BEST EVIDENCE RULE
originals and either of them may be introduced in evidence as
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.
IMPT REQ!!! – writing or material must be offered as proof of
its contents.
Basic Requisites for admissibility:
1) Must be relevant
2) Authenticated by competent witness
3) Formally offered
[BAR Q] May a private document be offered and admitted in
evidence both as documentary evidence and as object
evidence?
A: Yes.
SECTION 4. Original of document
a) The original of a 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.
The term “original” is not necessarily the first or the earliest
version or copy of a document.
(SPS. ALFARO vs CA)
Original does not mean the first paper written, in contrast to a
copy or transcript made later. It is immaterial whether that
document was written before or after another as long as its
contents are the subject of inquiry.
Duplicate original rule
- 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.
- Any such copy may be introduced in evidence
without accounting for the non-production of the
other copies.
Requisites:
1) There must be entries made and repeated in the
regular course of business
2) The entries must be made at or near the time of the
transaction
(BPI vs SMP)
The receipt presented by SMP is deemed as an original,
considering that the triplicate copy of the provisional receipt
was executed at the same time as the other copies of the
same receipt involving the same transaction.
(CAPITAL SHOES FACTORY vs TRAVELER KIDS)
When carbon sheets are inserted between two or more sheets
of writing paper so that the writing of a contract upon the
outside sheet, including the signature of the party to be
charged thereby, produces a facsimile upon the sheets
beneath, such signature being thus reproduced by the same
stroke of pen which made the surface or exposed impression,
all of the sheets so written on are regarded as duplicate
such without accounting for the nonproduction of the others.
(RAMOS vs CA)
Entries in the account ledgers of the depositors which are on
file on the bank may be regarded as originals.
BEST EVIDENCE RULE
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 I court, without bad faith on
the part of the offeror;
b) When the original is in the custody or under
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 lost 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.
PURPOSE: prevention of fraud or mistake in the proof of the
contents of a writing.
(PEOPLE vs BAGO)
The rule cannot be invoked unless the content of a writing is
the subject of judicial inquiry. The rule pertains to the
admissibility of secondary evidence to prove the contents of a
document.
Requisites:
1) Subject matter must involve a document
2) The subject of inquiry is the contents of a document
WAIVER OF BER
And when a party failed to interpose a timely objection to
evidence at the time they were offered in evidence, such
objection shall be considered as waived.
BER not applicable (LEE VS PP)
1) Proof of facts are collateral to the issues such as the
nature, appearance or condition of physical objects
2) Evidence does not come from the foundation of the
cause of action or defense
3) When a party uses of document to prove the
existence of an independent fact, as to which the
writing is merely collated or incidental.
COLLATERAL FACTS RULE
- When the document is involved in the inquiry but is
only collateral in issue, the BER does not apply.
- It is not to established the terms but only to show
facts that have no reference to its contents.
BER can be waived if it is not raised in the trial or for failure of
the other party to object, when the document is offered.
EVIDENCE MIDTERMS
ALEX RABANES
UNAVAILABILITY OF THE ORIGINAL
GR: So long as the original is available, no other evidence
can be substituted for the original
EXN: If the original cannot be presented, the party must
find a legal justification for the failure to present the
original and the present secondary evidence.
LAYING THE BASIS:
After the party has legally justified its failure to present the
original. Production of secondary evidence requires
compliance with the following: (CITIBANK VS TEODORO)
1) The offeror must prove the execution or existence of
the original
2) Show cause of its unavailability
3) Unavailability was without bad faith on his part.
Correct order of proof is as follows: EXISTENCE,
EXECUTION, LOSS, CONTENTS.
(ONG CHING PO VS CA)
After laying the basis for the introduction of secondary
evidence, the offeror my now be allowed to prove the contents
of the documents by secondary evidence,
1) By a copy of the original
2) By a recital of its contents in some authentic
document
3) By the testimony of witnesses.
Secondary evidence is admissible when the original
documents were actually lost or destroyed. But prior to the
introduction of sch secondary evidence, the proponent must
establish the former existence of the document.
SECONDARY EVIDENCE PRESENTED
(DELA CRUZ vs CA)
It is a well-settled principle that before secondary evidence
can be presented, all duplicates and/or counterparts must be
accounted for, and no excuse for the non-production of the
original document itself can be regarded as established until
all its parts are unavailable.
WHEN NUMEROUS ACCOUNTS
(COMPANIA MARITIMA VS ALLIED FREE WORKERS
UNION)
The BER cannot be applied in this case because the
voluminous character of the records, on which the
accountants’ reports were based, was not duly established.
It is also a requisite that the records and accounts should be
made accessible to the adverse party so that the company, of
the summary may be tested on cross-examination.
(Atlas Consolidated Mining and Dev. Corp. vs CIR)
The party who desires to introduce as evidence such
voluminous accounts must, after motion and approval of the
court, present:
A) SUMMARY
B) CERTIFICATION
SECTION 6. When original 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.
The party who seeks to present secondary evidence must lay
the foundation for its introduction, subject to the following
requisites:
1) Original exists
2) Under the custody or control of the adverse party
3) Given reasonable notice to produce the original
4) Failure to produce the original by the adverse party
despite the reasonable notice
In cases wherein the refusal of failure of the parties to produce
the original is justified, it does not give rise to the presumption
of suppression of evidence, or create an unfavorable
inference against him. It only authorizes the presentation of
secondary evidence.
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.
Original Document as a Public Record
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.
REASON: Any public record is irremovable from the office
which it is kept.
Thus, where the original document is a public record, the
secondary evidence allowed is a CERTIFIED TRUE COPY
issued by the public officer in custody thereof.
BEST EVIDENCE RULE FOR ELECTRONIC DEVICE
1) Electronic evidence shall be regarded as equivalent
to an original document if it is a print out or output
readable by sight or other means shown to reflect the
data accurately
2) Two or more copies executed at or about the same
time with identical contents, considered as
equivalent of the original
EXN: Not admissible if:
a) Genuine question is raised as to the
authenticity of the original
b) Unjust or inequitable to admit a copy in
lieu of original
EVIDENCE MIDTERMS
ALEX RABANES
 3) Original of the document same requisites

(MCC Industrial Sales Corp vs Ssangyong Corp)

A facsimile transmission cannot be considered as electronic
device. It is not the functional equivalent of a n original under
the BER and is not admissible as electronic device.

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.

No unfavorable inference can be drawn for not offering a

document in evidence if the party who calls for its production
or inspection does not offer the same in evidence.

NON-CODAL EXCEPTION

(ESTRADE vs DESIERTO)
Production of the original may be dispensed with, in the trial
court’s discretion, whenever in the case in hand the opponent
does not bona fide dispute the contents of the document and
no other useful purpose will be served by requiring production.

