EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
June 21, 2018 (Alexander Abonado)
RULE 128
GENERAL PROVISIONS
Rule 128 Section 1 of the Rules of Court defines what evidence is. It
states evidence is the means sanctioned by these rules of
ascertaining in a judicial proceeding the truth respecting a matter of
fact.
Section 1. Evidence defined. Evidence is the means
sanctioned by these rules of ascertaining in a judicial
proceeding the truth respecting a matter of fact.
When the law defines a particular term, it simply means that it
transforms it into a technical term that is susceptible of no other
definition than that which the law provides.
So if you are asked in the Bar: “define evidence.”
You are not allowed to use your own words. You are not allowed to
substitute a statutory definition with a mere doctrinal definition
that you might have read somewhere.
So that is the first thing you have to remember about rule 128
section 1.
So for purposes of greater or easier understanding, himay-himayon
nato ang provision.
Evidence is the means – when you say means it is a methodology. It
is the manner of doing something. It is a mechanism.
When you say means, it means as well that there is an end. There is
an end to be achieved by the use of evidence.
Evidence is the means sanctioned – meaning allowed, permitted,
prescribed - by the rules – and what rules are we talking about? –
The rules of court.
But when we say sanctioned by the rules, it does not necessarily
mean that the rules of court, specifically rules 128 – 133 are the sole
repositories of the rules of evidence because scattered in the law are
evidentiary rules and principles. Dili lang tanan evidentiary rules
makita nimo sa rules of evidence.
Unsa may example, let’s go back to 1st year – obligations and
contracts, article 1403, no. 2 of the civil code is the statute of frauds.
Which tells you that a contract has to be in a certain form in order
for it to be enforceable. To be able to prove it in court. But it is not a
limitation to the validity of the contracts between the contracting
parties for the simple reason that contracts generally are perfected
by mere consent.
Consent is manifested by the making of the offer and the acceptance
upon the thing and the cause which are constituted between the
parties.
So when the statute of frauds tells you that a contract has to be in
writing in order for it to be enforceable, it does not affect validity. It
simply affects its provability – your ability to sue upon such a
contract in court in case there is breach.
Political law – consti – bill of rights. Fruit of the poisonous tree
doctrine. Is it not a fact that under article 3, you are given 2 rights
that are very important; for example, like right of the people against
unreasonable searches and seizures. What follows that would be the
right to privacy of communication and correspondence.
Now what would be the effect if evidence, proof is obtained in
violation of such rights provided under the bill of rights?
They are inadmissible for any purpose in any proceeding. And when
you talk about inadmissibility, you are actually talking about
evidence. What are you allowed and what are you not allowed to
present to bring to court.
Unsay pwede nimo i-prove? Unsay pud ang dili nimo i-prove.
Criminal law. You recall any evidentiary rule that requires specific
proof?
Treason. How do you prove treason? Or at least, how many
witnesses are needed in order to prove that a person committed
treason? – 2 witness rule in treason.
Now, Evidence is the means sanctioned by these rules of
ascertaining – it’s a means of ascertainment therefore.
Para mabal-an ang mga pamaagi sa pagkahibalo. Means of
ascertainment.
To ascertain in a judicial proceedings – there are a lot of
proceedings diba?
Naay judicial, naay mga quasi-judicial. There are legislative
proceedings as well. So it hints to you that the rules of evidence are
primarily applicable in judicial proceedings only. In courts.
And how do we define a court?
A court is that entity that is invested with a portion of the judicial
power.
Sir, what about a labor arbiter? Isn’t that a fact that you can file a
case against the Labor arbiter? Isn’t that a fact that you can file a
complaint before a barangay, lupong tagapamaya? HLURB?
Do we not apply the rules of evidence before these so-called
tribunals which are non-judicial in character?
We apply but only in a suppletory character.
So for judicial proceedings, the rules of evidence are uniform and
the same. But with respect to non-judicial proceedings, the technical
rules of evidence are not strictly applied except in a suppletory
character.
Are there certain types of cases in Phil. law that you don’t also
follow the rule on evidence even if the cases are filed before the
regular courts? Naa ba certain cases filed before the court and yet
you don’t normally prove it in the same way that you prove an
ordinary court case.
Civil case, for example, what do you prove? – the elements of your
cause of action. Right, obligation, violation, damage.
In a criminal case – you need to prove the elements of an offense, if
you are the prosecution.
How do they prove their cases? – follow the rules on evidence,
specifically rule 130 and rule 132 (evidence in trial) so that’s how
you apply them.
Pero naay exceptions. Naay certain cases where the manner of proof
is different. The manner of proof is unlike the usual manner of proof
that you usually employ in ordinary court cases.
For example, small claims cases.
Kinanglan pa ba in small claims cases that you go to court, present a
witness, there has to be lawyer?
In small claims cases, walay ing-ana. You don’t present evidence the
same way that you present evidence in ordinary cases.
What else? Rule in the presentation of child witnesses. The child
witness rule. Where a lot of things that happen in the examination,
the presentation of ordinary witnesses are not applicable. We will go
to that when we reach rule 130 witnesses and their qualifications; of
testimonial witness.
So Evidence is the means sanctioned by these rules of ascertaining
in a judicial proceeding the truth respecting a matter of fact
Adto sa ta sa fact.
What are the types of fact under the law?
In the law on pleadings, what are the types of fact? You have:
1. Factum probandum (ultimate fact) – they are in the form
of legal conclusions or factual conlcusions. And because
you haven’t proven them yet, they are necessarily
hypothetical in nature.
So there is a hypothesis that you are trying to advance before the
court, which can only be proven by what we call by factum probans
or evidentiary facts
2. Factum probans (evidentiary facts) – will be the facts that
are referred to under rule 128 section 1.
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Now one word in rule 128 section 1, that defines evidence puts me
off a little bit. It’s misplaced. What word is that? – Truth.
Truth in a legal document, do support itself.
Kanus-a pa nako na last nakita kanang word nga truth in a legal
document? – The 1987 constitution, preamble. Which we know is
not a source of any right.
Just imagine truth being uttered in the same breath as love. In a
legal document. These ideals appear in the preamble because these
are ideals to strive for.
And so it makes me think when the framers of the rules of court,
decided to define evidence in that manner – to ascertain the truth
respecting a matter of fact – they are talking about the truth in its
idealized form.
Kay ngano?
That the rules of evidence is not really a means to ascertain the truth
but rather mastering the rules of evidence will enable you to
disregard the truth.
(Example ni Sir; Meet Me in St. Gallen; mga wala kita, one-half sa
kinabuhi mawala)
Guy caught possessing shabu after being frisked by police officers.
Making him possessor of illegal substance, violative of the
comprehensive drugs act.
What’s the truth in that situation? That guy caught possessing
shabu.
But he takes the best lawyer available, mastered the rules of
evidence, etc. and sets the guy free. Because that is the product of an
illegal search. Therefore fruit of the poisonous tree.
So what’s the truth there?
Pusher. User. Possessor. – that’s the truth. But because of your
mastery of the rules of evidence, the truth is disregarded.
That’s effect. It enables the legal practitioners and parties to a case
to disregard the truth whether you like it or not that’s the profession
you are seeking entry into.
“Where Truth, though might be sacred but you have to surround it
with a bodyguard of lies.” - Judge Emmanuel Carpio.
Vincit Omnia veritas. – Truth conquers all but with knowledge of
all, the truth can be conquered.
June 28, 2018 (Angel Deiparine)
(diri gyud nag start ang June 28 na recording. I think naputol ang
start, but part gihapon ni sa Section 1.)
Section 1. Evidence defined. — Evidence is the means, sanctioned
by these rules, of ascertaining in a judicial proceeding the truth
respecting a matter of fact.
The parties are actually encouraged to undergo stipulations,
admissions of facts. In fact, during pretrial conference in a criminal
case, the accused can make a confession. Maybe, pursuant to what
we have known to be PLEA BARGAINING AGREEMENTS.
O sige, akong angkunon ang akoang guilt but to a lesser offense,
provided, you will be lenient in giving me a sentence. I plead guilty
to a lesser offense, and maybe, for one, that falls within the ambit of
probation. So, probationable siya.
But what happens if the pretrial agreement that contains the
confession of the accused is unsigned? What will be the effect of
that?
Of course, unless reduced to writing and signed by him and his
counsel, such admission or confession that was made or entered
during the pretrial conference cannot be used in evidence against
the accused. We’ll go to that when we go to Admissions later on.
Even in a civil law, you have a lot of evidentiary principles.
it? How else does you go tell the breaching party to give you
what he contracted to give under the contract?
• Damages
There’s also a requirement of proof to certain classes for
damages. Sa mga nastudyante na nako under Torts and
Damages, you know that with respect to actual damages
there’s a requirement that it must be proven or
substantiated by proof of pecuniary loss.
Nabanggan imong sakyanan, imong gipaayo. What’s the
proof of pecuniary loss there? THE RECEIPT. No receipt,
no payment of actual damages.
But to other forms of damages: moral, exemplary,
nominal, temperate, liquidated… No proof of pecuniary
loss is actually required.
That is evidentiary in nature because it tells you what the
manner of proof is in order for you to be entitled to these
certain forms of damages.
• Res ipsa loquitor
That is evidentiary inasmuch as it creates a presumption.
In English, ‘the thing speaks for itself.’
It is illustrated in one of my favorite case in all the law. Sa
mga wala pa nako na estudyante, wala mo kabalo ani but
my favorite case in all of the law is Republic vs Luzon
Steevedoring, it’s so simple, it explains res ipsa loquitor
immediately.
Ani, BRIDGE. BARGE. BANGGA. Ka kinsang sala? Who’s
fault was it? The bridge? Impossible nga sa bridge,
because it is not a moving object. Dili mana ga lihok.
Stationary. So, res ipsa loquitor. Who is negligent? The
barge. It cannot be the bridge. That’s res ipsa loquitor. It
now raises a presumption that the defendant was
negligent because the facts are such that it cannot be
caused by anyone else.
Example:
You go to the hospital. You wanted to get an
appendectomy. But when you went home, you went home
with a vasectomy. Res ipsa loquitor. The thing speaks for
itself. Who’s negligent there? Alangan naman ikaw, you
have no control over the instrumentality that caused you
damage.
• Presumption of Negligence in vehicular accidents
Do you know that when you are found to be violating a
traffic ordinance at the time of an accident, you are
automatically presumed negligent.
Like, nakabangga ka, you weren’t wearing a seatbelt. Or,
nakabangga ka, wala kay lisensya. There’s a presumption
of negligence there even if you were quite careful.
And when there’s a presumption of law that applies, it
actually shifts the burden of evidence to the other party to
disprove. Because you are now presumed to be negligent,
the plaintiff does not even have to prove that you were
negligent. That’s the effect. Therefore, that’s evidentiary.
Nag motor ka, wala kay helmet. Negligence. You are
violating a traffic violation at the time of collision.
Nag helmet ka, wala kay motor. Aw, buang ka.
(HAHAHAHAHA FUNNY SI SIR!)
• Criminal Law- Presumptions Relating to
Discernment, An Exemption from Criminal
Liability
What’s the difference between a perpetrator below 9 years
of age at the time of the commission of the offense and a
perpetrator between the ages of 9-15 to be exempt from
criminal liability?
We know for a fact that if the perpetrator is below 9 years
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
What about a perpetrator below 9 years of age who acted
with discernment? Answer: It doesn’t matter if that kid
acted with discernment, because the law conclusively
presumes him to be incapable of discernment by reason of
immaturity. It doesn’t matter. You can’t even prove na he
acted with discernment.
In corollary, the case of Jarco Marketing vs Court of
Appeals, the Supreme Court said that a child below 9
years of age is incapable of contributory negligence. Those
are conclusively presumed facts.
In the same vein, a child below 9 years of age is incapable
of discernment, the same is incapable of contributory
negligence. Tell that to my son. *nag story siya about sa
iyang son nga naghatag sa iyang classmate ug 50 pesos
because gi dukol daw niya. Lack of discernment?
Bribery.
• Two-witness Rule in Treason
It’s the law that mandates the quantity of evidence you
need to present. Two witnesses attesting to the same overt
act that constitutes treason.
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.
Going back to Civil Procedure, Section 4, Rule 1 of the Rules of
Court, the Rules does not apply to election cases, land registration,
cadastral, naturalization and insolvency proceedings, and other
cases not herein provided for, except by analogy or in a suppletory
character and whenever practicable and convenient.
Remember, when you talk about practicability, it’s not the same as
practicality. Lahi na sila na terms.
When you say ‘practicable’, mabuhat ba siya? When you say
‘practical’, ang pangutana dra, sayon ra ba siya? There’s a big
difference between the two. Do not be misled or confused.
Now, just to correlate with the phrase ‘in a judicial proceeding’, this
means we use the law of Evidence in judicial proceedings as a
general rule. But when a proceeding is administrative or quasi-
judicial in nature, the Rules on Evidence are not strictly applied.
Now we need to recall what happens in labor cases, if an employee
files a complaint for illegal termination against the employer, and
you’re the lawyer. Do you expect to bring a witness in? Do you cross
examine witnesses before the labor arbiter in a case for illegal
dismissal? Answer: NO. The Rules of Evidence are not strictly
applied in labor tribunals.
In the case of Cathay Pacific vs NLRC, the Rules of Evidence
prevailing in courts of law or equity are not always controlling. It’s
not even necessary that affidavits and other documents presented
conform to the technical rules of evidence, as the court maintains a
liberal stance regarding procedural deficiencies in labor cases.
If that’s the case, unsa diay na diha? Atik atik na proceedings? In
Hornales(?) vs NLRC, the SC said labor proceedings are non-
litigious in character. The technicalities of law and procedure, and
the rules obtaining in the courts of law shall not strictly apply
thereto, and the hearing officer may avail himself of all reasonable
means to ascertain the facts of the case. It may be non-litigous, but
there is still that requirement of ascertaining the facts. There is still
that requirement of determining which party upon the merits is
entitled in the case.
According to the SC, as well, in the case of Kanlaon vs NLRC,
kana daw requirement of due process when it comes to labor
tribunals, for example, is satisfied, at the very least, when the
parties are given an opportunity to submit position papers.
Criminal vs. Civil Cases
In judicial proceedings, remember, it could either be criminal or
civil in nature.
So how do you distinguish between evidence in civil cases vs.
evidence in criminal cases.
1. In civil cases, the party having the burden of proof must
prove his claim by a PREPONDERANCE OF EVIDENCE,
offerer. In criminal cases, an offer of compromise by the
accused may be received in evidence as an implied
admission.
Let me give you an example of an implied admission, A raped B. B
sued A for rape. A, who raped B, offered marriage. That is
considered an implied admission of guilt because that is analogous
to an attempt to compromise. ‘Ayaw nlng ko file-i ug kaso, pakaslan
nlng tika’- that’s a compromise.
3. What else? In civil cases, the concept of presumption of
innocence does not apply. But constitutionally speaking,
the accused (in criminal cases) enjoys the presumption of
innocence under the 1987 Constitution.
4. We will learn later on that in Rule 131 that in civil cases,
the doctrine of equipoise or equiponderance of evidence
applies, but in criminal cases, technically speaking, there
is no such thing as equipoise.
Imagine that in a litigation, there is always that imaginary scale. An
imaginary scale of justice. Kana bitaw si Lady Justice nag gunit ug
timbangan. On one side, you have the receptacle for the plaintiff or
prosecution. On the other side, you have the receptacle for the
defendant or the accused.
Now, in the course of trial, mauna ug present ang evidence sa
plaintiff, diba? Plaintiff man gyud mauna. So every piece of evidence
that is credible and admissible, ginabutang na sa iyang receptacle.
So, sa sugod bug-at ang sa plaintiff. When the defendant’s turn
comes, he also puts in his receptacle his own evidence that is
credible and admissible. Finally, the court can now determine kung
kinsa mas bug-at. Kung kinsa mas bug-at, mao nay mudaog. But
what happens if they are equal. Even gyud siya. Who should win?
Answer: the defendant should win. Why? If the evidence of the two
parties are equally balance such as there is equipoise already, it
means that the party who bears the burden of proof initially has
failed to discharge that burden. Therefore, the defendant wins. That
is the doctrine of equipoise.
But in criminal cases, there is no equipoise. Ngano? Again, we go
back to that imaginary scale of justice. On one hand you have the
prosecution, on the other hand, you have the accused. Wala pa nag
sugod ang kaso, ing ana na ang scale (refers to imbalance scale,
leaning towards the accused). Why? Because he is entitled to the
presumption of innocence that can only be defeated by prosecution
by proof beyond reasonable doubt. So, in case of doubt, who wins
the case? The accused, regardless of whether he is the worst rapist
or the most damak na drug addict in the whole world, because of
that presumption of innocence.
5. Finally, in civil cases, there is no such thing as a
confession, whereas in criminal cases, the concept of
confession is perfectly applicable.
Take note that the Rules of Evidence is procedural in character
which means that they may be given retroactive effect, diba? Laws
shall have no retroactive effect, except those exceptions provided to
you by Maam Galas when you are in first year, including those rules
that are procedural in character.
If you recall the case of Velayo vs Shell, SC ruled that the law on
human relations, Articles 19 to 36 of the Civil Code beginning in
abuse of rights until prejudicial questions--- it can be given
retroactive effect precisely because it does not affect vested rights.
Naa sad ba vested rights in the Rules of Evidence? The answer is
NO. Any evidence inadmissible according to the laws in force, at the
time the action accrued, but admissible according to the laws in
force at the time of the trial, is receivable.
Let us suppose, at the time of the filing of the action, there’s a law
saying that it is inadmissible to present in court a cctv footage, why,
because it violates the right to privacy kanang mga cctv. So, gi file-
an gihapon ug kaso tong accused. But based on the law, at the time
when the action accrued, that’s supposed to be inadmissible in
evidence. But during the time the trial of the case was underway, the
law was repealed. Can the accused complain that before, the time of
the filing of the action, inadmissible na. Unya karon, ma present na?
He can complain, diba?
Proof vs. Evidence
Now, what’s the difference between proof and evidence?
There are subtle differences, except that these terms are often used
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Proof, therefore, is the probative effect of evidence. Evidence is
supposed to be considered as the means.
Let’s revisit Section 1, again.
Section 1. Evidence defined. — Evidence is the means,
sanctioned by these rules, of ascertaining in a judicial
proceeding the truth respecting a matter of fact.
Take note that under the law on pleadings, there are two types of
FACT:
Student: Today. June 28.
Sir: If I were to make a factum probandum based on what you said,
I would say, “A is obliged to pay B the amount of Php10,000 which
is due and demandable on a certain date.” Kung dili man gud due
and demandable, e di premature imong demand.
So, how do you prove that? That A is obliged to pay B Php10,000.
What is your factum probans?
Student2: A promissory note, sir.

