,
the offer must be made at the time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a
party's testimonial evidence. Such offer shall be done orally unless allowed
by the court to be done in writing.
When do you make a formal offer, when the witness is
testifying?
No.
When do you do it?
When all of your witnesses have testified, shortly
before you rest your case
As a rule this is made in writing, but sometimes you
can do it verbally.
Atty. Aguirre: Your Honor I would like to make a formal offer
of the following exhibit. Exhibit A, a lover letter written by
Mr. B to Ms. Abad; dated...for the purpose of showing that
they had an intimate relationship; Exhibit B...
After you have made your formal offer (from A – Z), what
would follow?
Now the other Party will make an objection: “I object
to the admission of Exhibit A on this ground (i.e.
irrelevant); Exhibit B...Exhibit Z...” So all the
objections.
After all the objections are made the judge shall make his
ruling: Exhibit A B admitted. Exhibit C is not admitted...”
How about the Oral Testimony. Do you have to make an offer
of oral Testimony?
Yes. Offer must be made at the time the witness is
called to testify.
Actually you call the witness. He takes the stand. He
is sworn first.
The witness is usually asked to give his name and he is put
under oath to tell the truth and nothing but the truth because
105
he might give a different name. This is to make sure the he
will be liable for perjury.
After he has taken his oath, he is asked of then to give his
personal circumstances – usually name address and
occupation. How asks the witness these questions?
The bailiff or the clerk of court, the interpreter sometimes,
the officer in charge in court.
It is the court who ask the witness these questions.
After the witness is asked with these questions, the judge will
say, “Your witness.”
You will then stand and say, “May I proceed your honor?” The
judge will then say, “Proceed.”
So at this point of time you make your offer of the witness.
You are offering the testimony of this witness for the purpose
of showing/proving (state the object and the purpose of the
testimony of the witness). Use the offer to apprise the judge
of the value of the testimony of the witness.
Usually what other lawyers only say is, “...to prove the
allegations in the complaint.”
It should be: “The issues of this case is whether or not...and
the testimony of the witness, Your Honor, is going to show...”
So the judge will now what is the thrust or the value of the
testimony of the witness.
So state the issue and what the value of the issue of the
testimony to the case.
Suppose the lawyer fails to make a formal offer of the
testimony of the witness and starts asking him already
questions. Then he terminates his direct examination without
making any formal offer. Is this fatal to his case?
No as long as there is no objection made.
There used to be no formal offer. Under the old rule
every testimony, every answer given is being
formally offered. This why one party is able to object
to the question. This is the American/British Rule.
Where the offer of documentary evidence is for a general
purpose but it is admissible only for 1 purpose but
inadmissible for another purpose should the court admit the
evidence?
No. The offer must be for a specific purpose.
It can be general if it is not objectionable for any
other reason. If it is objectionable for one reason
then the evidence should be rejected.
When are documentary and object evidence offered?
After the presentation of a party’s testimonial
evidence.
In what form should the formal offer be made?
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Done orally unless allowed by court to be done in
writing
Section 36. Objection. — Objection to evidence offered orally must be made
immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of
a witness shall be made as soon as the grounds therefor shall become
reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after
notice of the unless a different period is allowed by the court.
In any case, the grounds for the objections must be specified.
When will the adverse party object to the testimonial
evidence presented?
Evidence offered orally - Immediately after the offer
is made.
What if it offer of evidence is in writing?
3 days after receipt of notice of the offer
UNLESS a different period is allowed.
How about questions propounded in the course of trial?
Objection shall be made as soon as the grounds
therefore shall become reasonably apparent.
When do the grounds become apparent?
When the question is asked, usually the questions
shows that it is objectionable
Example: If the witness is asked “Are you married?”
you immediately make your objection on the ground
that it is misleading.
There are innocent sounding questions but the answer may be
inadmissible, can you still object to this?
If the objection is not apparent from the question, it
becomes evident only when the answer is given can
you still object after the object is given?
Example:
Atty: What is the relation of the accused to the
victim?
Witness: They are cousins.
Atty: How do you know they are cousins?
Witness: My neighbor told me that they were
cousins.
When will you make the objection?
Immediately after the answer is given
How?
106
By motion to strike down the answer, or that the
answer be stricken off the record.
Section 39. Striking out answer. — Should a witness answer the question
before the adverse party had the opportunity to voice fully its objection to
the same, and such objection is found to be meritorious, the court shall
sustain the objection and order the answer given to be stricken off the
record.
On proper motion, the court may also order the striking out of answers
which are incompetent, irrelevant, or otherwise improper
Is the objection to the “photocopies” while they were being
identified and marked proper?
Not yet because it is not yet offered.
Later on he may present testimony to authenticate it: “Your
Honor we have the original of the photocopy and we ask that
copy which was marked be compared with the original.”
You can make a formal offer a photocopy provided that the
opposing party stipulates that it is a faithful reproduction of
the original. You may leave a photocopy with the court after
comparing it with the original, because you might need it for
some other case.
What is a demurrer to evidence?
After the prosecution has rested its case and
evidence of the prosecution is not sufficient to
support a conviction, it asks the court to dismiss the
case on the ground the even without evidence for
the defense and by merely looking at the evidence of
the prosecution the accused is entitled to acquittal
because his guilt is not proven beyond reasonable
doubt.
Does a demurrer to the evidence constitute an objection to
the admissibility of evidence?
No because the demurrer assumes that the evidence
is admitted but it is not sufficient to prove guilt.
Even if the court denies the demurrer, that does not
amount to a ruling on the admissibility of evidence
for the prosecution.
Suppose the witness is the wife of the defendant and he is
presented as witness by the plaintiff. The defendant objected