(PEOPLE vs ABELLA)
The non-presentation of the original copy of the handwritten
agreement is not fatal to the prosecution’s case. The
handwritten agreement merely substantiates the testimony at
best.

EVIDENCE MIDTERMS
ALEX RABANES
PAROL EVIDENCE RULE
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) Intrinsic ambiguity, mistake or imperfection of
the written agreement;
b) The failure of the written agreement to express
the true intent and agreement of the parties;
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.
GR: If the subject inquiry are the terms of a written
agreement, there can be no evidence of such terms
other than the agreement itself.
Thus, parol or oral or extrinsic evidence or evidence aliunde
is not allowed to modify, explain or add to the terms.
When an agreement has been reduced to writing, the parties
cannot be permitted to adduce evidence to prove alleged
practices, which to all purposes would alter the terms of the
written agreement. It is known as the RULE OF
INTEGRATION or RULE OF EXCLUSION.
Basis of the Parol Evidence Rule:
1) Principle of hierarchy of evidence
2) Principle of waiver
3) Comparative accuracy of written evidence over all
else that rest merely on the fleeting memory of man
4) Most prone to fabrication
5) Primacy to the intention of the parties as the law
between them
6) Stability to written agreements and to remove the
temptation of perjury
Requisites:
1) There must be an agreement
2) Reduce in writing
3) Dispute is between the parties or their successors in
interest
4) Dispute as to the terms of the agreement
1st: AGREEMENT
It is where there is meeting of the minds of the parties and the
same is reduced into writing.
Verily, a will is not an agreement. However, by force of the
rules and in an apparent legal fiction, a will is an agreement
as well although there is clearly no meeting of the minds.
Why? To avoid perjury.
(AZUELA vs CA)
The Rule, in order to apply, does not require the agreement to
be embodied in a public document, or to be in any particular
form or, even that the same be signed by both parties.
Electronic Documents
- PER applies also to agreements that are electronic
in form if it complies with the rules on admissibility
prescribed by the Rules of Court and related laws
and is authenticated.
This applies only to traditional agreements and not to wills.
Because based on the current state of PH law, electronics
wills are not yet allowed.
REASON FOR THE APPLICABILITY IN WILLS
The dangers sought to be avoided by the requirement of the
rule is present in making of wills and are deemed to be more
prevalent inasmuch as the maker of a will, the decedent, can
no longer object to attempt to vary his testamentary intent as
his voice is already silenced by death.
Two types of wills:
1) Holographic will – must be entirely written, dated,
signed by the hand of the testator himself. It is
subject to no other form, and be made in or out of the
PH, and need not be witnessed.
2) Notarial will – must be subscribed by the testator
himself and must be acknowledged before a Notary
Public by the testator and the witnesses.
Nevada is the only state in the US that specifically provides
guidelines for creating a valid e-wills.
Ohio has trial court decisions declaring e-wills to be valid.
Arizona and North Carolina accept only wills that are executed
using paper.
Indiana does not accept e-wills but allows videotapes to
evidence the authenticity and proper execution of a will as well
as the testator’s intent and mental capacity.
2nd: REDUCED TO WRITING
It is not required that the agreement should be in a public
instrument for the applicability of the PER. (INCIONG vs CA)
What is required is that the agreement be in writing as the rule
is in fact founded on long experience that written evidence is
so much more certain and accurate than that which rests in
fleeting memory only, that it would be unsafe, when parties
have expressed the terms of their contract in writing, to admit
weaker evidence to control and vary the stronger and to show
that the parties intended a different contract from that
expressed in the writing signed by them.
3rd: DISPUTE IS BETWEEN THE PARTIES OR THEIR
SUCCESSORS IN INTEREST
If one of the parties to the case is a complete stranger to the
contract involved therein, he is not bound by this Rule and can
introduce extrinsic evidence against the efficacy of the writing.
(LECHUGAS vs CA)
4th: THERES IS DISPUTE AS TO THE TERMS OF THE
AGREEMENT
The PER does not apply if it is merely collateral in issue and
the rights and obligations does not emanate from the
agreement itself.
EVIDENCE MIDTERMS
ALEX RABANES
Condition precedent – may be established by PER because
there is no varying of the terms for the reason that there is yet
no contract in existence.
Condition subsequent – may not be established by PER since
a written contract already exists.
EXCEPTIONS
a) Intrinsic ambiguity, mistake or imperfection of
the written agreement
Ambiguity – susceptible of two or more interpretations.
Two types of ambiguity:
1) PATENT or EXTRINSIC AMBIGUITY
o Ambiguity apparent on the face of an
instrument
o Cannot be cured by parol evidence
If there is a mere imperfect description, the principle of FALSA
DEMONSTRATIO NON NOCET (a false or mistake
description does not vitiate) applies.
(BORILLO vs CA)
In order to admit parol evidence to aid in the description of the
subject matter of a deed or other writing, there must be a
description that will serve as a foundation for such evidence.
The writing must at least give some data from which the
description may be found and made certain.
Parol evidence is not admissible to identify the property where
the description thereof is so vague as to amount to no
description at all.
In other words, parol evidence is not permitted to supply a
description, but only to apply it.
2) LATENT or INTRINSIC AMBIGUITY
o The wording of an instrument is on the face
of it clear and intelligible but may apply
equally to two different things or subject
matter.
o May be explained by parol evidence.
3) INTERMEDIATE AMBIGUITY and EVIDENCE
ALIUNDE
o May be admitted by the court to explain or
add to its meaning
o Arises by the use of equivocal word/s which
is susceptible of more than one
interpretation.
Mistake
- The mistake contemplated as an exception to the
parol evidence rules is one which is a mistake of fact
mutual to the parties and must be put in issue by the
pleadings. (MAGELLAN MANUFACTURING
MARKETING vs CA)
Imperfection
- Writing is incomplete and does not express the whole
agreement of the parties.
- There is failure of the parties to lay down all the terms
and conditions which constitutes the agreement.
Fraud
(ALORIA vs CLEMENTE)
The reliance by the CA on the parol evidence rule is
misplaced, because one of the exceptions to this rule is when
a party puts in issue in his pleading the validity of the written
agreement.
Forgery cannot be presumed it must be proved by clear and
convincing evidence and whoever alleges it has the burden of
proving the same.
Fraud and Illegality
(BOUGH vs CANTIVEROS)
If the validity of the agreement is the issue, parol evidence
may be introduced to establish illegality and fraud.
False representation
(WOODHOUSE vs HALILI)
The act or statement of the plaintiff was not sought to be
introduced to change or alter the terms of the agreement, but
to prove how he induced the defendant to enter to it. To prove
the representations or inducements, or fraud by which he
secured the other party’s consent.
b) Failure of the written agreement to express the
true intent and agreement of the parties
Such an exception obtains where the written contract is so
ambiguous or obscure in terms that the contractual intention
of the parties cannot be understood from a mere reading of
the instrument.
In such a case, extrinsic evidence of the subject matter of the
contract, of the relations of the parties to each other, and of
the facts and circumstances surrounding them may be
received to enable the court to make a proper interpretation of
the instrument. (DEL ROSARIO vs SANTOS)
Examples of written agreements that does not express the
true intention of the parties and thus parol evidence may be
admissible:
1) Equitable mortgages
2) Leases with option to buy
3) Conditional sale
c) Validity of the written agreement
Where a party seeks to present oral evidence to prove that the
contract is not valid, he must, as in all the other, raise the
invalidity of the contract in the pleading.
d) Existence of other terms agreed after the
execution of the written agreement
All prior agreements must be deemed incorporated in the
written agreement.
COVERED AGREEMENTS: (PER is applicable)
Only prior and contemporaneous agreements which are
deemed to have been merged in the writing conformably to
the integration of the agreement rule.
NOT COVERED: (thus provable by parol evidence)
1) Subsequent agreements
2) Collateral agreements (contemporaneous oral
agreements)
3) All other agreements (whether prior &
contemporaneous, subsequent or collateral)
a. If the issue revolves around fraud and false
representation since they are incidental to
the execution and not to the integration
b. When 3rd parties who are not privy thereto
are involved
EVIDENCE MIDTERMS
ALEX RABANES
Contemporaneous agreements
– one entered into at the same time as the agreement which
has been reduced to writing.
When a contemporaneous oral agreement is separate and
distinct from the written agreement, such oral agreement may
be proved by parol evidence.
Test to determine whether COA is distinct and separable thus
provable by parol evidence:
1st: If the subject matter of written agreement is different from
COA
2nd: If the two agreements refer to the same subject matter,
the test is to determine if the COA is separable.
(ABELLA vs ABELLA)
For parol evidence to be admitted:
1) Existence of any of the 4 exceptions must be put in
issue in his pleading or has not been objected to by
the adverse party
2) Parol evidence to be presented must serve to form
basis of the conclusion proposed by the party
presenting it.
a. It must be relevant
b. Tending to induce belief in the existence of
the flaw, true intent or subsequent
extraneous terms
(SPS PARAS vs KIMWA)
As with all the possible objections to the admission of
evidence, a party’s failure to timely object is deemed a waiver
and parol evidence may then be entertained.
Examples of Collateral Agreements provable by parol
evidence:
1) Agreement of reconveyance
2) Inducements and representations
3) Independent and collateral agreement
4) Condition precedent not stipulated in writing (ex.
Conditional sale)
5) Verbal assurances of check
6) Any prior or contemporaneous conversation in
connection with a note or indorsement
7) Extrinsic agreement between indorser and indorsee
8) Sureties contract
(PNB vs SEETO)
Any prior or contemporaneous conversation in connection
with a note or its indorsement, may be proved by parol
evidence.
An extrinsic agreement between indorser and indorsee which
cannot be embodied in the instrument without impairing its
credit is provable by parol evidence.
(MCIA vs CA)
Where a parol contemporaneous agreement was the moving
cause of the written contract, or where the parol agreement
forms part of the consideration of the written contract, and it
appears that the written contract was executed on the faith of
the parol contract or representation, such evidence is
admissible.
The rule excluding parol evidence to vary or contradict a
writing does not extend so far as to preclude the admission of
existing evidence to show prior or contemporaneous collateral
parol agreements between the parties, but such evidence may
be received, regardless of whether or not the written
agreement contains any reference to such collateral
agreement, and whether the action is at law or in equity.
(REPUBLIC vs ROQUE)
The parol evidence was inadmissible because the
respondents failed to expressly plead that the deeds of sale
did not reflect the parties’ intention.
The court emphasizes that this cannot be done because they
failed to put in issue in their pleadings any exception to the
parol evidence rule.
LABOR TRIBUNALS
(ILEU vs INTERPHIL LAB)
Rules of procedure and evidence are not applied in a very rigid
and technical sense in labor cases.
BEST EVIDENCE RULE DISTINGUISHED FROM PAROL
EVIDENCE RULE
1) In the BER, the original document is not available or
there is dispute as to whether said writing is original,
whereas in PER, it presupposes that the original
document is available in court
2) In terms of application, the BER applies to all kinds
of writing, whereas in PER, it applies only to
documents which are contractual in nature.
3) BER prohibits the introduction of secondary
evidence regardless of whether or not it varies the
contents of the original. On the other hand, PER
prohibits the varying of the terms of the written
agreement.
4) As to its parties, BER can be invoked by any party to
an action whether he has participated or not in the
writing, whereas in PER, it can be invoked only when
the controversy is between the parties to the written
agreement and their privies.
5) The proper time to object under BER is always after
the presentation of a party’s testimonial evidence,
whereas in PER, the proper time to object depends
on when the objectionable nature of the evidence
aliunde becomes apparent.
PAROL EVIDENCE RULE DISTINGUISHED FROM
STATUTE OF FRAUDS
SOF requires that certain agreements be proved by writing or
by some note or memorandum thereof in order to be
enforceable.
On the other hand, PER has nothing to do with the manner of
proving agreements. Its object is to prohibit the varying of the
terms of the written agreement by parol evidence.
EVIDENCE MIDTERMS
ALEX RABANES
TESTIMONIAL EVIDENCE 4) Must not possess the disqualifications imposed by
law or the rules
Qualifications of witnesses
FIVE CAPACITIES:
When competence is applied to a witness, it means that the
witness is qualified to take to stand and testify on a particular 1) Capacity of observation (ability to perceive)
matter in a juridical proceeding. 2) Capacity of recollection (ability to remember)
3) Capacity of communication
If a witness cannot perceive or even if he can perceive he 4) Capacity of discernment (ability to distinguish truth
cannot remember what he has perceived, he is incompetent from falsehood)
to testify. 5) Capacity of appreciation of duty