1. Factum Probandum; Sir: Would there be any difference in your ability to prove factum
2. Factum Probans. probandum had there been no promissory note or any other
contract signed by A and B.
Factum Probandum or Ultimate Facts are principal,
determinate and constituted facts upon the existence of which the Answer: Oral testimony.
plaintiff’s cause of action rests.
6/28/2018 (Anton Maligad)
They do not refer to the details of probative matters or particulars of
evidence by which these material elements are to be established. Evidence in Civil Cases vs. Evidence in Criminal Cases
Under the law on pleadings, remember, only ultimate facts are to be
required to be stated. They consists in propositions still to be Civil Cases Criminal Cases
established. Therefore, ultimate facts are necessarily hypothetical. REQUIRED EVIDENCE
Preponderance of Evidence is Proof beyond reasonable doubt
Factum Probans or Evidentiary Facts/ Intermediate Facts required is required
are facts which are necessary for the determination of ultimate facts. OFFER OF COMPROMISE
An offer of compromise is not In criminal cases an offer of
They are premises upon which conclusion of ultimate facts are
an admission of any liability. compromise by the accused
based. They are brought forward as a reality to convince the tribunal
may be received in evidence as
that the factum probandum is also real.
an implied admission.
As law students, how do you answer exams? You use SYLLOGISMS,
by which, is supposed to bring forth a proposition; then state your Example: IMPLIED
ADMISSION OF GUILT
minor premise; major premise; and then, conclusion.

For example: Is the contention of plaintiff tenable? You A raped B. B offered marriage.
answer either yes or no. The contention of plaintiff is Don’t file a case against me
tenable or untenable. That is your conclusion. because I will marry you.

What is your premise? You have to state your minor That is considered as an
premise. The applicable law is your minor premise, right? implied admission of guilt,
Then, your major premise is how the law is applicable because that is analogous to an
based on the facts. Finally, you have the conclusion. So attempt to compromise.
you have these two premises, then you have the
conclusion. PRESUMPTION OF INNOCENCE

Asa didto ang factum probandum? Ug asa didto ang In civil cases, the concept of Concept of presumption of
factum probans? presumption of innocence innocence applies.
doesn’t apply.
Factum Probandum, katong giingon nimo na dili tenable. Constitutionally speaking the
That’s a conclusion; that’s a proposition. How do you accused enjoys the
prove a proposition? By placing premises. What’s your presumption of innocence
major premise? How the law is applied to the facts. under the 1987 Constitution.
Katong facts nato, mao na imong evidentiary. DOCTRINE OF EQUIPOISE
Doctrine of Equipoise applies Doctrine of Equipoise doesn’t
They are facts which are necessary for the determination of the exist in criminal law.
ultimate facts. They are premises upon which conclusions of The "equipoise doctrine" is the
ultimate facts are based. rule which states that when the
evidence of the prosecution and
They are brought forward as a reality to convince the tribunal the the defense are so
factum probandum is also real. evenly balanced the
appreciation of such evidence
Take note that under Rule 8, Section 1, every pleading shall calls for tilting of the scales in
contain in a methodical and logical form, a plain, concise and direct favor of the accused
statement of the ultimate facts on which the party pleading relies for
his claim or defense, as the case may be, omitting the statement of CONCEPT OF CONFESSION
mere evidentiary facts.
There is no concept of There is a concept of confession
confession.
Factum Probandum Factum Probans
Ultimate facts Evidentiary or intermediate
facts Take note that the Rules on Evidence are procedural in character,
Proposition still to be Material evidence in the which means that they may be given retroactive effect.
established proposition making factum
probandum merely GR: The law shall not have a retroactive effect.
hypothetical. It is already in
existence. XPN: Exceptions given by the Civil Code and includes procedural
It is the end to be achieved It is the means to achieve such laws.
end
Mao lang required under the You have to omit them when In corollary to that, are there vested rights in Rules of Evidence?
law in pleadings you file your pleadings NO

Supreme Court ruled that as to the law on Human Relations (Article

Take note that every evidentiary question involves the relationship 19-36 of the Civil Code) couldn’t be given retroactive effect because
between the factum probandum and the factum probans. there are vested rights.
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Example: Let us suppose that at the time of the filing of the action
there is a law that states that it is inadmissible to present in court
CCTV footage. Because according to the law the CCTV footage
violates the rights of privacy.
So, a case was still filed against the accused.
But during the time of the trial of the case the law was repealed. Can
the accused complain?
Student: Oral Testimony (Testimonial Evidence)
Atty. E: Precisely. There has to be some connection or some relation
between your factum probans with the proposition that you want to
prove which is your factum probandum.
So for example, your factum probandum is: A killed B. Your factum
probans is a picture taken during the wedding of B and C. What is
the connection?

NO, he cannot complain. The evidence shall be presented in court.
“Proof and Evidence are not the same, though they are
usually used interchangeably”
Proof—is the effect when the requisite quantum of evidence of a
particular fact has been duly admitted; Proof is the probative effect
of evidence.
In other words, the relationship between factum probandum and
factum probans is what you call relevancy.
The relationship must be in some way that would describe the
factum probans as advancing the proposition that is factum
probandum.
Question of Fact vs. Question of Law:

Evidence—is the mode or manner of presenting facts in a judicial Callo vs. Chief of National Police (Nov 21, 2002) [look for
proceeding. Evidence is the means. case]

Rule 128; Section 1: Evidence is the means sanctioned by these
rules of ascertaining in a judicial proceeding the truth respecting a
matter of fact.
Two Types of Fact under the Law on Pleadings:
There is a question of fact when doubt or difference arises as to
truth of facts
There is a question of law as to what is the law is as to certain facts

Factum Probandum
(Ultimate Facts)—
Principal, determinate, and
constitutive facts upon the
existence of which the plaintiff’s
cause of action rests.
They do not refer to the details
of probative matters or
particulars of evidence by which
these are evidence are to be
established.
Proposition, which is still to be
established.
Under the law on pleadings,
only ultimate facts are to be
stated omitting the evidentiary
facts.
They consist in oppositions still
to be established and are
therefore hypothetical.
Factcum Probans Atty. E: Is it illegal to smoke by the road outside the school? It is.
(Evidentiary Facts)— That is a question of law, because the issue can be answered solely
by what the law says.
Facts, which are necessary for
the determination of ultimate But if the question is:
facts.
Is A liable for violating the law for smoking in public places?
They are premises by which the
conclusions of ultimate facts are That is a questions of fact, because you need to prove it with certain
based. facts.
Material evidencing the Example:
proposition which is
hypothetical. Assume that there is a law that would mandate that people below 5
feet 4 inches tall should be given free Php 5,000,000.00 each.
They are brought forward as a
So, I’ll be given Php 5,000,000.00 free because I am below 5 feet 4
reality in order to convince the
inches.
tribunal that a factum
probandum is ___? But, in determining whether or not the person is qualified to receive
the Php5m what is it?
It is a question of fact.
But to determine that the standard of who is qualified to receive the
Php5m.