on the ground of privilege communication, but the judge
overruled the objection and required the wife to answer the
question. Can the party who objected to the testimony of the
wife be deemed to have waived his objection to the fact the
testimony is privileged when he conducts his cross-
examination?
No because his objection is already on record. It is
understood that when he conducts a cross-
examination it is on the assumption that on appeal if
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you raise that issue the court will affirm the ruling of
the court. If you raised it on appeal at the court
affirms the ruling then your cross-examination will
be counted
In the Philippines you don’t have to take an exemption to the
ruling of the judge unlike in some jurisdiction. Here if you
raised an objection, it will be part of the record and you can
raise that on appeal.
What should a party do to avoid implied waiver when the
direct testimony of the witnesses were presented in affidavit
form?
In the summary proceedings in the MTC you can
present the affidavit of the witness it can be
regarded as direct testimony and you can conduct
the cross.
But in the RTC this is not the rule. You can object to
the presentation of the affidavit. You can insist that
the witness for the plaintiff be required to testify on
direct.
Some lawyers will present the judicial affidavit of the
witness so that they will not conduct direct
examination so that the defense lawyer may conduct
his cross-examination.
Supposing you are required by the judge to conduct
the cross-examination based on the affidavit but you
don’t want that.
What is the advantage of the judicial affidavit (this is a
question and answer affidavit)
Trial is not delayed.
What is the disadvantage of this?
You are not able to screen the question whether
they are appropriate questions. If there is no basis
for the question you will not be able to object. If
there is no basis for the question hearsay evidence
might sometimes pass through. All those objection
seems to be waived.
What should you do if the judge requires you to accept the
judicial affidavit but your know that there is danger on it?
Preface your cross-examination with a precautionary
objection, that you reserve the right to object to
some things stated in the affidavit if it turns to be
objectionable (i.e. hearsay evidence, privileged
communication or any ground that is not evident
from the affidavit).
Is a motion to strike out available to a party who did not
object to a question expecting that a favorable answer might
result, later on it was unfavorable?
107
No the objection is to late. As a rule late objection
will not be considered.
If the ground for objection is evident from the
question and you did not object promptly, then
answer was already given the judge will only say,
“already answered.”
st
Can objection be made for the 1 time on appeal?
As a rule No. You should have made your objection
in the lower court, because if he objection is
sustained in the appellate court how can the other
party remedy the objection/the fact that answer was
not given. He is not able to make alternative
resorts/ways to bring it out or take remedial steps to
remove the objectionable portion of the testimony.
This creates injustice also the other party.
Distinguish between admissibility and weight of evidence.
Admissibility – determined by competence or by
rules on evidence.
Weight of evidence – how much belief;
persuasiveness or convincing quality of evidence to
move the court to take a particular belief.
Are general objections to evidence allowed? Example:
“Objection that question is objectionable.”
No, objection must be specific for the judge to make
a correct ruling and to enable the other party to
remove the objectionable quality of the question.
What is the effect if the evidence is properly admissible on a
particular issue but not for some other issue; or is admissible
to one party but not with respect to another party but the
objector asked that the evidence be excluded altogether? Can
the objector complain if his objection is overruled?
No, he should have limited his objection for a
particular purpose.
What is the effect of the failure to specify the ground for the
objection? Does this amount to a waiver of the objection?
No.
Section 37. When repetition of objection unnecessary. — When it becomes
reasonably apparent in the course of the examination of a witness that the
question being propounded are of the same class as those to which objection
has been made, whether such objection was sustained or overruled, it shall
not be necessary to repeat the objection, it being sufficient for the adverse
party to record his continuing objection to such class of questions.
Is the repetition of objection to a class of evidence necessary?
No. Interpose a “continuing objection to the same
kind of question,” so you don’t have to object all the
time.
Example: The witness is going to testify on a
privileged matter and the questions covering the
privilege matter are series of questions you can just
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say, “You Honor may I place a continuing objection
to all questions asked with regard to the subject
matter they being privileged.”
The reason for this rule is so that the proceeding will
go smoothly and not cumbersome.
Section 38. Ruling. — The ruling of the court must be given immediately after
the objection is made, unless the court desires to take a reasonable time to
inform itself on the question presented; but the ruling shall always be made
during the trial and at such time as will give the party against whom it is
made an opportunity to meet the situation presented by the ruling.
The reason for sustaining or overruling an objection need not be stated.
However, if the objection is based on two or more grounds, a ruling
sustaining the objection on one or some of them must specify the ground or
grounds relied upon
When must the court rule on an objection?
During the trial.
Can the ruling be made after the trial?
No. So even if he ask for time to resolve it should be
made during the trial.
Why should it be made during the trial?
So that if the objection is sustained, to give the party
whose evidence is excluded the chance to
remedy/remove the objectionable quality of the
evidence.
Must the court always have to give the reason for its ruling
(overruling/sustaining the objection)?
No.
If you are a judge and you don’t know to make a ruling, the
best thing to do is to overrule and let the witness answer.
Otherwise if you make a mistake in sustaining the objection,
later on upon review the answer to that question may be the
one needed to overturn the case. Appellate court will remand
the record. But if the answer is already there and it is
objectionable the court can simply disregard it. If it is not in
the record they might have to a reopening trial for the
evidence to be admitted.
Can a party appeal on a ruling on the admission or exclusion
of his evidence? Example: Objection leading. Sustained. Your
Honor I am going to appeal that ruling the question is not
leading.
No.
The only time you can go up because evidence is
excluded/allowed is when your constitutional right to a