If he has no personal knowledge of an event the truth of which
he wants to prove, he is also incompetent to testify.
Competence of a witness therefore, refers to his personal
qualifications to testify.
Except as provided for in the Rules, all persons who can
perceive, and perceiving, can make known of their perception
to others, may be witnesses.
Not a ground for disqualification, unless provided by law:

1) Religious or political belief

SECTION 20. Witnesses; their qualifications.
Except as provided in the next succeeding section, all
persons who can perceive, and perceiving, can make
their known perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the
case, or conviction of a crime unless otherwise provided
by law, shall not be ground for disqualification.
Basic qualification of witnesses:
1) He can perceive
Corollary to this capacity to perceive is the requirement that
the witness must have personal knowledge of the facts
surrounding the subject matter of his testimony.
2) In perceiving, he can make known his perception to
others
a) Ability to remember what has been perceived
b) Ability to communicate the remembered
perception
(PEOPLE vs TUANGCO)
Deaf-mutes are not necessarily incompetent as long
as they:
 can understand and appreciate the sanctity
of the oath
 comprehend the facts they are going to
testify
 can communicate their ideas through a
qualified interpreter
3) Must take their oath or affirmation
An oath or affirmation is necessary for the witness to
recognize the duty to tell the truth.
2) Interest in the outcome of the case
3) Conviction of a crime
4) Parties in Default
(CAVILI vs FLORENDO)
The law does not provide default as exception. Hence, default
of a party does not make him incompetent to be a witness.
(PEOPLE vs BONIAO)
Relationship is not a ground for disqualification as witness
(PEOPLE vs SORREL)
Even a person convicted of a crime or one who has a pending
criminal case is not by that alone disqualified from testifying.
(PEOPLE vs TANEO)
The mere pendency of a criminal case against a person does
not disqualify him from becoming a witness.
In the absence of evidence to show any reason or motive why
witnesses for the prosecution should have testified falsely, the
logical conclusion is that no improper motive existed, and that
their testimony is worthy of full faith and credit.
Drunk person
(PEOPLE vs CATALINO)
Witness is drunk at the time he is called to testify. May not be
considered incompetent but he may be held in contempt and
may affect the probative value of his testimony.
Disqualified from being witnesses:
Art. 821. The following are disqualified from being witnesses
to a will:
a) Any person not domiciled in the PH
b) Those who have been convicted of falsification of a
document, perjury or false testimony.

A person is disqualified to be a witness if he is incapable of

understanding the duty to tell the truth. A lie thus told on the SECTION 21. Disqualification by reason of mental
witness stand subjects the witness to perjury. incapacity or immaturity.

Any objection to the competency of a witness raises an issue
of fact: whether or not the witness is capable of understanding
the duty to tell the truth.
The issue is addressed to judicial determination and in the
absence of a clear abuse of discretion the trial court’s findings
will not be reversed.
Not all may want to take on oath for reasons of religion or lack
of it thus he may make an affirmation instead.
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
(PEOPLE vs DELA CRUZ)
Even a mental retardate is not, per se, disqualified from being
a witness if he has the ability to make her perceptions known
to others.

EVIDENCE MIDTERMS
ALEX RABANES
(PEOPLE vs DELOS SANTOS) Sec. 4 Definitions
A mental retardate is not, by reason of such handicap alone,
disqualified from testifying in court. He or she can be a witness c) “Facilitator” means a person appointed by the
depending on his or her ability to relate what he or she knows. court to pose questions to a child.

If the testimony of a mental retardate is coherent, the same is
admissible in court.
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.
(PEOPLE vs GALAS)
Any child, regardless of age, can be competent witness if they
meet the following criteria:
e) “Guardian ad litem” is a person appointed by the
court where the case is pending for a child who is a
victim of, accused of, or a witness to a crime to
protect the best interests of the said child.
GUARDIAN AD LITEM
In making the appointment, the court shall consider the
background of the guardian ad litem and his familiarity with
judicial process, social service programs, and child
development, giving preference to the parents of the child, if
qualified.

a) Capacity of observation He/she may also be a member of the PH Bar.

b) Capacity of recollection
c) Capacity of communication A person who is a witness in any proceeding involving the
child cannot be appointed as guardian ad litem.

(PEOPLE vs BARING) The guardian ad litem shall be notified of all proceedings but
Great care must be observed in order to make the shall not participate in the trial.
examination less stressful lest they be more traumatic to the
victim than the very assault itself. PRIVILEGE COMMUNICATION RULE
- Shall not testify in any proceeding concerning
The value of collecting evidence should always be weighed information, statement, or opinion received from the
against the emotional cost of the procedure and examination child in the course of serving as guardian ad litem,
of the child. unless the court finds it necessary to promote the
best interest of the child.
Children now enjoy the presumption of competency under the
Rule of Examination of a Child Witness. PRESUMPTION OF REGULARITY OF PRIVATE
TRANSACTIONS
Sec 6. Competency. - Shall be presumed to have acted in good faith in
compliance with his duties
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 the party, when if 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.
(b) Burden of proof – To rebut the presumption, the burden of
proof lies on the party challenging his competence.
(c) Persons allowed at competency examination
1) Judge and necessary court personnel
2) Counsel for the parties
3) Guardian ad litem
4) One or more support persons
5) Defendant
VOIRE DIRE EXAMINATION
- It is the preliminary examination of prospective
witnesses under oath to determine their competence
or suitability.
(PEOPLE vs BISDA)
If a party believes that the witness is incompetent or is not
aware of his obligation and responsibility to tell the truth and
the consequences of his testifying falsely, such party may pray
for leave to conduct a voire dire examination on such witness
to test his competency.
The court may motu proprio conduct the voire dire
examination.
Sec. 8 Examination of a child witness

Sec. 1 Applicability of the Rule 1) Should be done in open court

2) If incapacitated to speak, or the question calls for a
This rule shall govern the examination of child witnesses who different mode of answer, may be made orally
are victims of crime, accused of a crime, and witnesses to
crime. Other manner:

It shall apply in all criminal proceedings involving child a) Live-link

witnesses. b) Videotape
c) Audio tape
Sec. 2 Objectives d) Videoconferencing

To create and maintain an environment that will allow children

to give reliable and complete evidence, minimize trauma,
encourage to testify in legal proceedings, and facilitate the
ascertainment of truth.

EVIDENCE MIDTERMS
ALEX RABANES
Sec. 9 & 10

Differences between Interpreter and Facilitator

1) When needed

Interpreter is needed when the child does not understand the

language or is unable to communicate in the said languages.
On the other hand, a facilitator is needed when the child is
unable to understand or respond to questions asked
themselves.

2) As to qualifications

Interpreter’s qualification is linguistic whereas in facilitator, it

must be special.

3) As to its duties
4)

Interpreter’s duty is to make a true and accurate interpretation

whereas a facilitator’s duty is to pose questions to the child
according to the meaning intended by the counsel.

Sec. 19 Mode of questioning

The court may allow the child witness to testify in a narrative

form.

Sec. 20 Leading questions

The court may allow leading questions.