“It is the end of which”

That is a question of law, because it wasn’t applied to a factual

situation—it was just the law.
“It is the means of which”
Difference of Question of Fact vs. Question of Law:

Lecture on how to answer questions in law school: Use of Question of Fact Question of Law
syllogisms. Apply the Law on Evidence Apply the law
Appeal is made to the Court of Appeal is made directly to the
1.) Tenable/Untenable—conclusion (ultimate facts) appeals for pure questions of Supreme Court
2.) Minor premise—the applicable law (evidentiary fact or mixed questions of fact
facts) US Law: It is determined by the US Law: It is determined by the
3.) Major premise—how the law is applicable based jury judge
on the facts (evidentiary facts)
4.) Conclusion to your answer

Every evidentiary question contains the relationship between the

ultimate facts and the evidentiary facts. Section 3. Admissibility of Evidence—Evidence is
admissible when it is relevant to the issue and is not
Exercise:
excluded by the law or these Rules.
Give me a factum probandum?
When we talk about admissibility, the basic question to ask is:
Student: A is obliged to pay B the amount of Php 10,000 to be
Will the Court accept it as a viable proof of a particular topic?
collected on June 29.
Admissibility of evidence—answers the question where certain
Atty E: How do you prove that? What is your factum probans? What
pieces evidence is to be considered by the court.
is your factum probandum?
Weight/Probative value of evidence—answers the question on
Student: An example of a factum probandum for such kind of
whether the admitted evidence proves an issue by the quantum of
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
It is simple as that, thus particular evidence may be admissible, but
its evidentiary weight depends on the judicial evaluation in the
guidelines provided by the Rules of Court.
2 Basic Requisites of Admissibility (Rule 128; Section 3):
a.) Relevancy—is such a relation to the fact in issue as to
induce a belief of its existence or non-existence of a fact.
b.) Competency—and evidence is competent if the law or
these rules of court do not exclude such evidence.
Section 3 of Rule 128 is directly derived from the Actions of
Admissibility according to Wigmore. The real Wigmore!
June 28, 2018 – April Sillada
I share the opinion of my former mentor before, my teacher in
International Law when I was taking up my masters – the present
presidential spokesman, Harry Roque.
Part of our discussion was this, the Human Security Act. So his bone
of contention is this word: “suspected” of the crime of terrorism. So
the moment that you are suspected, all that the police operatives
have to do is to ask for a written order from the Court of Appeals.
So what is the quantum that is required? No need for probable
cause. Diba for the issuance of a search warrant or warrant of arrest,
probable cause. Here, a mere suspicion. And so according to him, it
dilutes the right to privacy. And I agree. It dilutes RA 4200 – the
Anti-Wiretapping Act.
And in addition to that, under RA9372, the Human Security Act,
even the law on the secrecy of bank deposits is affected. Because if
you are a suspected terrorist, the law enforcement agencies can
inquire into your bank deposits on the guise that you are suspected
of committing terrorism.
And you know how the Human Security Act defines terrorism? It
defines crimes that could be committed by a terrorist according to
how these crimes are defined under the Revised Penal Code, with
the added element that the perpetration of these crimes is used in
order to sow fear and terror among the populace. Mao ra na siya ang
nakabutang sa Human Security Act.
So to my mind, the Human Security Act is a little bit too simplistic,
and it allows our enforcement agencies a lot of liberty to inquire into
the private lives of ordinary Filipinos.
For all we know, I’m already a suspected terrorist. And they will
inquire into my bank account and see that I only have Php7500. But
my wife’s bank account is a different matter. The joke I always make
is that: You know what? Mag-asawa gud. Unitas personae – one
person under the law. Our estates are combined, which means na
kung unsay ako, iya. Kung unsay iya, iya ra.
Anyway, there’s also this case of Navarro v. CA. If the
communication is not private, its tape recording is not prohibited.
Also, take note of Article III, Section 12.
Section 12.
1. Any person under investigation for the commission of an
offense shall have the right to be informed of his right to
remain silent and to have competent and independent
counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except
in writing and in the presence of counsel.
2. No torture, force, violence, threat, intimidation, or any
other means which vitiate the free will shall be used
against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are
prohibited.
3. Any confession or admission obtained in violation of this
or Section 17 hereof shall be inadmissible in evidence
against him.
4. The law shall provide for penal and civil sanctions for
What is this Section 17? That’s the right against self-incrimination.
Section 17. No person shall be compelled to be a witness against
himself.
Take note also of RA 7438 – the rights of persons arrested,
detained, or under custodial investigation.
Section 2. Rights of Persons Arrested, Detained or Under
Custodial Investigation; Duties of Public Officers. –
(a) Any person arrested detained or under custodial investigation
shall at all times be assisted by counsel.
(d) 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 presence of any of
the parents, elder brothers and sisters, his spouse, the municipal
mayor, the municipal judge, district school supervisor, or priest or
minister of the gospel as chosen by him; otherwise, such
extrajudicial confession shall be inadmissible as evidence in any
proceeding.
So fruit of the poisonous tree lang gihapon ang iyahang take, in
other words.
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. (4a)
What is a relevant evidence?
• It is evidence which has a tendency in reason to establish
the probability or improbability of the fact in issue.
• It is evidence tending to prove or disprove a material fact.
• It is evidence having a tendency to make the existence of
any fact that is of consequence to the determination of the
action more or less probable than it would be without the
evidence.
Relevancy vs. materiality
Take note that relevancy is not the same as materiality. Because
material evidence is evidence which tends to directly prove the fact
in issue.
So for example, if you want to prove the existence of a loan, what
would directly prove it? The promissory note is material. If you
want to prove the cause of death, the death certificate of the person
is material. But again, it’s not the same as relevancy.
To illustrate the difference between relevancy and materiality, I will
always go back to the example of Dean Inigo because it’s the best
example.
A was shot from a long distance right in between the eyes. Like who
can do that? It’s either a very lucky shot, or you are a really skilled
shooter. B was the main suspect and he was prosecuted for the
crime. During the presentation of evidence, the fiscal presented
testimony trying to prove that B was a former Olympic gold
medalist in long distance shooting.
Q: Is the evidence material? Does it directly prove that B shot A?
A: It does not tend to prove the fact in issue of whether or not B
killed the victim. Because the issue here is not about the Olympic
record of the accused.
Q: However, does such evidence have a tendency to prove that B is
the killer due to his ability as a really sharp shooter?
A: Of course. Yes, the evidence may not be material but it is still
relevant. It has a tendency in reason to establish the probability or
improbability of the fact in issue.
Stated otherwise, would it be more likely that it is B who is the
shooter, given his Olympic record, than anybody else? If the answer
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
evidence evidence
Evidence is offered to prove or Evidence has the tendency in
disprove a fact in issue reason to establish the
probability or improbability of
the fact in issue
Direct proof May either be direct or
circumstantial
Self-evident May require reasoning and
inference
Material evidence is always Relevant evidence is not always
relevant material.
Three Kinds of Admissibility
1. Multiple Admissibility
Evidence that is plainly relevant and competent for two or more
purposes will be received if it satisfies all 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 requirements for
admissibility for other purposes.
2. Conditional Admissibility
Evidence appears to be immaterial but it is admitted by the court
subject to the condition that its connection with another fact
subsequent to be proved will be established. Otherwise, such fact
already received will be stricken off the record at the initiative of the
adverse party.
3. Curative Admissibility
Evidence that is otherwise improper is admitted despite the
objection from the other party to contradict improper evidence
presented or introduced by the other party, to cure, contradict, or
neutralize such improper evidence.
Curative Admissibility
This curative admissibility, I was able to observe personally, applied
to a case that I handled before. The case that I handled was covered
by the Rules on Summary Procedure. Remember that under the
Rules on Summary Procedure, kung wala sa affidavit, it will not be
taken up. If it is evidence that was not previously identified, or
maybe hinted at, in your affidavits, it cannot be presented.
But being the lawyer that I am, I tried to present inadmissible
evidence. It’s an unfair surprise against my opponent. Unfair
surprise for the simple reason that if I present evidence that was not
previously identified, he will not have the opportunity to refute it.
And so my opponent objected. Grabe objection niya, halos patyon
ko niya sa objection. And then the court asked me to comment on
his objection. And then the same bullshit that I always do to try to
defend against an objection, I say “Your Honor, this is newly
discovered evidence. It is allowed, Your Honor, because it is
relevant to the fact in issue. It directly proves that the accused is
liable to my client. And remember, Your Honor, that this is not
supposedly a battle of technicalities, but rather, cheche bureche
whatever.”
True enough, the judge was impressed. Nadala sa akoang bulatik.
Pero naningkamot kog argue diba. And then he allowed me to
present supposedly inadmissible evidence. He told the other party.
“Don’t worry counsel because under the principle of curative
admissibility of evidence, you are also allowed to present similarly
inadmissible evidence to counteract the evidence that I’m allowing
right now.”
My god, ka-bright sa judge. He knows about the curative
admissibility of evidence. Only to find out that the judge is a book
author in Criminal Procedure and Evidence – si Judge Alejandro
Ramon C. Alano, from the Municipal Trial Court of General Santos
City.
Multiple Admissibility
There’s a lot of examples on multiple admissibility.
• Later on, we will learn in Rule 130, Section 37 about the
exception to the hearsay rule called a dying declaration.
An example of how multiple admissibility can apply there
is that even if a statement does not qualify as a dying
declaration, it may be admitted as part of the res gestae.
under the Best Evidence Rule but they will still be
admitted as object evidence to prove the existence or
condition of the object.
(Sir held up a class card.) What’s this? It’s a class card. What is the
color? Green. Can you tell me the shape? Rectangle. Does it matter
to me, when I asked you those questions, what’s written here? That
it purports to belong to a certain Lim, Jennifer Marie? Does it
matter to me? No, because my questions were about the color and
the shape. And therefore, I’m looking at this piece of paper as an
object, not as a document.
But what if what matters to me is what is written in this piece of
paper – unsay nakasulat. And therefore, it becomes a document.
Now does it mean that in a court of law, I can only present this as a
document? And I cannot present this anymore as an object?
Because something just happens to be written in this piece of paper?
That, my friends, is the concept of multiple admissibility. It can be
presented in court for different purposes and as different types of
evidence.
Bar Exam 2005 Question:
May a private document be offered and admitted in evidence, both
as documentary evidence and as object evidence?
Answer:
(That is precisely what the law on multiple admissibility of evidence
is all about.) A private document may be offered and admitted in
evidence, both as documentary evidence and as object evidence. The
document can also be considered as an object for purposes of the
case. Objects as evidence are those addressed to the senses of the
court. Documentary evidence consists of writings or any material
containing letters, words, numbers, figures, symbols, or other
modes of written expression offered as proof of their contents.
Hence, a private document may be offered as object evidence in
order to establish certain physical evidence or characteristics that
are visible on the paper and, writings that comprise the object.
Bar Exam 1994 Question:
At the trial of Ace for violation of the Dangerous Drugs Act, the
prosecution offers in evidence a photocopy of the marked 100-peso
bills used in the buy bust operation. Ace objects to the introduction
of the photocopy on the ground that the Best Evidence Rule
prohibits the introduction of secondary evidence in lieu of the
original.
A. Is the photocopy real or object evidence, or is it
documentary evidence?
B. Is the photocopy admissible in evidence?
Now, a little bit about the Best Evidence Rule. If you are going to
present documentary evidence, the general rule is you have to
present the original. You cannot just present a mere photocopy. So
if you’re presenting a document, the Best Evidence Rule will be
applicable. But if you’re presenting something else, it does not
apply.
So if your answer in Letter A is that it is documentary evidence, in
all probability, your answer in Letter B is that it is not admissible
because it violates the Best Evidence Rule.
But if your answer in Letter A is that it is a mere object, therefore it
will be admissible in Letter B because there’s no such thing as Best
Evidence Rule for objects.
Answer:
A. It is real or object evidence because it is not offered as
proof of its contents but as tangible proof, object of the
illegal sale of dangerous drugs.
B. Yes, the photocopy is admissible in evidence because the
Best Evidence Rule does not apply to object evidence.
Theories of Curative Admissibility
1. American Rule
The admission of such incompetent evidence without objection by
the opponent does not justify such opponent from rebutting it by
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

If a party has presented inadmissible evidence, the adverse party o Positive evidence: If his answer was ‘yes’ or ‘no’,
may resort to similar inadmissible evidence. because it affirms the existence of a fact, which tells
you that the headlight was on or off.
3. Massachusetts Rule
o Negative evidence: If the answer was ‘I did not
The adverse party may be permitted to introduce similar notice’, because he did not see or know the
incompetent evidence in order to avoid unfair prejudice caused by occurrence of a fact.
the admission of the other party’s evidence.
§ Let’s compare this with alibi (also a
What should determine the application of the rule of negative defense). If your defense is an
curative admissibility? alibi, then you’re saying that you weren’t
there, then how could you have hit him.
1. Whether the incompetent evidence was seasonably
objected to; and
Negative pregnant is a form of negative expression which carries an
2. Whether, regardless of the objection, the admission of
affirmation. Thus, it is a denial pregnant with an admission.
such evidence shall cause a plain and unfair prejudice to
the party against whom it is admitted.
• Example. “Have you ever smoked marijuana?”