hearing is violated (very rare).
108
What is the remedy against an answer given by the witness
that prevented the adverse party from making a timely
objection?
You stand up and state your motion to strike out
testimony.
Section 40. Tender of excluded evidence. — If documents or things offered in
evidence are excluded by the court, the offeror may have the same attached
to or made part of the record. If the evidence excluded is oral, the offeror
may state for the record the name and other personal circumstances of the
witness and the substance of the proposed testimony.
What is the remedy against a ruling that excludes offered
evidence (i.e. document/letter)?
To have attached to the record.
Why?
So that you can assign them as error on appeal.
When your case is already on appeal you can ask the
appellate court to annul/reverse some of the orders
concerning the admission of evidence.
What is the consequence of your failure to attach on record
the evidence mistaken excluded?
If the appellate court ruled that the RTC made an
error in excluding the evidence, what is the remedy?
CA will annul the decision, remand the case to the
trial court, which will reopen (not necessarily new
trial) the case and admit the evidence into the
record.
If particular evidence is objected and it is objectionable but
instead of excluding it the judge admits it erroneously, it now
forms part of the case, could this admission require a new
trial to have it excluded from the record?
No because Appellate Court will just have to
disregard the erroneous evidence.
Section 1. Preponderance of evidence, how determined. — In civil cases, the
party having burden of proof must establish his case by a preponderance of
evidence. In determining where the preponderance or superior weight of
evidence on the issues involved lies, the court may consider all the facts and
circumstances of the case, the witnesses' manner of testifying, their
intelligence, their means and opportunity of knowing the facts to which there
are testifying, the nature of the facts to which they testify, the probability or
improbability of their testimony, their interest or want of interest, and also
their personal credibility so far as the same may legitimately appear upon the
trial. The court may also consider the number of witnesses, though the
preponderance is not necessarily with the greater number.
What quantum of evidence must a party who bears the
burden of proof in civil cases must establish?
Preponderance of evidence.
On what does the probative value of evidence depend?
Upon the weight and sufficiency that the judge gives
to the evidence.
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What is the meaning of “preponderance of evidence?”
The judge weighs the credibility/conclusiveness of
one evidence as against the evidence of the other
party.
Who will determine the credibility of witnesses whose
testimonies are contradictory? Example: A says that the cat is
black. B say that the cat is white.
The trial judge.
*Questions of fact are best resolved by the trial court, which
has the opportunity to observe the witness on the stand and
determine from their demeanor if they are testifying.
Can the appellate court also weigh the testimony of the
witnesses?
Yes by reading the records, transcript and
documentary evidence.
The primary responsibility of weighing the evidence lies with
the trial. It is only secondary when it comes to the CA.
Why is it only secondary for the CA?
Because the record will not show the timidity,
surliness (angry), forthrightness, belligerence,
indignation, embarrassment, hesitancy, glibness
(bolero), evasiveness, insolence of the witness.
Primarily the Trial Court’s findings concerning the witness’
testimony is given preference, but when is the Appellate Court
not bound by the findings of the trial court even if the latter
heard the witness?
• Patent inconsistencies in statement of witness are
ignored by the TC;
• Conclusions arrived at are clearly erroneous;
• Another judge heard the testimony and another
judge penned the decision
What test determines the value of the testimony of witness?
If you are the how do you test the credibility of the story of
the witness if it is believable or not?
If it is consistent with ordinary experience.
Example: If he says there was a fire and his mother
carried outside the 21 inches TV alone. Can you
believe this?
Yes. Common experience shows that there
is such a thing as adrenaline rush.
Does a testimony have to be corroborated? Example: The
witness tells a story, but nobody seconds it. It is not
corroborated by another witness. Can that be believed?
Yes. Just like in rape cases, wherein the testimony of
the woman cannot usually be corroborated.
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*No rule exist which requires that a testimony has to be
corroborated to be adjudged credible. Witnesses are not
weighed not numbered.
How about the testimony of a state witness? Example: One of
the accused was dropped from the charge and stands to
testify against his co-accused. Do you give the same measure
of credibility as ordinary witnesses?
No if it is not corroborated the testimony of the
state witness should be received with caution.
*Testimony of a state witness, if not materially corroborated,
is not sufficient for conviction.
What is the effect of bias of witness on the testimony?
Example: The mother testifies for the son.
It only affects the credibility of the testimony, but
not its admissibility.
There is a shadow of suspicion when the mother
says her son is handsome when he is not.
Does the fact that a party to the case does not testify at all
raise a presumption against him?
No. The thing only is that since he does not testify he
is unable to deny the testimony against him.
Not that he is guilty because he did not, but he is not
able to refute the testimony against him.
He may have other reason for not testifying not
necessarily because it is against him.
Which has greater weight the witness positive identification
of the accused or the accused denial and explanation?
Example: the witness said, “I saw the accused in broad day
light stabbed the victim” as against the testimony of another
witness saying, “I was not there. I didn’t see him stab the
victim. I was elsewhere.” Which will you give more weight to?
The positive identification has greater.
Section 2. Proof beyond reasonable doubt. — In a criminal case, the accused
is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.
Proof beyond reasonable doubt does not mean such a degree of proof,
excluding possibility of error, produces absolute certainly. Moral certainly
only is required, or that degree of proof which produces conviction in an
unprejudiced mind.
What quantum of proof is required in criminal cases?
Proof beyond reasonable doubt otherwise if you
cannot prove beyond reasonable doubt he is entitled
to acquittal.
What is “proof beyond reasonable doubt?”
Requires only moral certainty or that degree of proof
which produces conviction in an unprejudiced mind.
Absolute certainty is not required.
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Can the prosecutor draw strength from the fact the evidence