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ALEX RABANES
TESTIMONIAL EVIDENCE
Disqualifications and Privileged Communications
MARITAL DISQUALIFICATION RULE
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 civil case by one against
the other, or in criminal case for a crime committed by
one against the other or the latter’s direct descendants or
ascendants.
The prohibition extends not only to a testimony adverse to the
spouse but also to a testimony in favor of the spouse.
Basis:
To preserve the marriage relations and promote domestic
peace.
A spouse testifying against each other creates an ugly sight
inimical to society’s interests. The rule prohibiting a testimony
in favor of the spouse is intended to discourage the
commission of perjury.
(US vs CONCEPCION)
To allow one to testify for or against the other would be to
subject him or her to great temptation to commit perjury and
to endanger the harmony and confidence of the marital
relation.
REASON FOR THE PRIVILEGE
1) Identity of interests
2) Consequent danger of perjury
3) Policy of the law to guard the security and
confidences of private life because its admission
would lead to domestic disunion and unhappiness
Where want of domestic tranquility exists, there is danger of
punishing one spouse through the hostile testimony of the
other. (PEOPLE vs FRANCISCO)
Applicability:
1) Spouses must be legally married
The rule does not cover illicit cohabitation. The rule applies
whether the witness-spouse is a party to the case or not but
the other spouse must be a party.
2) Prohibited testimony is one that is given or offered
during the existence of the marriage
It does not prohibit a testimony for or against the other after
the marriage is dissolved. When the marriage is dissolved, the
rule can no longer be invoked and the spouse can now testify
against the other despite the objection interposed by the
affected spouse.
The testimony should be offered during the marriage.
Everything should be confined within the marital relations.
The rule may be invoked with respect to testimony on any fact.
It is immaterial whether such matters were known by the other
spouse before or after the marriage.
Waived by failure to object
The objection to the competency of the spouse must be made
when he or she is first offered as a witness.
The testimony prohibited is only over the objection of the
affected spouse or the spouse against whom the testimony is
offered.
Hence, the testimony is admissible where no objection is
interposed by the spouse who has the right to invoke the
prohibition.
(STATE vs BRAMLET)
The testimony covered by the marital disqualification rule not
only consists of utterances but also the production of
documents.
*By employing his spouse as his own witness, he already
waived the rule himself. He cannot object later on if his
opponent cross-examines his spouse.
GENERAL RULE: Neither the husband nor the wife may
testify against the other without the consent of the affected
spouse.
OLD RULE: A wife cannot testify against her
husband without his consent even if the husband is
accused of killing her child. (PEOPLE vs
NATIVIDAD)
NEW RULE: The wife is now allowed to testify
against her husband for raping her daughter.
(ORDOÑO vs DAGUIGAN)
The better rule is that, when an offense directly attack or
directly and vitally impairs, the conjugal relation, it comes
within the exception to the statute that one shall not be a
witness against the other except in a criminal prosecution for
a crime committed by one against the other.
EXCEPTIONS:
1) Civil case (must be one against the other)
In order for the spouse to be allowed to testify against the
other in a civil case, the case must be a civil case by one
against the other.
Where the civil case is between a spouse and the direct
descendants or ascendants of the other, the marital
disqualification rule still applies.
2) Criminal case (one against the other or latter’s
descendants or ascendants)
In a criminal case, the privilege of one to testify against the
other is not confined to crimes committed by one against the
other, but also covers crimes committed by one against the
direct descendants or ascendants of the latter.
However, crimes committed against a spouse’s collateral
relatives (uncles, aunts, cousins) are not covered by the
exception.
In the Cargill case, it can be concluded that in the law of
evidence the rape perpetrated by the father against his
daughter is a crime committed by him against his wife.
3) Falsification of wife’s signature by husband
(PEOPLE vs CASTANEDA)
Husband who allegedly forged the signature of his wife in a
deed of sale making it appear that the latter gave her marital
consent to the sale of a house and lot belonging to their
conjugal partnership when in fact and in truth she did not may
be considered as a criminal case for a crime committed by a
husband against his wife.
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ALEX RABANES
To espouse the contrary view would spawn the dangerous
precedent of a husband committing as many falsifications
against his wife as he could conjure, seeking shelter in the
anti-marital privilege as a license to injure and prejudice her in
secret all with unabashed and complete impunity.
4) Arson case
(ALVAREZ vs RAMIREZ)
Where the marital and domestic relations are so strained that
there is no more harmony to be preserved nor peace and
tranquility which may be disturbed, the reason based upon
such harmony and tranquility fails.
The criminal act of arson complained had the effect of directly
and vitally impairing the conjugal relations.
It underscored the fact that the marital and domestic relations
between her and the accused-husband have become so
strained that there is no more harmony, peace or tranquility to
be preserved.
Thus, there is no longer any reason to apply the Marital
Disqualification Rule.
SURVIVORSHIP DISQUALIFICATION RULE OR
DEAD MAN’S STATUTE
SECTION 23. Disqualification by reason of death or
insanity of adverse party.
Parties or assignor of parties to a case, or persons in
whose behalf a case is prosecuted, against an executor
or administrator or other representative of a deceased
person, or against a person of unsound mind, upon a
claim or demand against the estate of such deceased
person or against such person of unsound mind, cannot
testify as to any matter of fact occurring before death of
such deceased person or before such person became of
unsound mind.
The rule is one that does not protect the survivor even at the
risk of not paying a just and valid claim because it is the
survivor who has the stronger reason to file a false claim.
OBJECT OF THE RULE
To guard against the temptation to give false testimony in
regard to the transaction on the part of the surviving party and
thereby put the parties upon equal terms.
Its purpose is to close the lips of the plaintiff when death has
closed the lips of the defendant, in order to remove the
temptation to do falsehood and the possibility of fictitious claim
against the deceased. (TAN vs CA)
Simplifying the rule:
1) What is the nature of the case under
consideration?
This rule applies only to a civil case or a special proceeding.
Does not apply to criminal and administrative cases.
2) What is the cause of action?
A claim against the estate of the deceased or insane person.
Again, the rule does not apply when the action brought is not
against but for the benefit of the estate. It has to be a claim
against the estate.
3) Who is the defendant?
The possible defendants are the following:
a) Executor or administrator of the estate of the
deceased
b) Other representatives (heirs where there is no
executor or administrator)
c) Person of unsound mind himself
With regard to a guardian appointed for the incompetent
persons, it is submitted that there is no reason not to apply the
rule to situations where it is the guardian of an insane person
who brought to court for the purpose of satisfying a claim out
of his estate.
The representative has no way of confirming the veracity of
the claim, except for what the creditor-survivor tells him.
d) Who is the plaintiff?
The person who has a claim against the estate of the
deceased or person of unsound mind.
The rule will not apply where the executor or administrator is
the plaintiff.
e) What is the proposed testimony all about?
In order for the rule to apply, the testimony proposed must be
of the plaintiff-witness or his privies which, by such testimony
alone and uncorroborated by any other evidence, would tend
to establish a claim against the deceased or insane person.
It must be a matter of fact occurring BEFORE the death of
such deceased person or before such person became of
unsound mind.
If FAVORABLE to the estate of the deceased = NOT
PROHIBITED
If ADVERSE = PROHIBITED
When is the rule inapplicable?
1) Matters occurring after such person died or became
of unsound mind are admissible.
2) Testimony favorable to the estate is not barred since
the rule is designed to protect the interest of the
estate of the deceased or insane person.
GENERAL RULE: (testimony not admissible)
The Dead Man’s Statute bars a testimony as to any matter of
fact occurring before the death of the deceased person or
before such person became of unsound mind.
EXCEPTIONS: (testimony may be admissible)
1) When the plaintiff is the executor, administrator or
legal representatives of the deceased, the defendant
is free to testify against the plaintiff.
When there are counterclaims against the survivor.
(SUNGA-CHAN vs CHUA)
Well entrenched is the rule that when it is the executor or
administrator or representatives of the estate that sets up the
counterclaim, the plaintiff, may be allowed to testify the
occurrences before the death of the deceased to defeat the
counterclaim.
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ALEX RABANES
 2) When the plaintiff is a corporation, the officers or
stockholders thereof are not disqualified.
Dead Man’s Statute vs Marital Disqualification Rule
3) Ordinary witnesses who are not the plaintiff.
The Dead Man’s Statute does not operate to close the mouth
of a witness as to any matter of fact coming to his knowledge
in any other way than through personal dealings with the
deceased person, or communication made by the deceased
to the witness.
DISTINCTIONS
1) In DMS, only a partial disqualification as the witness
is not completely disqualified but is only prohibited
from testifying on the matter therein specified.
Whereas in MDR, there is a complete and absolute
disqualification.