July 5, 2018 – April Sillada o Affirmative answer: “Yes, I’ve smoked marijuana”, or
“No, I never smoked marijuana”
Different Types of Evidence o Negative pregnant: “I never smoked marijuana in
school”. This implies that I smoked marijuana
Material vs. immaterial outside school.

• Material evidence: That type of evidence which directly

proves the fact in issue As to the need to infer or presume
• Immaterial evidence: Something that has no bearing
whatsoever in the matter proving the fact in issue. Direct Evidence Circumstantial Evidence
Establishes the existence of a Does not directly prove the fact
fact in issue without any aid of in issue, but merely provides
Competent vs. inadmissible inference or presumption. logical inferences that such fact
• No need to infer or really exists.
• Competent evidence: Evidence that is allowed by the law presume from the • You still need to put one
or the Rules of Court evidence shown that it’s and one together.
• Inadmissible evidence: Those that are excluded by the law another fact
or the Rules of Court. The witness testifies directly of Each proof is given facts and
his own knowledge as to the circumstances to which the
way facts are to be proved. court may infer or connect facts
Relevant vs. irrelevant • Example: He knows it to which reasonably follow
be true, because he saw it according to the common
• Relevant evidence: Evidence that has such a relation to experience of mankind.
happen. He knows that it
the fact in issue as to induce belief in its existence or non-
smells, because he smelled • In appreciating
existence.
it. circumstantial evidence,
• Irrelevant evidence: One that does not advance the you are appreciating the
proposition that you wish to prove. It is one that does not, relevancy of evidence.
in any way, make the fact in issue any less probable or
• Going back to Section 1 of
improbable in proving things.
Rule 128: “Evidence on
collateral matters shall not
be allowed, except when it
Positive vs. negative
tends in any reasonable
When you talk about positive and negative evidence, you’re talking degree to establish the
about whether evidence affirms or negates. probability or
improbability of the fact in
So for example, when you talk about positive evidence, it is when issue.”
the witness affirms that the fact occurred or did not occur. While in o When we talk
negative evidence, on the other hand, is when the witness avers that about the
he did not see or know the occurrence of a fact. He’s simply saying second part of
that “I do not know.” the sentence,
we’re actually
A perfect example of that would be the oft-abused term “alibi.” In its using common
simplest form, alibi is simply that you’re saying “I was elsewhere.” sense on that.

For example, A is accused of killing B. And then A, instead of saying
that he’s guilty or not guilty, he’s simply saying “I wasn’t even there
when the crime took place. So how could I be guilty?”
A denial of course is negative evidence. It is considered by
jurisprudence to be a very weak form of defense, and can never
overcome a positive or affirmative testimony, particularly when it
comes from the mouth of a credible witness.
And informally, let me say that there is a third type: a negative
pregnant evidence. In civil procedure, we know this to be
negative pregnant admission. It’s a form of a negative expression
which carries with it an affirmation or at least an indication of some
kind, favorable to the adverse party. It is a denial pregnant with an
admission of the substantial facts.
1. Direct Evidence
• Proof of fact or point in issue that belief establishes the truth or
falsity of the fact in issue, and does not arise from a
presumption. So in other words, it’s direct proof. You don’t
need to infer the existence of other facts. It’s just it, as it proves
it directly.
• Example: CCTV footage where accused is charged for theft. It
directly proves the fact in issue, as it shows the accused
stealing the objects. Thus, it proves the fact in issue, in the
form of object evidence (CCTV footage).
• Take note that there are certain facts not susceptible of direct
proof, such as conspiracy.