of the defense is weak?
No. It must rely on the strength of its own evidence.
If the prosecution presents 2 witnesses and is able to establish
a “prima facie case” (evidence that proves the thing until it is
overcome) will this be to be sufficient basis for conviction if
the accused does not overcome it?
Yes
What is the “equipoise rule?”
If the evidence is capable of 2 interpretations 1 in
favor of the accused and 1 against him, it shall be
interpreted/ruled in favor of the accused.
How important is the proof of the identification of the
accused in a criminal case?
The first duty of the prosecution is to prove the
identity of the criminals.
Identification of the accused is very important.
What is the totality of circumstances?
This has been adopted in resolving the admissibility
of and relying on out-of-court identification of
suspects where the court considers the ff factors:
• Opportunity to view the criminal at the time
of the crime
• Witness degree of attention at that time
• Accuracy of any prior description given by
the witness
• Level of certainty demonstrated by the
witness at the time of identification
• Length of time between the crime and the
identification
• Suggestiveness of the identification
Is identification based only on knowledge of the person’s
name?
No. It can be based of sufficient familiarity of his face
or body.
Is the identification by sound of voice sufficient and
acceptable identification?
Yes if it is established the witness is familiar with the
voice of the person.
*It must be established that the witness and the accused had
known each other personally and closely for a number of
years.
Is the identification of the accused in a police line up
necessary before he is identified in court?
No. If the identification of the witness is not done to
a police line up it does not make it inadmissible.
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This is one of the best ways for preventing the witness from
being open to suggestions.
*What is important is the positiveness of the victim that the
persons charged were the malefactors. Such identification
goes to the credibility of the witness which was tested at the
trial.
There is a shooting and a witness was present there, but
instead of what we expect that the witness is going to crawl
under the table, he did not, he stood up and watched what
was happening. Is this a reason to discredit the witness?
There are variances among witnesses.
*Witnesses react differently to what they see and hear
depending upon their situation and state of mind.
What is the effect of discrepancies in the testimony of a
witness? That the same witness tells a story with
discrepancies. When he is cross examined sometimes he
corrects himself.
It depends on the importance or significance of the
discrepancy. Because witnesses may usually have
small discrepancies.
Example: 1 said the color is dark blue and the other
said not so dark blue; or 5” 2’ and 5” 3’.
These are small discrepancies attributable
to ordinary human error in observations.
They are not fatal discrepancies. Sometimes
they are evidence of truthfulness.
Does variance between the testimony of a witness and his
affidavit affect his credibility?
It depends on what is the discrepancy.
Example: Affidavit says he was not there, but he
testifies in court that he was there. Is this a small
discrepancy?
No. This is very big discrepancy. If the
discrepancy is very significant it will affect
the credibility of the witness.
Affidavit is usually prepared with assistance
of a person who typing the affidavit.
Sometimes the right questions may not be
asked by the person preparing the affidavit.
What is the effect of lack of motive the witness to falsify on
his credibility?
This is important to determine the weight to be
given to the testimony the witness.
*Their testimony shall be entitled to full faith and credit.
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What is the defense of alibi?
When he has evidence that he is not at the crime
scene or he was somewhere else when the crime
was committed.
Is alibi a strong defense?
No. In the Philippines you can easily fabricate alibi.
Unlike in other country people take it seriously. They
will not say that he was with you if he was not with
you. Here you can easily ask your friend to say that
you were with him if somebody asks him?
The delay in complaining or making an accusation impairs the
credibility of the witness?
It depends. If the delay is too long and you don’t
have valid explanation that affects the credibility.
If you have a valid and reasonable explain for the
delay, i.e., because of fear, then that does not affect
your credibility.
Does falsehood in one part of the witness testimony render
the other part of the testimony false and not entitled to
belief?
Not necessarily. Even if he lied on one part if the
other parts are believable on their own their own
then they may still be believed.
*This is the Rule on Partial Credibility.
What are the guiding principles in evaluating evidence in
rape?
• Accusation in rape cases are easy to make because it
does not usually require corroboration
• It is hard to prove and difficult to disprove, since
there are only 2 persons involved in a rape case
• The victims testimony is treated cautiously, because
it is easy to fabricate since there is only 2 of them; So
it is one’s word against the other
• The burden of proof is upon the prosecution
* (a) There is more than one circumstances;
An accusation in rape can be made with facility; it is difficult
to prove, but more difficult to the accused, though innocent
to disprove;
In view of the intrinsic nature of the crime only two persons
are involved, the testimony of the complainant must be
scrutinized with extreme caution.
The evidence for the prosecution must stand and fall on its
merits, and cannot be allowed to draw strength from the
weakness of the evidence for defense.
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Must the weapon used in the crime produced all the time?
No. For purposes of conviction, it is enough that the
prosecution establishes by proof beyond reasonable
doubt that a crime was committed and the accused
is the author thereof.
The production of the weapon used is not a
condition sine quanon, for the same may not have
been recovered at all from the assailant.
Section 3. Extrajudicial confession, not sufficient ground for conviction. — An
extrajudicial confession made by an accused, shall not be sufficient ground
for conviction, unless corroborated by evidence of corpus delicti.
Is the extrajudicial confession of the accused sufficient ground
for conviction?
General Rule: extrajudicial confession of the accused
is not sufficient ground of conviction
UNLESS corroborated by evidence of Corpus Delicti
What is Corpus Delicti?
In English this means the “body of the crime” or the
fact of specific loss or injury. Not the body of the
person murdered or object stolen. This means that
you must prove that a crime was committed.
Does it mean that all the elements of the crime must be
proved by evidence apart from the extrajudicial admission?
No, only the body of the crime (that the crime was