NOTE: Only unwitnessed conversations or events with the
decedent are disqualified under the Dead Man’s Statute.
4) When there is an imputation of fraud against the
deceased, the plaintiff is not barred from testifying to
such fraud.
Dead Man’s Statute vs Parol Evidence Rule
5) When the defendant, though heirs of the deceased,
are sued in their PERSONAL and INDIVIDUAL
CAPACITIES, the plaintiff may testify against them.
6) When the survivor’s testimony refers to a negative
fact
2) DMS applies only to a civil case or special
proceeding over the estate of the deceased or insane
person.
Whereas in MDR, applies to civil and criminal cases.
1) Both Rules may entail a situation where certain
evidence cannot be offered due to the death of a
person.
2) DMS prohibits testimony that tends to establish a
claim against the estate of a deceased person.

7) When the survivor’s testimony is favorable to the Whereas, PER prohibits testimony that tends to add
deceased to or modify testamentary dispositions.

8) The adverse party is competent to testify to 3) DMS may be invoked only by the defendant
transactions or communications with the deceased (executor or administrator).
or incompetent persons which were made with an
AGENT of such person in cases in which the agent Whereas, PER may be invoked by the parties to an
is still alive and competent to testify. agreement.

But the testimony must be confined only to those
transactions or communications which were had with
the agent.
9) Land registration cases and cadastral cases
10) Opening doors exception or Waiver Exception
It is when the party of the deceased opens the door by
introducing a testimony or a deposition concerning
conversations and/or events in the presence of the deceased
person.
Both may be invoke at the same time.
SIMPLIFIED DEAD MAN’S STATUTE
SECTION 23. A party to an alleged transaction and his
successors in interest are precluded from testifying
against the representative of the other party who had died
or had become insane if such testimony is offered in a
case which tends to establish a civil claim against the
estate of the deceased or the insane party.

11) Foundation testimony exception

It is when the claim of the plaintiff and the testimony of his

witnesses are based on a contract or document, and not on
dealings and communications with the deceased. Thus, the
testimony is admissible.

12) If the testimony to be introduced relates to any fact

relating to the heirship of the decedent.

WAIVER OF THE RULE

a) Not objecting to the testimony prohibited

b) Cross-examining the plaintiff
c) Calling witnesses to testify
d) Plaintiff’s deposition is taken by the representative of
the estate
e) Offering evidence to rebut the prohibited testimony