o A conspiracy exists when two or more persons come

July 5, 2018 - Benrich Tan to an agreement concerning the commission of a
felony and decide to commit it.
Let’s go back to positive evidence, where a witness affirms that a fact o No one’s fool enough to produce their agreement
occur or did not occur. into writing. Thus, you cannot expect direct proof of
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
2. Circumstantial Evidence
• Evidence not directly bearing on the fact in dispute, but in
various attendant circumstances from which the judge might
infer the occurrence of a fact in dispute.
• Example: Somebody was stabbed inside a house. A guy came
out of it with a bloodied shirt and knife, ergo, that person killed
that person. Correct?
o In the matter of direct evidence, NO. Circumstances
does not equal to him killing that person. It could
have just been a Halloween costume. Direct evidence
would be an eyewitness or photographic evidence
that shows him killing the person.
o However, this could be circumstantial evidence.
• Rule 133, Section 4. Circumstantial evidence, when sufficient.
— Circumstantial evidence is sufficient for conviction if:
a) There is more than one circumstances;
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.
The following is an example which teaches us:
• The distinction between circumstantial evidence from direct
evidence
• When circumstantial evidence is sufficient to warrant a
conviction; and
• When circumstantial evidence advances the proposition (or
when is it relevant)
FACTS:
X was murdered, and Y was the primary suspect. X and Y had a
long-standing grudge, to the point they were seen altercating in a
public setting at some point prior. Y was reputed to be a gun-for-
hire. However, there was no eyewitnesses during the shooting.
The prosecution’s evidence was the testimony to prove:
a) Y was at the vicinity during the scene of the crime. He was
inside the room where the victim was shot, and a person
wearing a helmet with Y’s same height and built was seen
fleeing with a motorcycle from the scene of the crime.
o But there was no one who could testify such, because
there were no eyewitnesses.
o The purpose for the prosecution’s evidence was to
prove opportunity, to place Y at the scene of the
crime to prove that it was possible that he was the
one who shot X.
§ Possible, and not certain, because there
was no eyewitnesses at the time when Y
was shot.
b) The animosity between X and Y
o Such evidence was offered
o The purpose for the testimony of animosity was to
prove motive, on which the grudge was the reason
why Y shot X.
The accused’s defense was an alibi (negative defense, an inherently
weak defense), in which Y was in a different municipality at the time
of the shooting. Y’s counsel presented witnesses placing him at the
municipality.
ISSUE:
Is evidence based on motive and opportunity material and prove the
fact in issue (whether Y shot X)? NO.
RATIONALE:
Direct evidence of the shooting would be the eyewitness account of
the shooting or a photograph.
1+1=2. “1” for them would be somebody fitting Y’s description was
circumstantial evidence on the fact in issue. Although they do not
tend to directly prove the fact in issue, they have the tendency to
establish the probability or improbability of the fact in issue, and
thus, admissible.
However, Y was acquitted, because the prosecution’s evidence was
merely circumstantial. It was inherently weak, even though Y’s
defense was also inherently weak. To produce a conviction based on
circumstantial evidence, the sum of the circumstances must prove
the fact in issue beyond a reasonable doubt. The argument of the
defense was that the presumption of evidence must prevail, thus Y
was acquitted.
Remember, motive and opportunity are mere circumstantial
evidence They are not considered to be material or direct evidence.
On another note, negative evidence is only defeated by positive
evidence. Since the defense was alibi, and since no witness during
cross-examination can say that they saw Y shoot X at the scene of
the crime, negative evidence is still produced from the testimony.
Also, between the prosecution’s negative evidence and the accused’s
negative evidence, the latter prevails, due to the constitutional
presumption of innocence.
As to originality
Primary or Best Evidence Secondary or Substitutional
Evidence
Evidence which the law Inferior or substitutionary
regards as effecting the evidence or evidence which itself
greatest certainty of the fact in indicates the existence of a more
issue original source of information
1. Primary or best evidence.
• EX. Presenting a promissory note in a collection case;
Presenting receipts to prove actual damages
2. Secondary or Substitutional Evidence
• EX. The TSNs being sold by various school organizations.
They are all photocopied, which proves there is an
original of such.
• Take note of the Best Evidence Rule, where the subject
of inquiry is the contents of a document, no evidence shall
be admissible other that original document itself (subject
to the secondary evidence exceptions, whereby you are
allowed to present a mere copy rather than the original).
Types of Supporting Evidence
Cumulative Evidence Corroborative Evidence
Additional evidence of the Additional evidence of a different
same kind and character as kind and character tending to
that already given and tends to prove the same point but
prove the same proposition different types of evidence
July 5, 2018 - Christian Yu
Tan-aw ug basketball and smoking. And ako naa ko sa kuan... we
have a porch at the compound where i can directly watch the
basketball game going outside across the street.
Then suddenly there is this motorcycle riding in tandem, went near
the place where the person was standing and then shot him point
blank sa head.
I saw everything. And then its a basketball game LIGA so a lot of
people where watching. So right after he was shot, dagan tong mga
kuan, it like happened in 3 seconds. You know what the people were
doing? People looked up the dead body instead of running away.
People are not scared. We are more chismoso then afraid. (heheh)
that is what we are as Filipinos.
And so let us suppose in the same example that i gave you, the first
example that i gave you. Naay nag-sumbaganay. A sues B. And so
gipatawag mo, mga 3rd year Manresa kay kamo daw nananaw atong
sumbagay. So nagsugod kang student 1, student 2, student 3 and so
on.
Everything is testimonial evidence attesting to the same fact. Diba,
so that is ( ??? ) of evidence. evidence of the same kind and
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Corroborative evidence, is deemed necessary only when there are
reasons to suspect that the witness did not tell the truth or that his
observations where inaccurate.
In People vs Ayupan febuary 13,2002, according to the SC,
Corroborative evidence is necessary only when there are reasons to
suspect that the witness bent the truth, or that his or her
observation was inaccurate. Evidence is assessed in terms of quality,
not quantity. It is to be weighed, not counted.
And therefore, the consistent ruling of the SC had always been that
the testimony of a single prosecution witness, as long as it is
positive, clear, credible and sufficient on which to anchor a
judgment of conviction. Corroborative evidence or cumulative
evidence is not a pre-requisite for the conviction of the accused.
Truth is established not by the number of witnesses but by the
quality of their testimonies.
Now, Rape case, no homicide angle. Its not a complex crime, its just
rape.
A accused B of raping her.
Ummm how many eye witnesses do you usually have? 1, unless
there is a peeping tom na nanilip. Or the accused was raping and
then “come on! Enjoy the show”
So usually the crime of rape is a private offense. Its committed
usually in the dark, in the talahiban outside the school. But its
usually done 1 on 1. There is only 1 witness and that is the victim.
Contrast that with a crime that would require more than 1 witness.
Like treason. Pila kahinanglan gani? 2 witnesses attesting to the
same act of treason.
So there are crimes that can be proven or can produce a conviction.
A prosecution that produces a conviction with the testimony of the
sole prosecution witness. But there are also other crimes where
there has to be required corroboration. Ok and that would be the
crime of treason among other crimes.
We will go to that later on, when we discuss instances where a
plurality of evidence is required.
Now, prima facie vs rebuttal and then conclusive evidence. So when
you say prima facie evidence, that is evidence that is sufficient to
establish a fact and if not rebutted becomes conclusive of that fact.
Lets go to the crime of bribery for example,
What is punished in the crime of bribery? The acceptance of a gift.
Remember that that mere acceptance of a gift is prima facie
evidence that bribery is committed.
Mere acceptance of that gift, regardless of the motivation behind the
gift. Or the favor that was given. Its already prima facie evidence of
bribery.
Another criminal case, BP22. Remember that unsang tawag ninyo
ana? You are prima facie assumed to know the insufficiency of
funds. The moment you receive the notice of dishonour.
That is prima facie evidence, kung wala kang ma rebut that is
enough.
Later on, we will be discussing prima facie presumptions when we
go to rule 131. That is actually the longest provision in all of the...
kindly take a look at rule 131 section 3. (students look) and tell me
how many pages are those. 7 pages. From paragraph A to paragraph
KK. That the alphabet going over. Thats the longest provision of law
and that will be your memory assignment for next meeting....
hehehe joke lng. Maayo kay naminaw mo.
So during my time, dean Inigo would challenge the students. And
then he said “ok lets say your grade is 65 in evidence. ill give you a
way out” what is the way out? “ you memorize at the end of the
semester you deliver your memory of rule 131 section 3 from
paragraph A to paragraph KK”
But you have to memorize everything including the commas and
other punctuations. That was the deal of dean inigo. And so being a
dean inigo acolyte, when i started teaching evidence i also told that
to my students. I dared my students. And there was this student
who dared. So i was forced to sit and listen to the student challenge
Ok so what is rebuttal evidence?
That which is given by a party in a case to explain, repel, counteract
or disprove facts given by evidence on the other side.
That rebuttal evidence is more particularly applied to that evidence
given by the plaintiff to explain or repel the evidence given by the
defendant
Whereas conclusive evidence,
That is evidence which is incontrovertible. That is to say either not
open or not able to be questioned as where it is said that a thing is
conclusively proved. It means that such result follows from the facts
shown as the only one that is possible.
And finally you have intrinsic evidence vs. extrinsic evidence.
Intrinsic evidence, Information necessary for the determination of
an issue that is gleamed from the provisions of the document itself
And then you have extrinsic evidence, also called parol evidence or
evidence aliunde, refers to evidence form a source outside the
subject document.
Aliunde, simply means from another source. Another source. Alibi
means another place.
Alia means another person or other people. So mao na siya “et al” .
Now you will encounter intrinsic evidence in wills and succession.
And later on we will take up the parol evidence rule which in rule
130 section 9. So we will not talk about that to much right now. Yet.
Not yet.
As to the type of evidence you have object evidence, documentary
evidence, testimonial evidence and demonstrative evidence.
Real or object evidence: Those addressed to the senses of the court
and are exhibited to, examined, or viewed by the court.
It proves the existence, appearance and condition of physical
objects.
So addressed to the senses of the court. The sense of sight, the sense
of smell, the sense of hearing, the sense of taste, the sense of touch.
Its just ironic that the most important sense of all “common sense”
sometimes escapes the court. Ok.
What about documentary evidence?
Consists of writings or any material containing letters, words,
numbers, figures, symbols, or other modes of written expression
offered as proof of their contents.
And then you have testimonial evidence which ae oral or Written
assertions offered in a court as a proof of what is stated for as long
as the witness whose testimony was offered, perceived and in
perceiving can make known its perception to others.
Lets talk about real or object evidence first and contrast that with
documentary evidence.
In real or object evidence otherwise known as AUTOPTIC
PROFERENCE. We will go to that again when we go to rule 130
section 1. We are concerned about an object or something that we as
persons can perceive by the use of our senses.
Ok? Kung unsay makit-an, unsang masimhutan, malasahan,
madunggan, magunitan. Mao na ang real or object evidence.
And it is precisely our perceptions using our senses that would be
material to the fact in issue. That would be important for the
matters to prove.
So let’s say for example:
This is a white board. Ok so what is a white board for? To write sir.
To write on. This is a wall, that is a wall. And they are objects. This
is paper. And then paper of course has something written on it. And
therefore is it safe to conclude that this is a document? Safe to
conclude that this is a document, because it contains letters,
numbers, figures, words, and other modes of written expression?
NO. Why? Very simple, whatever is written there must be offered as
proof of their CONTENTS.
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
So not necessarily that a paper is considered a document.
What about an object?
Now let us suppose that on that wall. A and B are classmates from
3rd year Manresa again. Nangutang si A kang B. And then wala man
silay papel Makita. And they had a pentel pen. They wrote it on the
wall “ i promise to pay B to him or his order the amount of 5k signed
A”
What is that?
That is a promissory note. But its not even on paper.
Let us suppose that A did not pay B. And that is the only evidence of
the debt. So you have to like cut it out from the wall. The bigger wall
and bring it to court. Is it an object or a document?
Thats not even an object. Why? Because it is offered as proof of its
contents. Not as proof of its physicial appearance, not as proof of its
material used. But rather what is stated there.
That is what makes it a document. Whatever is written makes it a
document.
It reminds me of, because not a lot of people know that i taught
succession before. Kabalo mo ana? I taught succession before. As i
said im the favourite of Gina. Pag walay teacher, ako patudluon.
And the teacher that time was already my wife. Maternity leave.... i
knocked her up so she had to take a maternity leave and i had to
take over succession for her. And then during my research i came
across a case somewhere in Germany or Austria somewhere there.
And then somebody died sa iyang barn or farm. And he was
bloodied and he was about to die. So he scribbled across the wall in
German. And he wrote in the wall in German the shortest will in
history consisting of 2 words in German, translated in English 3
words. “all to wife” using his own blood “all to wife”
So that is his testamentary intent. Everything that i own i leave to
my wife. And you know what? It was admitted to probate.
So gi sulat niya sa wall. Wall is not paper, but it was submitted as a
document. A holographic will.
I hope it doesn’t happen to me. There is no need to leave anything to
my wife, because my wife already owns everything including my
soul. BUT not my body.
Then you have testimonial evidence. Its what a witness states in
open court. Oral or even written assertions offered as proof of the
truth of what is being stated if the witness can perceived and in
perceiving can make known its perception to others.
Now take note that testimonial evidence can be either oral or
written.
Oral – he utters it in open court.
Written, what about written assertions? Pwede diay na siya sir?
Affidavits are testimonial in character. A judicial affidavit even.
When did you discuss judicial affidavits?
Civ pro. That is supposed to be evidence. ok at least my job is
already done. I don’t have to discuss judicial affidavits with you.
Those are written assertions, it’s in written form.
Now have you ever made affidavits in your lives. Like an affidavit of
loss. Anybody here that has ever lost an id? You you have lost an id?
3 times. So I would assume that you have executed an affidavit of
loss 3 times as well.
Ok where did you go? Legal aid. How much did dean quibod
charge? 50 pesos. Ok so thats 50 pesos worth spent. You spent a
hundred pesos more because you were unlucky twice more.
But, let me tell you that I can guess what goes on in that affidavit of
loss that you signed.
Like, did it go in a manner like you were going to school maybe or
you are going somewhere.
Or maybe you are about to go home and then you realized that your
I.D. was no longer there and you exerted diligent efforts to locate
your ID but your efforts were futile, right?
Am I not correct?
(He did.) See?
Because affidavits – If it is Ordinary Affidavits, these are
prepared by lawyers.
And lawyers employ their own language.
Ikaw bay gipasuwat sa imong affidavit? No.
It is the lawyer who prepares it and in all probability, it is a prepared
form and you just simply fill in the blanks.
Now, contrast that with a Judicial Affidavit, which is supposed to
be a substitute to a testimony in court.
The requirement of the law is that the judicial affidavit must be
executed – in the language known to the affiant or witness.
It is not the language of the lawyer anymore because it is supposed
to be testimonial evidence that will be presented in court.
So there are 3 as to the type of evidence:
1. Object or Real;
2. Documentary;
3. Testimonial;
And there’s 4th:
4. (Informally) Demonstrative evidence.
- Or evidence, in the forms of objects such as maps,
scale models, symbol, diagrams or objects that has in
itself no probative value but is used to illustrate and
clarify a factual matter in issue or aid a testimony.
Demonstrative evidence –
It is evidence, as evidence is not prohibited although not
specifically mentioned in the Rules of Court.
In appreciating demonstrative evidence, the court uses the same 5
senses in object evidence.
But more importantly, the court applies intelligence to make
analysis, draw conclusions, and inferences from the objects
presented.
Thus, in demonstrative evidence, what is important is not the object
itself,
è but the information that the object creates.
Example:
This is usually when, I’ll tell you about a story of the dumbest
witness ever created by God in the case that I had handled.
There’s this guy who cannot seem to answer anything intelligently.
And so he was asked during direct examination,
“When the motorcycle hit you, unsa ka kalayo nalagpot?”
I forgot the exact question.
“You were thrown at a distance of what?” Okay, then translate pa
kay dumbest witness ever created gani. Then he said, “50 meters”.
Just imagine 50 meters. How far is that? So he has that type of
mentality. So I said na murag dili man kaya na kaning witness na ni
will be testifying in his own power so there has be a need for
demonstrative evidence.
So the next time that the witness is presented, because there are 2
cases here involving the same incident, nagbuhat ko og sketches.
Sketches simply to aid the testimony. So there are drawings. Let us
supposed that this is the motorcycle, and this was you, and this is
the store. So, “where were you after you were hit?” And so he will
point at that diagram and from that, we can already estimate
properly how far. To really determine kung unsa kalayo siya
nalagpot. Because that will prove na paspas kayo ang dagan sa
motor.
Because it will be impossible for the court to believe na nabangaan
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Let’s say a map is presented in court for a witness to identify where
he found, for example, the body fo the victim. And so he will point
to it.
What’s the evidence there?
When we talk about demonstrative evidence, is it where he pointed
in that particular map? Or is it his testimony that was merely aided
by the object?
It is à his testimony.
So it is a hybrid between (a vampire and a warewolf. Nag joke si sir.)
A hybrid between real evidence and testimonial evidence.
Now, in PEOPLE VS. LAVAPIE:
If the physical evidence on record runs counter to the testimonial
evidence of the prosecution witnesses, conclusions as to physical
evidence should prevail.
Physical evidence is that mute but eloquent manifestations of
truth which rate high in our hierarchy of trustworthy evidence.
In the light of the physical evidence obtaining in this case, contrary
to oral assertions cannot normally prevail.
Greater credence is given to physical evidence as evidence of the
highest order because it speaks more eloquently than a hundred
witnesses.
So there is a Hierarchy Of Evidence:
1) Ang pinaka trustworthy, according to the SC, is Physical
Evidence.
- Which is to say à Real or Object Evidence
But there are still other evidences like documentary and then you
have testimonial.
So between documentary and testimonial, which will prevail in case
of conflict?
Which one is more trustworthy?
According to the SC, in GSIS VS. CA: Documentary evidence
prevails over Testimonial evidence. Why? Because Testimonial
evidence is easy of fabrication and there is very little room for choice
between testimonial evidence and documentary evidence because it
is in the nature of people na mangatik and I am looking at you guys
right now, hilig mo mangatik.
So testimonial na lang ang pinaka ulahi, ang pinaka ubos. But you
need to remember that there are also 2 forms of testimonial
evidence:
- Oral testimony; and
- Written testimony.
So which one prevails over the other?
According to the SC, in PEOPLE VS. BALLENO:
In any case, open court declarations take precedence over written
affidavits in the hierarchy of evidence. Unlike written statements,
there is flexibility on the part of the questioner to adapt his
questions to elicit the desired answer in order to ferret out the truth.
Therefore, Oral testimony prevails over written testimony.
Hierarchy Of Evidence:
1) Physical Evidence
- Real or Object evidence
2) Documentary evidence
3) Testimonial evidence
a. Oral testimony
b. Written testimony
So you already have that full picture and then you’ll say na “Banga
ka testimonial evidence! Grabe ka oy.”
So let us suppose that this is an axe, which is the murder weapon. So
Mr. Axe?” Or okay, let us not use this (eraser) because obviously,
this is not an axe.
Let us supposed we have that Deed of Sale, which allegedly transfers
the deed to where the Ateneo de Davao is standing to a person
named Tampolano, sometime 20 years ago and then the heirs of
Tampolano are now claiming that they own the lot where Ateneo
stands.
Di ba naa tay Latin Maxim na – “Accesorium Sequitur Principale”
è Accessory follows the principal
So anything built on top of the lot is considered as part of the lot. So
the heirs are saying that “We own Ateneo.” and they have that Deed
of Sale.
So in court, in the case against Father Tabora, I presume, there is a
document. And so let us present the document. Put it at the witness
stand.
NO!
Objects and documents do not testify by themselves.
Which brings me to my point –
That even if testimonial evidence is the weakest, the lamest
among the different types of evidence,
è It is still the most important.
Why? Because no evidence, object or real or documentary evidence,
will ever be presented in court unless they are in effect sponsored by
a witness.
So naa jud witness na
- mag authenticate,
- mag identify and
- then testify
on the contents of the document or an object.
July 5, 2018 (1:06:01- 1:36:00) Dane Viola
No evidence object, real or documentary evidence will ever be
presented in court, unless someone will authenticate, identify and
testify a document or an object. You cannot just bring an object in
court and let the court observe it, there must be somebody who
must attest to them. So testimony evidence is at the bottom, but it is
the most important.
TYPES OF TESTIMONIAL EVIDENCE
1.Oral and Written testimony
2. As to tenor of testimony:
• Ordinary evidence
• Character or Reputation evidence
• Opinion evidence
• Expert evidence- a species of Opinion evidence
Character or Reputation Evidence- evidence attesting to one’s
character and moral standing in the community Generally the
character is regarded as irrelevant in the determination of the
controversy.
Because otherwise, what will happen? It is simply the judge’s
impression on the person. So if the judge says “Ay, ka pangit sa
reputasyon, leche.” Then he will never win because of his character
and his reputation is not ok, that’s why it’s legally irrelevant.
Opinion Evidence- evidence based on what one believes or infers,
based on personal knowledge or facts related to the facts in issue.
Why is this not allowed? Because otherwise, what will happen is it
will be a popularity contest. So let’s just do a survey of the opinion
of the people.
“Is he guilty, or not guilty?”
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