committed) is required but not necessarily all the
elements. The person was killed
Example: Dead Person, that the person was killed.
You don’t have to prove evidence of treachery or
evident premeditation if the accused confessed to
the crime. If is sufficient for conviction if you can
have confession plus evidence of Corpus Delicti.
Section 4. Circumstantial evidence, when sufficient. — Circumstantial
evidence is sufficient for conviction if:
(b) The facts from which the inferences are derived are proven;
and
(c) The combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt.
When is circumstantial evidence sufficient for conviction?
• There is more than one circumstance
• The facts from which the inferences are derived are
proven; and
• The combination of all circumstances is such as to
produce a conviction beyond reasonable doubt
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Does this rule on circumstantial evidence apply to civil cases?
Example: If you bring an action for tort and you want to prove
the negligence by the defendant by circumstantial evidence?
Yes. Circumstantial evidence are as just valid for civil
actions. You can prove certain acts in civil actions by
circumstantial evidence also.
What is the reason for accepting circumstantial evidence to
prove a fact in criminal and civil cases?
The rule is based on necessity, especially in criminal
cases and It is also based on common experience
and reason.
Example: You were seen running away from the
crime scene with a bloodied knife. Is this
circumstantial evidence that you stabbed the victim?
Yes
Section 5. Substantial evidence. — In cases filed before administrative or
quasi-judicial bodies, a fact may be deemed established if it is supported by
substantial evidence, or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion.
When is a fact deemed established in administrative cases?
You prove a fact by substantial evidence.
What is substantial evidence?
Evidence that will support a conclusion from the
point of view of a reasonable man
*Relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion
Are they after the weight of the evidence?
No. So long as the decision is supported by
substantial evidence then it is sufficient even if it
contradicted by heavier/weightier evidence. This is
why in the quantum of evidence is the least kind of
evidence (the least weight).
There could be better evidence but the point is the
evidence in record supports the conclusion.
Section 6. Power of the court to stop further evidence. — The court may stop
the introduction of further testimony upon any particular point when the
evidence upon it is already so full that more witnesses to the same point
cannot be reasonably expected to be additionally persuasive. But this power
should be exercised with caution.
Does the court have the power to stop further evidence?
Example: When the plaintiff already presented 5 witnesses
but still he want to present more. Can the court stop him?
Yes because the evidence is merely cumulative.
Example: There were 5 person saw the accused picked up a
cellphone. You already presented 2 of witnesses,who gave
the same testimony, it would be enough. If you want to
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present the other 3 witnesses the court can already stop you
because you have made your point and the court is satisfied
that you made your point already. Otherwise trial will be
unnecessarily prolonged.
Can there be unfavourable presumption for not placing more
witnesses on the stand?
No because witnesses are weighed, they not
numbered. The weight of the testimony is upon the
credibility of the witness not upon the numerical
superiority.
Section 7. Evidence on motion. — When a motion is based on facts not
appearing of record the court may hear the matter on affidavits or
depositions presented by the respective parties, but the court may direct
that the matter be heard wholly or partly on oral testimony or depositions.
Example: You filed a motion to allow your client (accused) to
leave the Philippines pending the trial because he will go to
another country to close a deal/transaction. So you have to
prove that there is a reason/justification for your client to
leave the country and it is being opposed by the other side. Do
you have to present your witness during the trial?
No
How do you prove the facts contained in your motion?
As a rule by affidavits/depositions.
UNLESS the court require the parties to present
testimonial evidence.
EVID19
RULE ON EXAMINATION OF A CHILD WITNESS
How is the rule on examination of a child witness construed?
Sec. 3. Construction of the Rule.— This Rule shall be
liberally construed to uphold the best interests of
the child and to promote maximum accommodation
of child witnesses without prejudice to the
constitutional rights of the accused.
For what purpose will a court appoint ad litem for a child
victim?
to promote the best interests of the child
To what things will the guardian ad litem attend to?
The guardian ad litem:
(1) shall attend all interviews, depositions, hearings,
and trial proceedings in which a child
participates;
(2) shall make recommendations to the court
concerning the welfare of the child;
(3) shall have access to all reports, evaluations, and
records necessary to effectively advocate for the
child, except privileged communications;
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(4) shall marshal and coordinate the delivery of
resources and special services to the child;
(5) shall explain, in language understandable to the
child, all legal proceedings, including police
investigations, in which the child is involved;
(6) shall assist the child and his family in coping
with the emotional effects of crime and
subsequent criminal or non-criminal
proceedings in which the child is involved;
(7) may remain with the child while the child waits
to testify;
(8) may interview witnesses; and
(9) may request additional examinations by medical
or mental health professionals if there is a
compelling need therefor.
Is the guardian ad litem entitled to access the record?
Yes
What is the role of the guardian ad litem to the child?
To gain confidence by way of talking to the child
Is he entitled to be present on the examination of the child?
Yes
Does he have anything to do with the interview of witnesses?
Yes
Sec. 6. Competency.— Every child is presumed qualified to
be a witness. However, the court shall conduct a competency
examination of a child, motu proprio or on motion of a party,
when it finds that substantial doubt exists regarding the
ability of the child to perceive, remember, communicate,
distinguish truth from falsehood, or appreciate the duty to
tell the truth in court.
What is the presumption as to the competency of the child?
He is presumed to be a competent witness
What is required to the court to take for the child in case
there is some questions about the competency of the child?
the court shall conduct a competency examination
of a child, motu proprio or on motion of a party,
when it finds that substantial doubt exists regarding
the ability of the child to perceive, remember,
communicate, distinguish truth from falsehood, or
appreciate the duty to tell the truth in court.