EVIDENCE MIDTERMS
ALEX RABANES
 PRIVILEGED COMMUNICATIONS
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 their
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
Marital Privileged Communication Rule
Under this rule, legitimate spouses cannot testify as to matters
learned in confidence from the other.
The husband or the wife cannot be compelled to testify,
without the consent of the other, about any communication
received in confidence by one from the other during the
marriage.
Requisites:
1) There must be a valid marriage between the
husband and wife
2) Communication is made in confidence by one to the
other
3) Confidential communication must have been during
the marriage
Postulates relating to the MPCR:
1) Every communication between spouses is presumed
to be confidential.
2) Communication made in the presence of the third
parties are not confidential, unless third person is an
agent of the spouses.
3) Communications overheard or come into the
possession by third persons remain confidential as
between the spouses, but the third person may be
called to testify.
4) If the third person acquired knowledge of the
communication by COLLUSION and VOLUNTARY
DISCLOSURE on the part of either of the spouses,
he becomes an agent thus the privilege is claimable
against him.
5) Communications intended for transmission to third
persons are not confidential.
WAIVER:
The MPCR may be waived by the failure of the claimant to
object timely to its presentation or by any conduct that may be
construed as implied consent. (LACUROM vs JACOBA)
(ex. act of a cross-examination)
DISTINCTION BETWEEN MARITAL DISQUALIFICATION
RULE AND MARITAL PRIVILEGED COMMUNICATION
RULE
Similarities:
1) On the requirement of valid matrimony, both rules
apply only when the spouses are legally married.
Thus, common law relationships are not covered.
2) As to its exceptions, both rules do not apply 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.
3) As to the effects of consent, both rules are
inapplicable where the affected spouses consents to
the testimony.
Distinctions:
1) As to whether one of the spouses must be a party to
the action, MDR can be invoked only if one of the
spouses is a party to the action.
Whereas, in MPCR, it can be claimed whether or not
the spouse is a party to the action.
2) As to applicability in case marriage is dissolved,
MDR applies only if the marriage is existing at the
time the testimony is offered.
Whereas, MPCR can be claimed even after the
marriage has been dissolved.
3) As to the extent of prohibition, MDR constitutes a
TOTAL prohibition against the spouse from
testifying.
Whereas in MPCR, it applies only to
CONFIDENTIAL COMMUNICATIONS between the
spouses.
4) As to the effect of death of either spouses, MDR
ceases upon the death of either spouse.
Whereas in MPCR, it continues even after the
termination of the marriage by death or other causes.
5) As to the extent of refusal to testify, in MDR, the
prohibition bars testimony for or against the other.
Thus, a spouse may refuse to take the witness stand
altogether.
Whereas in MPCR, the prohibition bars the
examination of a spouse as to matters related in
confidence to the other spouse.
Thus, a spouse may refuse to answer questions on
prohibited matters only.
The privilege can still be invoked and their minor children is
not allowed to testify even if they heard the confession
because they are minors. They are only allowed if it is
voluntary.
NOTE: The prerogative to object to a confidential
communication between spouses is vested upon the spouses
themselves, particularly the communicating spouses, not a
third person.
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ALEX RABANES
 b) An attorney cannot, without the consent of his
client be examined as to any communication
made by the client to him, or his advice given
thereon in the course of, or with a view to,
professional employment, nor can an attorney’s
secretary, stenographer, or clerk be examined,
without the consent of the client and his
employer, concerning any fact the knowledge of
which has been acquired in such capacity.
ATTORNEY-CLIENT PRIVILEGE COMMUNICATION RULE
This privilege is a legal concept that protects communications
between a client and his or her attorney and keep those
communications confidential.
By assuring confidentiality, the privilege encourages clients to
make full and frank disclosures to their attorneys, who are
then better able to provide candid advice and effective
representation.
Five requirements (REGALA vs SANDIGANBAYAN)
1) The person asserting the privilege must be a client,
or must have sought to become a client at the time
of disclosure
2) The person connected to the communication must
be acting as a lawyer
3) The communication must be between the lawyer and
the client exclusively. No non-clients may be
included in the communication.
4) The communication must be for the purpose of
securing a legal opinion, legal services, or
assistance in some legal proceeding, and not for the
purpose of committing a crime
5) The privilege may be claimed or waived by the client
only.
Existence of Attorney-Client Relationship
The present rules do not require a perfected attorney-client
relationship for the privilege to exist.
The communications between the attorney and the client no
longer need to be in the course of an actual professional
employment. It is enough that the communication or advice be
“with a view to” professional employment.
The privilege is extended to communications made for the
purpose of securing the services of counsel even if the
counsel later the professional relationship.
The privilege also includes preliminary negotiations.
Matters disclosed by a prospective client to a lawyer are
protected by the rule on privileged communication even if the
prospective client does not retain the lawyer or the latter
declines the employment.
REASON: To make to client discuss freely without fear that
what he tells will be divulged or used against him and for the
lawyer to freely obtain information from the client.
The Client Made The Communication In Confidence
The mere relation of attorney and client does not raise a
presumption of confidentiality. The client must intend the
communication to be confidential. (MERCADO vs VITRIOLO)
Non-privileged communications:
1) Compromise agreement
2) Offer and counter-offer for settlement
3) Document given to lawyer not in his professional
capacity
Forms of communication covered
The privilege is not confined to verbal or written
communications made by the client to his attorney but extends
as well to information communicated by the client to the
attorney by other means.
Thus, the communication may be oral or written. It may also
extend to other forms of conduct like physical demonstrations
as long as they are intended to be confidential.
Does the privilege preclude inquiries into the fact that the
lawyer was consulted?
GR: The attorney-client privilege may not be invoked to refuse
to divulge the identity or name of the client.
Under the “LAST LINK DOCTRINE” non-privileged
information such as identity is protected if the revelation of
such information would necessarily reveal privileged
information.
(REGALA vs SANDIGANBAYAN)
Reasons for the general rule:
1st: The Court has the right to know that the client whose
privileged information is sought to be protected is
FLESH and BLOOD
2nd: The privilege begins to exists only after the attorney-
client relationship has been established. The
privilege does not attach until there is a client.
3rd: The privilege generally pertains to the subject matter
of the relationship.
4th: Due process considerations require that the
opposing party should know his adversary.
EXN:
a) When a strong probability exists that revealing the
name would implicate that person in the very same
activity for which he sought the lawyer’s advice
b) When disclosure would open the client to liability
c) When the name would furnish the only link that would
form the chain of testimony necessary to convict.
Work-Product Doctrine
- Protects materials prepared in anticipation of
litigation from discovery by opposing counsel.
Thus, during the discovery stage, oral and written statements
made by witnesses to a defendant’s attorney cannot be
produced as it is considered work-product.
The notes, memoranda, and writings made by the counsel in
pursuance of his professional duty, form part of his private and
confidential files in the cases handled by him. Hence,
privileged.
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ALEX RABANES
The attorney must have been acting in his professional
capacity
- If a client shared information to his lawyer on matters
of which they had personal, as distinct from
professional knowledge, the information is not
covered by the attorney-client privilege.
Derivative Privilege
Those made to the attorney’s secretary, clerk or stenographer