of the court itself. Regardless of how stupid that opinion might be,
it’s still the opinion of the court.

Expert Evidence- consists of the opinion of a witness on a matter

requiring special knowledge. In cases requiring specialized
knowledge, expert testimony is required.

In medical malpractice cases, what you have to prove is the fact that
the medical practitioner deviated from the standards that are
usually employed in the medical profession and the only way you
can do that is through expert testimony of a medical practitioner.
But, ordinarily expert testimony would not be required and even
when expert testimony is presented in court, they are merely
persuasive and they are not binding upon the court.

Ordinary evidence- consists in the testimony of a witness who

testifies to those facts which involves his personal knowledge, which
are solely derived from his perception. We’ll go to that when we
reach Ordinary testimony.

Take note that there should be a liberal construction of the rules of

evidence. It must be liberally construed, for they are mere rules
intended to facilitate the administration of justice. A strict and rigid
application of the rules must be with the primary objective of
enhancing substantial justice.
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
RULE 129
WHAT NEED NOT BE PROVED
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. (1a)
Rule 129 covers Judicial Notice which can be mandatory,
discretionary or Judicial Notice when hearing is necessary, and
Judicial Admissions.
Mejia Espinoza vs Cariño
The general rule is that courts must based their factual findings on
such relevant evidence formally offered during trial, recognized
exceptions to this are matters which courts can take judicial notice
of, judicial admissions, and presumptions created by law or by the
Rules.
When can proof be dispensed with? When a conclusive presumption
applies, no proof is required because it is conclusive already. You
can’t refute it because it is already considered final under the law.
Example:
A child is conclusively presumed to be incapable of
criminal liability provided that there is ample evidence or
proof about his age.
What happens if it is a mere disputable presumption? It merely
defers the presentation of proof.
Example:
There would be the presumption that an unlawful act is
done with an unlawful intent. In other words, intent is
presumed in the unlawful act. This means that the
prosecution need not prove in the mean time that the
accused committed the act with criminal intent.
However, if the accused proves that the act was done
without intent, that’s the time when the prosecution
presents rebuttal evidence so as to refute the proof made
by the accused that he did the act without criminal intent.
It therefore, has an effect of shifting the evidence upon the party
against whom a disputable presumption is imposed.
Example:
Article 2185. Unless there is proof to the contrary, it is
presumed that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating
any traffic regulation.
Let’s say a person is over speeding, in a way that it is
transgressing the limits set by the law.
What’s the effect of Art 2185? The plaintiff, need not
prove negligence on the part of the defendant, the burden
shifts to the defendant to prove that he was not negligent.
When a fact is admitted by the parties in court, proof can be
dispensed with.
Example:
If the existence of a debt is stipulated upon, the fact is
already withdrawn from contention then such fact need
not be proved.
MATTERS THAT FALL WITHIN THE REALM OF
JUDICIAL NOTICE
It is the assumption of the court of a fact without need of further
traditional, evidentiary support. This principle is based on
convenience and expediency in introducing evidence on matters
which are not ordinarily capable of dispute and are actually bona
Rationale: Taking Judicial Notice is a matter of expediency and
convenience for it fulfills the purpose that the evidence is intended
to achieve and this is equivalent to proof.
So it would be superfluous, inconvenient and expensive both to the
parties and the court to require proof in the ordinary way of facts
that are already known to the court. In fact, insistence of not taking
judicial notice might lead to absurd results.
What are matters that the courts are supposed to take judicial notice
of?
Example:
Laws of nature, like the law of gravity.
What is the rate by which an object falls? At the rate of
9.8m/s2.
“Sir! Someone jumped from the top of the Marco Polo!”
“Nahulog?”
“Malamang!”
“What happened to him?”
“AY edi namatay!”
Laws of nature! You will FALL (awwww sir, walay tinud-
anay! lels)
When you fall, it is logical to assume that you will die.
This is why the courts take judicial notice of the laws of
nature.
Geographical divisions, existence and territorial extent of
states.
For example, there is a Swiss from Switzerland who files
a case against a Filipino in the Philippines for the
collection of a sum of money.
He sues the Filipino in court to collect the debt, and
during his testimony, the court has to ask:
“What’s your citizenship?”
“I’m from Switzerland”
“What is a Swiss and where is this Switzerland? The
court is not convinced that Switzerland exists! So the
court will have to go to Switzerland himself and the
plaintiff will pay for the fare.”
The court can’t do that! The court has to take judicial
notice of the existence and territorial extent of states
because it is of public knowledge capable of
unquestionable demonstration.
Edsam Andit
So, there’s this guy. He’s an American suing a Filipino for the. Ay
Swiss nalang. Para malahi nasad. Switzerland. They say Switzerland
is a nice country. So, there’s a Swiss guy who files a case against a
Filipino guy for a collection of loan. And during his testimony, the
court asked him. “What is your citizenship Mr. Plaintiff?”. The
plaintiff said “I am Swiss”. Then the court would say “What is this
Swiss? And where is this Switzerland?”
The court is not convinced that Switzerland exists. So, the court will
have to go to Switzerland. Except, the plaintiff would have to pay for
the plane ticket. You cannot do that. You have to take judicial notice
of the extent and territorial jurisdiction of States. Because anyway, it
is of public knowledge and capable of unquestionable
demonstration. It’s as simple as that. Otherwise, it would be absurd.
If I were the judge, and I have to opportunity to travel for free, of
course I would! But it cannot be done.
(Shares his story of being claustrophobic. Not being able to stay in
the plane for more than 4 hours.)
Now, let’s go to mandatory judicial notice. You already memorized
it. Which is good because Rule 129, Section 1 (MANDATORY
JUDICIAL NOTICE) is always present in any evidence reviewer
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
we are law students and we are here to know the law. So, let’s focus
on that.
LAWS THAT ARE SUBJECT TO MANDATORY JUDICIAL
NOTICE
1. LAW OF NATIONS
2. ACTS OF THE LEGISLATIVE, EXECUTIVE, AND
JUDICIAL DEPARTMENT OF THE PHILIPPINES
3. ORDINANCES
4. LAWS OF NATURE
LAW OF NATIONS
Why do we take judicial notice of law of nations? Because
it is mandated by the 1987 Constitution. Which say that - "The
Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part
of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations".
Based on the Constitution, we therefore, should take judicial notice
with the generally accepted principles of international law. And the
law of nations could actually be understood in a different way. Such
as, in the sense that we are referring to a law of a particular nation.
We do not take judicial notice of a foreign law as a general rule.
Foreign laws actually present a question of fact. Therefore, as the
general rule, they may not be taken judicial notice of and have to be
pleaded and proven same as any other fact.
How do you do it?
• For written foreign law, we follow the process stated in
Rule 132, Sections 24 and 25.
• For unwritten foreign law, we follow Rule 130, Section 46.
Take note, however, of the following principles.
1. A foreign law may be admitted without prove if it is
subject to judicial admission.
a. So, if a party to the case, plead a particular
foreign law and then the other party admits it,
then it is already taken judicial notice of. In a
way, it does not require proof anymore.
2. In the absence of proof or admission to foreign law, it is
presumed to be the same as the Philippine laws.
(PROCESSUAL PRESUMPTION)
Example:
CONDON vs COMELEC
FACTS:
Maja, was the winning Vice-Mayoralty candidate of Caba,
La Union. A petition for quo warranto was filed against
her on the ground that she was a dual citizen. Who, under
RA 9225, must execute a sworn renunciation of her
Australian citizenship.
Maja answered that when she executed a declaration of
renunciation of Australian citizenship in Australia, she is
deemed to have lost her foreign citizenship based on the
laws of Australia.
She wanted the court to take notice of the laws of
Australia regarding laws of citizenship. She also
contended that the mere fact of running for public office
is a clear abandonment of her foreign citizenship. Citing
VALLEZ vs COMELEC.
ISSUE:
Did Maja successfully convince the court? NO
RULING:
Foreign laws are not a matter of judicial notice. Like any
other fact, they must be alleged and proven. And to prove
foreign law, the party invoking it must present a copy
thereof and comply with Sections 24 and 25, Rule 132. In
the absence of proof, the Philippines courts will apply the
Philippine law under the doctrine of processual
presumption.
amend na ba, etc. Kay kung wala ka kabalo, nganong nag
huwes paman kang animala ka! Judges must know more
of the law than lawyers.
Let’s assume for now that all judges know the law. All
statutes. But are there other legislative acts other than
statutes? Are there other acts that are part of the realm of
the mandatory judicial notice without being statutes? Yes,
there are.
Example:
CHAVEZ vs PUBLIC ESTATES AUTHORITY
The court ruled that a Senate investigation report is
deemed covered by mandatory judicial notice because
that is an official act of the legislative department.
Congressional debates and other records that predicated
the passage of the law are considered to be official acts of
the legislative department and therefore within the realm
of mandatory judicial notice.
OFFICIAL ACTS OF THE EXECUTIVE DEPARTMENT
Executive orders and presidential decrees, when they take authority
from the legislative power directly granted to the executive or by the
Constitution or made pursuant to the valid legislative delegation
granted to the president, have the full force and effect of law or
statute.
Perfect example is the Family Code of the Philippines (EO 209)
issued and promulgated by then President Corazon Aquino during
the time when she was given transitory legislative power under by
the provisional constitution of 1986 following the grant of legislative
power during the time of Marcos under the 1973 Constitution.
Example:
Can a family court take judicial notice of an age, let’s say below 18,
by just observing that the person looks like a minor?
So, gitan.aw sa korte. Then ana ang korte na “ah he looks like a
minor. Therefore, the case must be within the jurisdiction of the
Family Court.” Can the court do this? NO!!! because when the court
looks at the witness or the victim or the plaintiff, what the court is
doing is actually appreciating an object evidence by using the sense
of sight. So, when you do that, when you use your senses to perform
the so called “autaptic preference” that’s no longer taking judicial
notice.
So, the concept of autaptic preference is actually repugnant to the
concept of judicial notice.
PASEO vs. LOPEZ
August 19, 1993
ISSUE: W/N presidential issuances can be considered a law.
RULING: YES
Letters of instructions are considered matter of judicial notice. To
form part of the law of the land, a decree order or letter of
instruction must be issued by the President in the exercise of his
extraordinary power of legislation as contemplated in Section 6 of
the 1976 Amendments of the Constitution. Not all decree order or
letters of instruction by the President become part of the law of the
land.
So, other official acts of executive also in the case of.
SAÑADO vs. CA
April 17, 2001
RULING: The action of an administrative agency in granting,
denying or even suspending or revoking a license of franchise or
certificate of public convenience is administrative or quasi-judicial.
Decisions of the office of the president are official acts and those
acts exercising quasi-judicial power by the executive department
may thus squarely fall under matters relative to the executive
department which the court are mandatorily tasked to take judicial
notice of. Judicial notice must be taken of the organization of the
executive department, its principal officers, elected or appointed
such as its president.
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
FACTS:
There was a land occupied by Homeowner’s Association which was
originally used by soldiers as a military reservation. Hence, even if it
was used for residential purposes, it is still subject of a military
reservation. Remember that in your Land Title and Deeds, a
military reservation is not susceptible of being placed under the
operation of Torrens system. But, Homeowner’s Association applied
for the titling in their individual capacities.
ISSUE: W/N a land that is under a military reservation can be
subject to an application for titling.
RULING: NO
Titling of the property cannot be allowed. You should take judicial
notice of Proclamation 423 which the courts are mandated to do. It
is still part of a military reservation. In order for a parcel of land to
be part of the alienable land of public domain, there has to be a
declaration that the same is alienable and disposable. That’s the
only time that you can apply for titling under PD 1529. However, SC
said that application for titling (PD 1529), or the presidential decree