Who has the burden of proof to show the child is incompetent
to testify?
To rebut the presumption of competence enjoyed by
a child, the burden of proof lies on the party
challenging his competence.
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Who can attend the competency exam?
(1) The judge and necessary court personnel;
(2) The counsel for the parties;
(3) The guardian ad litem;
(4) One or more support persons for the child; and
(5) The defendant, unless the court determines that
competence can be fully evaluated in his absence.
Who can conduct the examination of a child?
Conduct of examination.— Examination of a child as
to his competence shall be conducted only by the
judge. Counsel for the parties, however, can submit
questions to the judge that he may, in his discretion,
ask the child.
Can counsels for investigation or for the defense take part
during the competency examination?
Counsel for the parties, however, can submit
questions to the judge that he may, in his discretion,
ask the child.
What does competency means?
That the child can perceived, recall and narrate
What is the orientation of the competency questions?
Developmentally appropriate questions.— The
questions asked at the competency examination
shall be appropriate to the age and developmental
level of the child; shall not be related to the issues at
trial; and shall focus on the ability of the child to
remember, communicate, distinguish between truth
and falsehood, and appreciate the duty to testify
truthfully.
What should the court establish aside from the ability of the
child to perceived, recall and narrate?
Distinguish between truth and falsehood, and
appreciate the duty to testify truthfully.
May a child be placed under oath if it is merely a competence
examination?
Yes, Oath or affirmation.— Before testifying, a child
shall take an oath or affirmation to tell the truth.
Where such competence examinations take place?
In an open court
In what form should it be conducted?
Examination of a child witness.— The examination of
a child witness presented in a hearing or any
proceeding shall be done in open court. Unless the
witness is incapacitated to speak, or the question
calls for a different mode of answer, the answers of
the witness shall be given orally.
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Can this be done in a special way not in the open court?
Yes
What if the child does not understand English or Filipino, or he
is unable to communicate because of his developmental level
or fear, shyness…etc?
When a child does not understand the English or
Filipino language or is unable to communicate in said
languages due to his developmental level, fear,
shyness, disability, or other similar reason, an
interpreter whom the child can understand and who
understands the child may be appointed by the
court, motu proprio or upon motion, to interpret for
the child.
Who can be appointed as an interpreter?
an interpreter whom the child can understand and
who understands the child may be appointed by the
court, motu proprio or upon motion, to interpret for
the child. One who can be understood by the child
and the one who can understood the child
must the interpreter also be under oath?
Yes, an interpreter shall take an oath or affirmation
to make a true and accurate interpretation.
When may the judge designate a facilitator to ask question?
The court may, motu proprio or upon motion,
appoint a facilitator if it determines that the child is
unable to understand or respond to questions asked.
Who may be appointed as facilitator?
The facilitator may be a child psychologist,
psychiatrist, social worker, guidance counselor,
teacher, religious leader, parent, or relative.
Who may accompany the child at the witness stand when the
child testifies?
A child testifying at a judicial proceeding or making a
deposition shall have the right to be accompanied by
one or two persons of his own choosing to provide
him emotional support.
Can there be more than one support person?
It can be one or more
What is the limit to a support person be allowed to
accompany the child?
If the support person chosen by the child is also a
witness, the court may disapprove the choice if it is
sufficiently established that the attendance of the
support person during the testimony of the child
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would pose a substantial risk of influencing or
affecting the content of the testimony of the child.
If the support person who is also a witness is allowed
by the court, his testimony shall be presented ahead
of the testimony of the child.
May the court prevent counsels from coaching the child?
Yes, The court may prohibit a counsel from
approaching a child if it appears that the child is
fearful of or intimidated by the counsel.
Why?
to create a more comfortable environment for the
child
Is a narrative testimony allowed for the child?
Yes, the court may allow the child witness to testify
in a narrative form
Are leading questions allowed?
Yes, the court may allow leading questions in all
stages of examination of a child if the same will
further the interests of justice.
How should objections be made?
Objections to questions should be couched in a
manner so as not to mislead, confuse, frighten, or
intimidate the child.
Is corroboration required in the testimony of the child?
Corroboration shall not be required of a testimony of
a child. His testimony, if credible by itself, shall be
sufficient to support a finding of fact, conclusion, or
judgment subject to the standard of proof required
in criminal and non-criminal cases.
May the public be excluded from the examination of the child
witness?
When a child testifies, the court may order the
exclusion from the courtroom of all persons,
including members of the press, who do not have a
direct interest in the case.
For what reason?
Such an order may be made to protect the right to
privacy of the child or if the court determines on the
record that requiring the child to testify in open
court would cause psychological harm to him, hinder
the ascertainment of truth, or result in his inability
to effectively communicate due to embarrassment,
fear, or timidity. The testimony may be offensive to
decency
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May the accuse request the exclusion of the public from the
court room?
Yes
What is live-link television testimony?
Testimony of the child taken in a room outside the
courtroom and be televised to the courtroom by
live-link television.
Who may request live-link television testimony?
The prosecutor, counsel or the guardian ad litem
may apply for an order that the testimony of the
child be taken in a room outside the courtroom and
be televised to the courtroom by live-link television.
May the court by itself order a live-link television testimony?
Yes, the court may motu proprio hear and
determine, with notice to the parties, the need for
taking the testimony of the child through live-link
television.
How can a child identify the accused?
The court may allow the child to go to the court
room and point the person
The accused while his accuser is testifying, does the live-link