from transmission to the attorney for the purpose of the
professional relationship or with a view to such relationship or
the knowledge acquired by such employees in such capacity
are covered by the privilege.
Thus, they cannot be examined without the consent of the
client.
Lawyer may break the privilege in defense
An attorney, may, in his own defense, break the privilege if it
would relieve him or accusations or wrongdoing.
Waiver of the privilege
- The privilege is solely at the client’s discretion
however he may waive it.
a) If the client is examined about his communication to
his lawyer and he reveals the same
b) Client does not object or fails to object to his
attorney’s testimony on the privileged matters
GR: The protection of the privilege will survive the death
of the client.
EXN: When there is an attack on the validity of the will,
communications made to the attorney on the drawing
of the will, while confidential during the lifetime of the
client are not intended to require secrecy after his
death.
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,
and which would blacken the reputation of the
patient.
PHYSICIAN-PATIENT PRIVILEGE
This rule is intended to facilitate and make safe full and
confidential disclosure by the patient to the physician of all
facts, circumstances and symptoms.
To encourage the patient to freely disclose all the matters
which may aid in the diagnosis or in the treatment of a disease
or injury.
Waiver
It may be waived if no timely objection is made to the
physician’s testimony.
Requisites for the privilege to be claimed: (LIM vs CA)
1) The privilege is claimed in a CIVIL CASE
Applies to a civil case, whether the patient is a party or not.
The privilege cannot be claimed in a criminal case because
the interest of the public should be deemed more important
that the secrecy of the communication.
2) The physician must be duly authorized to practice
medicine, surgery or obstetrics
3) Such person acquired the information while he was
attending to the patient in his PROFESSIONAL
CAPACITY
Must be acting in his professional capacity when he attends
the patient for CURATIVE, PREVENTIVE, or PALLIATIVE
treatment.
Thus, only disclosures which would have been made to the
physician to enable him safely and efficaciously to treat his
patient are covered by the privilege.
Cases where the privileged does not apply:
- Results of autopsies (because not intended for
treatment)
- To shield the commission of a crime or the purpose
is to obtain narcotics or prohibited drugs
- Where the purpose is to ask the physician to have
one’s appearance disguised by cosmetic or plastic
surgery to escape apprehension
All of these are outside the operation of the privilege because
the purpose is not for treatment or prevention of any disease
or injury.
The rule does not require that the relationship between the
physician and the patient be a result of a contractual
relationship like one initiated by the patient’s voluntary act.
4) The information was necessary to enable him to act
in that capacity
It is the tenor only of the communication that is privileged. The
mere fact of making a communication, as well as the date of
a consultation and the number of consultations, are therefore
not privileged from disclosure, so long as the subject
communicated is not stated.
5) Information was confidential and if disclosed would
blacken the reputation of the patient.
Survives the death of the patient
- Death does not permit the living to impair the
deceased’s name by disclosing communications
held confidential by law.
The privilege is inapplicable if:
a) Communication not given in confidence
b) It is irrelevant to the professional employment
c) Made for an unlawful purpose
d) Information was made to be public
e) There was a waiver of the privilege either by
provisions of contract or law
Expert witness
- The physician may give expert opinion testimony in
response to a strictly hypothetical question, where
his opinion is based strictly upon the hypothetical
facts
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ALEX RABANES
Privilege applies also to medical records
(CHAN vs CHAN)
Disclosing the records would be equivalent of compelling the
physician to testify on privileged matters he gained while
dealing with the patient, without the latter’s prior consent.
Thus, the same would be inadmissible as these records are
also privileged.
d) A minister or priest cannot, without the consent
of the person making the confession, be
examined as to any confession made to or any
advice given by him in his professional character
in the course of discipline enjoined by the church
to which the minister or priest belongs.
PRIEST-PENITENT PRIVILEGE
- Also known as the clergy privilege
It is an application of the principle of privileged communication
that protects the contents of communications between a
member of the clergy and a penitent, who shares information
in confidence.
Communications are made by a person to a priest, rabbi,
cleric or minister in the course of confession.
The communications to the clergy must be made while the
clergy members are acting in the professional capacity of a
spiritual adviser and with the purpose of dispensing religious
counsel, advice, solace or absolution.
Professional capacity
Not every communication made to a minister or priest is
privileged. The communication must be made pursuant to
confession of sins.
The advice given as a result of the confession must be made
in the minister’s professional character or in his spiritual
capacity.
If the penitent discussed business arrangements with the
priest, the privilege does not apply.
e) A public officer cannot be examined during his
terms of office or afterwards, as to
communications made to him in official
confidence, when the court finds that the public
interest would suffer by the disclosure.
PUBLIC OFFICER’S PRIVILEGE or PRIVILEGE OF STATE
SECRETS
Requisites:
1) It was made to the public officer in official confidence
2) Public interest would suffer by the disclosure of the
communication
Where no public interest would be prejudiced, the
rule does not apply.
The privilege is intended not for the protection of public
officers but for the protection of public interest.
The disclosure or non-disclosure is not dependent on the will
of the officer but on the determination by a competent court
(preliminary determination).
The privilege may be invoked not only during the term of office
of the public officer but also after such term.
Public officers covered
The privilege only applies to such officers who have the
responsibility or duty to investigate or to prevent public
wrongs, and not to officials in general.
The court, not the witness, will determine the necessity of
regarding the communication as privileged.
Not applicable if what is asked is:
1) Useful evidence to vindicate the innocence of an
accused (WHY? It amounts to suppression)
2) Lessens the risk of false testimony
3) Is essential to the proper disposition of the litigation
4) The benefit to be gained by a correct disposition of
the litigation was greater than any injury which could
inure to the relation by a disclosure of the information
Executive privilege
- Certain types of information like military, diplomatic,
and other national security matters may be withheld
from the public.
(CHAVEZ vs PEA)
The right to information does not extend to matters recognized
as privileged information under the separation of powers.
The right does not also apply to information on military and
diplomatic secrets, information affecting national security, and
information on investigations of crimes by law enforcement
agencies before the prosecution of the accused, which courts
have long recognized as confidential.
Privileged communications under the rules on electronic
device
The confidential character of a privileged communication is
not lost solely on the ground that it is in the form of an
electronic document.
Other privileged matters:
a) Editors may not be compelled to disclose the source
of published news (Newman’s Privilege)
b) Voters may not be compelled to disclose for whom
they voted (Political Vote Privilege)
c) Information contained in tax census returns
d) Bank deposits
GR: All deposits of whatever nature with banks or banking
institutions in the PH including investments in bonds by the
government are considered as an ABSOLUTELY
CONFIDENTIAL in nature and may not be examined, inquired
or looked into by any person, government official, bureau or
office
EXN:
1) Upon written permission of the depositor
2) In cases of impeachment
3) Upon order of a competent court in cases of bribery
or dereliction of duty of public officials
4) In cases where the money deposited or invested is
the subject matter of the litigation
EVIDENCE MIDTERMS
ALEX RABANES
However, it has been qualified in Human Security Act of 2007.