providing for lands covered under military reservation is a matter
cognizable by the court pursuant to Section 1 Rule 129. Hence the
same is within the realm of mandatory judicial notice.
However, take note of the case of ASIAN TERMINALS vs.
MALAYAN INSURANCE, where the SC said that not all exercises
of the executive power can be subject to mandatory judicial notice.
You need to distinguish what type of function is being undertaken
by the executive whether governmental or proprietary functions.
ASIAN TERMINALS vs. MALAYAN INSURANCE
April 4, 2011
FACTS:
In a case for damages, Asian Terminal was adjudged liable by the
RTC in an amount of P643, 600 for losses due to its mishandling of
cargo. Asian Terminal has management contract with Philippine
Ports Authority (PPA). The PPA does not conduct cargo and
stevedoring services but it enters into contracts in behalf of the
Government with private terminal operators who handle the cargo.
Asian Terminal wants to impress upon the court that it cannot be
held liable of P643,600.00 because Section 7.01, Article VII of the
Management Contract it entered into with PPA limits their liability
due to mishandling of cargo to P5,000 per package regardless of the
value of the cargo. Hence, the court should take judicial notice of
such contract because it is an official act of the executive
department of the Philippines through the PPA.
ISSUE: Whether or not the courts can take judicial notice of the
management contract as an official act of the executive department
of the Philippines
RULING: NO
The Management Contract entered into by Asian Terminal and PPA
is not a matter subject to mandatory judicial notice because it
cannot be considered as an official act of the executive department
of the Philippines. The contract was entered into by virtue of the
exercise of a proprietary function not a governmental function.
Hence, there is a need to distinguish the types of functions of the
Government:
1. Governmental function – subject to mandatory judicial
function as held in the case of Republic vs. South Side
2. Proprietary function – not subject to mandatory judicial
function as held in the case of Asian Terminals vs. Malayan
EXECUTIVE POWER OF CLEMENCY
Diba daghan man ug acts under executive clemency? Like pardon,
amnesty, stay of execution, etc.
But not all exercises of the President under his power of executive
clemency are subject to mandatory judicial notice.
PEOPLE vs. CASIDO March 7, 1997
Take note pardon is granted by the chief executive and as such it is a
private act which must be pleaded in court by the person being
pardoned because the court takes no judicial notice thereof.
However, amnesty by proclamation of the chief executive with the
concurrence of congress is a public act of which the courts should
take judicial notice.
Pag private act, not susceptible of mandatory judicial notice. Pero
pag public act gani, it is susceptible of mandatory judicial notice.
AMNESTY PARDON
Subject to mandatory judicial Not subject
notice
Need not be pleaded Must be pleaded
OFFICIAL ACTS OF THE JUDICIAL DEPARTMENT
These refer mostly to decisions and cases. An example would be the
Rules of Court. Courts should take judicial notice of the issuances
and the decisions rendered by the SC but not blindly because the
fact that the SC ruled a certain way, does not mean that it would be
the same decision all through out and to all cases of same nature. In
some cases, you still have to prove certain facts to determine
whether the doctrine laid down by the court would be applicable or
not.
The basis of taking judicial notice of such is because of:
Article 8 of the CC: Judicial decisions applying or
interpreting the laws or the Constitution shall form a part
of the legal system of the Philippines.
So, no problem in taking judicial notice if it is the SC because they
have the effect of law.
But for decisions of the lower courts,
General Rule: they are not given judicial notice. In
prosecuting a case for trial, generally, courts are not authorized
to take judicial notice of the contents of the records of other cases
even when such cases are pending in the same court and
notwithstanding that both cases may have been tried or are pending
in the same judge. But this however admits certain exceptions.
(REPUBLIC vs SANDIGANBAYAN)
Exceptions: Permissible judicial notice of records of lower courts.
As a matter of convenience to all the parties. When in the knowledge
of and absent of objection from the parties, reference is made to it
for that purpose and admitted as part of the record of the case then
pending, it can be taken a judicial notice.
Take note of these cases:
OCCIDENTAL LAND TRANSPO VS CA (1993): That there
should be an absence of objection, meaning both parties agree, as a
matter of convenience between two parties to treat the records of
another case as read into the records. Those are the two requisites
you need to remember: 1. absence of objection and 2. consent of the
parties
REGULUS DEVELOPMENT vs. DELA CRUZ (2016),
The SC took judicial notice of a case that was just decided between
the same parties and practically the same title. The SC did not even
continue to look at the facts anymore. It simply took judicial notice
that in that other case with a different general reference number,
they ruled already as follows.
ORDINACES
Ordinances are not included in the enumeration of matters covered
by mandatory judicial notice under Sec 1 Rule 129 of Rules of Court.
To simplify the rules:
1. When the MTC required to take judicial notice
a. A Municipal Trial Court is required to take judicial
notice of ordinances of the municipality or city where it
sits.
Example:
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
2. When the RTC required to take judicial notices
a. The RTC must take judicial notice of ordinances only
when required to do so by the statute such as charter of a
city.
If I’m not mistaken, the charter of Davao City has a
provision saying that all courts, operating within the
territorial jurisdiction of Davao City, are required to
take judicial notice of ordinances.
b. In the case of appeal before the RTC wherein the
inferior court took judicial notice of an ordinance
involved in the said case.
c. When an ordinance is already capable of
unquestionable demonstration.
Example:
The Non-Smoking Ordinance of Davao City. We were the
first to regulate smoking in the city. Where the ordinance
is more stringent than the national law. Before in Manila,
you can smoke almost anywhere. Now, in Duterte’s time,
you can only smoke if you go to the smoking areas. That is
one effect of an ordinance capable of unquestionable
demonstration.
(Shares further stories about how one can freely smoke
anywhere in Manila during the time he took the BAR.)
Gillian Grancho
Evidence
July 5 (2:06:01 – end)
There were five of us inside the taxi, Dean Inigo, Bobet Torreon and
3 debaters. Just imagine unya nag sigarilyo si Dean Inigo. Then
when he developed enfisema, that’s when he said that we should not
smoke anymore here in law school kay bawal.
Take note in the case of SJS v ATIENZA (2008), you cannot just
simply expect a court to take judicial notice of an ordinance. The
duty of the party, therefore, is to supply the court with a copy of the
ordinance if it wants the court to take judicial notice of it. That was
the warning of the Supreme Court (SC) in this case.
SJS v ATIENZA (2008)
FACTS:
Petitioners Social Justice Society (SJS) et.al. filed a petition against
Hon. Jose L. Atienza, Jr., then mayor of the City of Manila, to
enforce Ordinance No. 8027, reclassifying the Oil Depot in
Pandacan Terminal, from industrial to commercial area and to
cease and desist from operating their businesses from the date of
effectivity of the ordinance. Oil
companies, Chevron, Shell, Petron as well as DOE sought to
intervene and asked for the nullification of said ordinance.
(Issuance of said ordinances is said to be an exercise of police
power)
ISSUE: WON the Court should take judicial notice of the ordinance
RULING:
While courts are required to take judicial notice of the laws enacted
by Congress, the rule with respect to local ordinances is
different. Ordinances are not included in the enumeration
of matters covered by mandatory judicial notice under
Section 1, Rule 129 of the Rules of Court
Although, Section 50 of RA 409 provides that:
SEC. 50 Judicial notice of ordinances. - All courts sitting in the city
shall take judicial notice of the ordinances passed by the
[Sangguniang Panglungsod].
This cannot be taken to mean that this Court, since it has its seat in
the City of Manila, should have taken steps to procure a copy of the
ordinance on its own, relieving the party of any duty to inform the
Court about it.
Counsel should take the initiative in requesting that a trial court
take judicial notice of an ordinance even where a statute requires
courts to take judicial notice of local ordinances.
The intent of a statute requiring a court to take judicial notice of a
local ordinance is to remove any discretion a court might have in
determining whether or not to take notice of an ordinance. Such a
statute does not direct the court to act on its own in obtaining
evidence for the record and a party must make the ordinance
available to the court for it to take notice.
LAWS OF NATURE
A few more, we have here laws of nature, the case of PEOPLE V
MENESES (1998). In this case, what the SC took judicial notice of
was the fact that at around 3 in the morning during Christmas
season, it is still quite dark and that daylight comes rather late in
this time of the year.
There was an issue as to whether or not the identification by the
witness of the assailant was okay because of illumination. The
contention was that it was not really illuminated at that time. There
was no street light. And yet the witness positively identified the
assailant. So the court took judicial notice, there was no
illumination other than probably the sun. Pero diba ngit
ngit pani sya.
PEOPLE V MENESES (1998)
FACTS:
At around three o clock in the early morning of December 15, 1991,
thirty-three year old Cesar Victoria was stabbed to death while
sleeping with his seven-year old son Christopher in a rented
makeshift room in Tondo, Manila.
Christopher testified that he witnessed the stabbing of his father. He
testified that he went to his fathers rented makeshift room to
sleep.He further testified that he was awakened from sleep and saw
his father being stabbed in the heart with a veinte nueve. After the
assailant ran away, Christopher cried.
RULING:
We find that the trustworthiness of the identification of appellant by
Christopher is dubious, raising reasonable doubt in the mind of the
Court as to appellants culpability.
It was established that the crime took place in the wee hours of the
morning, before the crack of dawn, at around three oclock. The
court can take judicial notice of the laws of nature such as
in the instant case, that at around three in the morning
during the Christmas season, it is still quite dark and that
daylight comes rather late in this time of year .Nowhere in
the description of the crime scene by witness SPO3 Mendoza in his
testimony was it established that there was light or illumination of
any sort by which Christopher could see the attacker.:
The crime took place in a makeshift room measuring about three by
five square meters. While the room had a door, there was no
mention of a window which could have allowed entry of some kind
of light from the outside. It is highly improbable that a young boy,
just roused from sleep and his eyes adjusting to the unlit room,
could identify the attacker, much less identify the knife used, as
Christopher did, as a veinte nueve.
It was weird for me because when we were in our vacation in
summer, because in Kuala Lumpur, at 8 in the morning, it is still
dark. Murag alas 5 diri sa Pilipinas. It will be hours before the sun
come out. So maybe, taking judicial notice of sunrise-sunset and
everything, it should be taken on a case-to-case basis. You cannot
say that you can use People v Meneses as precedent for taking
judicial notice.
And now there’s this weird case of GABRIEL V CA (2004), so
what’s the story?
Very simple story, naay nagbangga and then, the witness upon
hearing the bangga, immediately went to the place kung asa ang
bangga and pag adto nya ngadto mao pa diay to pangbangga. In
other words, its the sound that came ahead of the actual collision.
So unsa na sya? Kilat og dalugdog?
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
GABRIEL V CA (2004)
FACTS:
There was a collision involving 3 vehicles. One witness, Brgy
Chairman testified that he was on the shoulder of the road, beside
the truck, when the first collision took place. From his vantage
point, his view was obstructed by the truck. He claimed to have first
heard the collision. He immediately took five big steps onto the
highway, and then saw the Beetle and the jeepney colliding.
ISSUE: Whether the testimony of Gonzales should be given
credence
RULING:
No. His testimony is essentially saying that the sound of the
collision took place before the actual collision itself. If true, this
would rate as one of the greatest scientific revelations of
all time. But since courts are obliged to take judicial notice
of the laws of nature, this Court prefers to side with
prudence.
The RTC also correctly pointed out that the natural tendency in such
case would be for Gonzales to have taken caution and avoid
exposure to danger. Instead, Gonzales, who was already on the
shoulder of the road, stepped into the highway and along the
possible course of the collision he claimed to have heard occurring.
The human mind may be less predictable than the physical laws, but
the conjunction of two unnatural occurrences at once is just too
much for this Court to believe but more than enough to taint the
credibility of Gonzales’ testimony
Kindly take note of the case of Republic v University of the
Philippines and Rosario (Jan 27, 2016). Take note of the ruling.
REPUBLIC AND THE UP vs. ROSARIO