television testimony prevent the accused to be present?
No, the accused is entitled to be present during the
live-link presentation.
What is the reason for the above situation?
To prevent fear that may impair the child from
testifying truthfully
What arrangement can be made to shield the child from the
accused apart from live-link?
The prosecutor or the guardian ad litem may apply
for an order that the chair of the child or that a
screen or other device be placed in the courtroom in
such a manner that the child cannot see the accused
while testifying.
What alternative procedure can be resorted to for the taking
of the testimony of the child apart from open-court
testimony?
The prosecutor, counsel, or guardian ad litem may
apply for an order that a deposition be taken of the
testimony of the child and that it be recorded and
preserved on videotape.
Who will preside on the deposition?
The judge shall preside at the videotaped deposition
of a child.
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Is that allowed for an unlimited audience?
No, only for a limited audience
The other persons who may be permitted to be
present at the proceeding are:
(1) The prosecutor;
(2) The defense counsel;
(3) The guardian ad litem;
(4) The accused, subject to sub-section (e);
(5) Other persons whose presence is
determined by the court to be necessary to
the welfare and well-being of the child;
(6) One or both of his support persons, the
facilitator and interpreter, if any;
(7) The court stenographer; and
(8) Persons necessary to operate the videotape
equipment.
Can depositions take the place of open court testimony?
As a rule, No
When can depositions take the place of open court
testimony?
If, at the time of trial, the court finds that the child is
unable to testify for a reason stated in Section 25(f)
of this Rule, or is unavailable for any reason
described in Section 4(c), Rule 23 of the 1997 Rules
of Civil Procedure, the court may admit into
evidence the videotaped deposition of the child in
lieu of his testimony at the trial. The court shall
issue an order stating the reasons therefor.
Is hearsay testimony concerning abuse of a child allowed?
Yes, Hearsay exception in child abuse cases.— A
statement made by a child describing any act or
attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be admitted
in evidence in any criminal or non-criminal
proceeding
Is the testimony of the parent when he ask the child about
what happened, is that admissible?
Yes
Is that sufficient evidence for conviction?
No, it is only additional evidence, that the child has
made such statement
May the accused object in the hearsay testimony concerning
the abuse of the child?
Yes
May the accused ask that the child be present during
presentation of the hearsay testimony of the child so that the
accused may cross examine the child?
Yes, except when the child is unavailable
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What things are to be considered before admitting hearsay
testimony?
In ruling on the admissibility of such hearsay
statement, the court shall consider the time, content
and circumstances thereof which provide sufficient
indicia of reliability. It shall consider the following
factors:
(1) Whether there is a motive to lie;
(2) The general character of the declarant
child;
(3) Whether more than one person heard the
statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the
relationship between the declarant child
and witness;
(6) Cross-examination could not show the lack
of knowledge of the declarant child;
(7) The possibility of faulty recollection of the
declarant child is remote; and
(8) The circumstances surrounding the
statement are such that there is no reason
to suppose the declarant child
misrepresented the involvement of the
accused.
Can there be a cross examination on this witness? Is the cross
examiner of the witness who says the hearsay testimony of
the child allowed?
Yes
If the child is unavailable, is the hearsay testimony
admissible?
Yes, when the child witness is unavailable, his
hearsay testimony shall be admitted only if
corroborated by other admissible evidence.
May video interviews of the child’s investigators be
presented? Is the interview admissible as evidence?
Yes, Admissibility of videotaped and audiotaped in-
depth investigative or disclosure interviews in child
abuse cases.— The court may admit videotape and
audiotape in-depth investigative or disclosure
interviews as evidence, under the following
conditions:
(a) The child witness is unable to testify in
court on grounds and under conditions
established under Section 28 (c).
(b) The interview of the child was conducted by
duly trained members of a multidisciplinary
team or representatives of law
enforcement or child protective services in
situations where child abuse is suspected so
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as to determine whether child abuse
occurred.
(c) The party offering the videotape or
audiotape must prove that:
(1) the videotape or audiotape
discloses the identity of all
individuals present and at all times
includes their images and voices;
(2) the statement was not made in
response to questioning calculated
to lead the child to make a
particular statement or is clearly
shown to be the statement of the
child and not the product of
improper suggestion;
(3) the videotape and audiotape
machine or device was capable of
recording testimony;
(4) the person operating the device
was competent to operate it;
(5) the videotape or audiotape is
authentic and correct; and
(6) it has been duly preserved.
If the child is available to testify in court, could that be
presented?
No, the child must be unavailable
What should the party offering the video or audio tape prove?
(1) the videotape or audiotape discloses the
identity of all individuals present and at all times
includes their images and voices;
(2) the statement was not made in response to
questioning calculated to lead the child to make
a particular statement or is clearly shown to be
the statement of the child and not the product
of improper suggestion;
(3) the videotape and audiotape machine or device
was capable of recording testimony;
(4) the person operating the device was competent
to operate it;
(5) the videotape or audiotape is authentic and
correct; and
(6) it has been duly preserved.
Is non-conduct of video interview fatal of the case? The failure
of the investigator to conduct a video interview
No, other means can be done
Inadmissible evidence — The following evidence is not
admissible in any criminal proceeding involving alleged child
sexual abuse:
(1) Evidence offered to prove that the alleged victim
engaged in other sexual behavior; and
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(2) Evidence offered to prove the sexual predisposition of entitled to cross examine the witness for the accused or for
the alleged victim. the prosecution based on the affidavits. The affidavits stand
as direct testimony of the accused.
Exception.— Evidence of specific instances of sexual behavior
by the alleged victim to prove that a person other than the
accused was the source of semen, injury, or other physical
evidence shall be admissible.