Any police or law enforcement office are duly authorized in

writing to examine and gather relevant information about the
deposits and other accounts of the following persons:

i. Person charged with or suspected of the crime of

terrorism or conspiracy to commit terrorism
ii. Judicially declared and outlawed terrorist
organization, association, or group of persons
iii. Member of such judicially declared and outlawed
organization

Also, in AMLC.

e) Trade secrets

(AIRPHIL CORP vs PENNSWELL)

The chemical composition, formulation, and ingredients of
respondent’s special lubricants are trade secrets within the
contemplation of the law.

The ingredients constitute the very fabric of respondent’s

production and business. No doubt, the information is also
valuable to respondent’s competitors. To compel its
disclosure is to cripple respondent’s business and to place it
at an undue disadvantage.

f) All information and statements made at conciliation

proceedings

g) Mediation and arbitration proceedings

h) Informer’s privilege

i) Data privacy act of 2012

j) Child witnesses

SECTION 25. Parental and filial privilege.

No person may be compelled to testify against his

parents, other direct ascendants, children or other direct
descendants.

PARENTAL AND FILIAL PRIVILEGE

A person may testify against his parents or children

VOLUNTARILY but if he refuses to do so, the rule protects
him from any compulsion.

Relatives who may be compelled to testify:

1) Relative by affinity
2) Brother and sisters
3) Aunts, uncles, nephews, nieces
4) Cousins of whatever degree
5) Other collateral relatives

Privilege extends to adoptive filiation

Adoptive relationships are covered by the rule but only insofar

as the adoptive parent and adopted child is concerned.

It does not extend to the direct ascendants of the adopter

because the adoptive relation is between the adopter and the
adopted only.

EVIDENCE MIDTERMS
ALEX RABANES