Will evidence to prove that the child victim engaged into

sexual behavior allowed?
As a rule, No. if there is evidence of specific instance
of sexual, not just reputation of the child, hence it
may be allowed.

Is the records of the proceeding may be made available to the

public?
Any record regarding a child shall be confidential and
kept under seal. Except upon written request and
order of the court, a record shall only be released to
the following:
(1) Members of the court staff for
administrative use;
(2) The prosecuting attorney;
(3) Defense counsel;
(4) The guardian ad litem;
(5) Agents of investigating law enforcement
agencies; and
(6) Other persons as determined by the court.

What distinguishes the reception of evidence in a summary

procedure from the procedure in the RTC? Is the reception of
evidence in the MTC in a civil action the same way with
regular courts? Is there a trial in the RTC when the witnesses
are presented and examined in open court?
Yes

In summary proceeding in civil action, is there such a trial

where the witnesses are examined in open court?
None, what is only required are affidavits of the
witness

What is required for the parties to submit?

Affidavits and Position Papers

As a rule, there is no reception of testimony in summary

proceedings. Only affidavits and position papers. There is no
opportunity to cross examine the witness unless the court
requires that the witnesses appear for questioning.

How about in criminal cases, is it the same?

No, it’s different

In criminal cases only the affidavits of the parties are

regarded as their direct testimonies, but the other party is

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