(From 2017 TSN)
FACTS:
The title of UP over its Diliman campus had been put to question.
Rosario filed a case for reconstitution of lost title. Nagkataon that
the area that he intends to reconstitute is actually included in the
aggregate landholdings of UP Diliman University.
UP opposed alleged that Congress made a declaration under RA
9500 that the absolute ownership of the national university (UP)
over the landholdings in Diliman, Quezon City including those
covered by OCTs and TCTs in the name of UP and their future
derivatives is hereby confirmed. In several cases, it was ruled that
the title of UP over these lands had become incontrovertible so that
courts are precluded from looking anew into their validity. So the
UP is saying that there is a law and that should not be subject to the
titling of another person. There is a catena of cases already decided
by the SC which says that such land is owned by UP.
During trial, petitioner Rosario presented evidence for the
reconstitution of title. UP also presented its own evidence. It
presented its own title. So how then can you reconstitute a title
when a different title has already been issued covering the same
area. What the UP simply presented was certified true copiessigned
by its own record custodian. Normally, when you reconstitute titles,
you go to the ROD and have certified true copies issued by the ROD
or in the very least, present your own ODCT. The copy in the ROD
must be the same as that of the ODCT. Otherwise, it can’t be
recorded.
The RTC allowed the reconstitution in Rosario’s name. it reasoned
that UP failed to present a certified true copy from the ROD but
instead it presented a record issued by its own custodian.
ISSUE: Is the RTC correct?
RULING: NO
The RTC should not have allowed the reconstitution when it should
have taken judicial notice of the several cases cited by the SC and
even the statute saying that UP’s title over the land is already
incontrovertible.
Section 1, Rule 129 of the Rules of Court mandates that a court shall
and UP for presenting certified true copies of its titles
signed by its records custodian instead of either the
duplicate originals or the certified true copies issued by
the Register of Deeds of Quezon City. Indeed, the RTC and
the CA should have taken judicial notice of UP's title over
its landholdings, without need of any other evidence.
July 11 (start to 25:00) – Gillian Grancho
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. (1a)
You need to remember that Section 2 is so called discretionary
because, by its very nature, it depends solely upon the judgment of
the courts. It’s actually the court asking itself, “should I or should I
not take judicial notice of a particular fact?” Unless a matter falls
squarely within the ambit of Section 1, you cannot actually compel
the judge to take judicial notice of a particular fact. Because of that,
judicial notice under Section 2 cannot therefore be compelled by
mandamus.
What you need to remember in Section 2 are the requisites
1) The matter must be one of common and general
knowledge;
2) It must be well and authoritatively settled and not
doubtful or uncertain; and
3) It must be known to be within the limits of the
jurisdiction of the court.
Let’s go first to No. 3, “it must be known to be within the
limits of the jurisdiction of the court”
It simply means it is a matter which the court can take cognizance
of. It has to be within its limits, both power-wise and territory-wise.
“It must be well and authoritatively settled and not
doubtful or uncertain”
It simply means that there’s no contestation, everybody practically
knows about it, nobody disagrees with it
“The matter must be one of common and general
knowledge”
The concept of "facts of common knowledge" in the context of
judicial notice has been explained as those facts that are "so
commonly known in the community as to make it unprofitable to
require proof, and so certainly known x x x as to make it
indisputable among reasonable men." (Magdalo sa Para sa
Pagbabago v Comelec)
The key phrase that you need to remember is “unprofitable to
require proof”, wala kay ginansyahon kung mangayo kag proweba
aning butanga.
Example,
Anybody here not from Davao? (Mati) Anybody here born and
raised in Davao? (GSIS Matina)
I’d like to ask the both of you, where is Claveria St? (Everyone
knows)
Do you know that officially there is no Claveria St, it is CM Recto.
Yet we all know where it is. At the same time that there is no
Uyanguren St (where DCLA is), that is Ramon Magsaysay St.
But why is it that everybody knows about it?
It’s because it is one of common and general knowledge that it is
unprofitable to require proof that Claveria St and CM Recto St are
not the same. Wala kay maginansya kung imung i argue nga dili sila
one and the same, because they are one and the same.
Let’s go to this case; do you know who the front guy of this Magdalo
group is? It’s your favourite guy in the world, Senator Antonio
Trillanes. He is one who came into public lime light because of what
happen years ago on what is called, Oakwood Mutiny.
MAGDALO PARA SA PAGBABAGO VS COMELEC (2012)
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
the fact that Magdalo was the one responsible for the Oakwood
Mutiny. (2) It employed violence and unlawful means to achieve
their goals in the process defying the laws.
Magdalo contended that Comelec could not take judicial notice of
those facts, that comelec committed grave abuse of discretion in
denying their registration since it based not on the basis of facts or
reliable records of facts but on mere speculation and conjectures.
ISSUE: Was the Comelec correct in taking judicial notice,
without requiring proof, of the fact that Magdalo a non-registrable
political entity and therefore could not be given status as a
registered political party
RULING: YES. Comelec is correct in taking judicial notice of the
disqualification of the Magdalo
This Court has, in a string of cases, already taken judicial notice of
the factual circumstances surrounding the Oakwood standoff. That
the Oakwood incident was widely known and extensively covered
by the media made it a proper subject of judicial notice.
Thus, the COMELEC did not commit grave abuse of
discretion when it treated these facts as public
knowledge, and took cognizance thereof without
requiring the introduction and reception of evidence
thereon.
Ultimately, they wanted the President and the top officials of the
AFP and PNP to resign. To achieve these goals, Magdalo opted to
seize a hotel occupied by citizens, marched in the premises with
complete gear, ammunitions and plant explosives in the building.
These brash methods used by the Magdalo to air its grievances
constituted clear acts of violence.
What is this judicial notice that we are talking about here?
Definitely, it is not one which falls under the realm of mandatory
judicial notice. No, it does not constitute a mandatory nature of
judicial notice.
Rather, it falls under Section 2. Its upon the discretion of
the tribunal to treat a certain fact as admissible on the
ground that it is of common and general knowledge
unprofitable to require proof. Discretion sa Comelec, whether
or not taking judicial notice of the particular fact and so denying the
application of the registration of Magdalo.
However, the SC also took judicial notice of the grant of amnesty in
favor of the soldiers. If you remember in the case of Casido, there is
a huge difference between pardon and amnesty. Remember that
pardon is a private act of the Chief Executive of granting clemency
to the convicted offender. But when you talk about amnesty, it is a
public act with the concurrence of the Congress which the court
should take judicial notice of.
The SC said: However, in view of the subsequent amnesty granted in
favor of the members of MAGDALO, the events that transpired
during the Oakwood incident can no longer be interpreted as acts of
violence in the context of the disqualifications from party
registration.
So this is the way we are as Filipinos, we elected him as a Senator.
Nag mutiny na nga. Look what he’s doing now against this Duterte
administration that we belong in. Show of hands, pogi ba si
Trillanes?
STATE PROSECUTORS VS. MURO talks about foreign
exchange restriction where you’re not supposed to carry so much
dollar currencies. The judge dismissed 11 cases against Imelda
Marcos for violation of central bank restrictions. The dismissal was
based solely on newspaper accounts of lifting of foreign exchange
restrictions.
So, cases where pending and here comes the judge advanced sya
mag huna huna. He thought they’re going to lift it anyway, so he
dismissed the cases. So it __ the prosecutor saying, “Is it official”?
The SC said it’s wrong. The mere personal knowledge of the
judge is not the judicial knowledge of the court, and he is
not authorized to make his individual knowledge of a fact,
not generally or professionally known, the basis of his
action. Judicial cognizance is taken only of those matters
which are "commonly" known. .
requirements before a court can take judicial notice of a
fact.
STATE PROSECUTORS VS. MURO (1994)
(from 2016 TSN)
FACTS:
On August 13, 1992, respondent judge issued an Order dismissing
eleven (11) cases. The Judge issued his Order solely on the basis of
newspaper reports (August 11, 1992 issues of the Philippine Daily
Inquirer and the Daily Globe) concerning the announcement on
August 10, 1992 by the President of the Philippines of the lifting by
the government of all foreign exchange restrictions and the arrival
at such decision by the Monetary Board as per statement of Central
Bank Governor Jose Cuisia
ISSUE:
W/N the Judge was correct in taking judicial notice of the supposed
lifting of foreign exchange controls which appeared in a newspaper.
RULING:
NO. The doctrine of judicial notice rests on the wisdom and
discretion of the courts. The power to take judicial notice is to be
exercised by courts with caution; care must be taken that the
requisite notoriety exists; and every reasonable doubt on the subject
should be promptly resolved in the negative.
Generally speaking, matters of judicial notice have three material
requisites: (1) the matter must be one of common and general
knowledge; (2) it must be well and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to be within the
limits of the jurisdiction of the court. The provincial guide in
determining what facts may be assumed to be judicially known is
that of notoriety. Hence, it can be said that judicial notice is limited
to facts evidenced by public records and facts of general notoriety.
To say that a court will take judicial notice of a fact is merely
another way of saying that the usual form of evidence will be
dispensed with if knowledge of the fact can be otherwise acquired.
This is because the court assumes that the matter is so notorious
that it will not be disputed. But judicial notice is not judicial
knowledge. The mere personal knowledge of the judge is not
the judicial knowledge of the court, and he is not
authorized to make his individual knowledge of a fact, not
generally or professionally known, the basis of his action.
Judicial cognizance is taken only of those matters which
are "commonly" known.
Things of "common knowledge," of which courts take judicial
notice, may be matters coming to the knowledge of men generally in
the course of the ordinary experiences of life, or they may be
matters which are generally accepted by mankind as true and are
capable of ready and unquestioned demonstration. Thus, facts
which are universally known, and which may be found in
encyclopedias, dictionaries or other publications, are judicially
noticed, provided they are of such universal notoriety and so
generally understood that they may be regarded as forming part of
the common knowledge of every person. Respondent judge, in the
guise of exercising discretion and on the basis of a mere newspaper
account which is sometimes even referred to as hearsay evidence
twice removed, took judicial notice of the supposed lifting o foreign
exchange controls, a matter which was not and cannot be
considered of common knowledge or of general notoriety. Worse, he
took cognizance of an administrative regulation which was not yet
in force when the order of dismissal was issued. Jurisprudence
dictates that judicial notice cannot be taken of a statute
before it becomes effective. The reason is simple. A law
which is not yet in force and hence, still inexistent, cannot
be of common knowledge capable of ready and
unquestionable demonstration, which is one of the
requirements before a court can take judicial notice of a
fact.
(Recit and on why it is helpful to memorize)
Dili muundang ang huwes sa imoha ug muingon nga “naa kay
objection?”
Remember that if you fail to object in court because you hesitated,
the objection is already waived. Every exclusionary rule, you have to
 EVIDENCE
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
rule. So there is method to this menace. You will know that when
you take the bar exams.
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. (n)
Let’s go over to the different types of judicial notice.
- Mandatory judicial notice
- Discretionary judicial notice
- Judicial notice, when hearing necessary
Assume that you are the judge, the tribunal and you are presented
with the fact and all that you have to do is determine whether it falls
within the realm of judicial notice.
Why? Because you would want to know if maybe there is no need to
prove this so trial might be hasten a little bit if you no longer require
the parties to prove a particular fact.
If you’re the judge, what are you going to do? Refer it first to Section
1. Is it an object of mandatory judicial notice such that no proof is
already required? Me as judge, have to accept it and no longer
require proof of it because it falls under Section 1.
Or if it doesn’t fall under Section 1, it might fall under Section 2.
JULY 11, 2018 25:01 – 55:00 - Kemarie L. Manligoy
Is it an object of mandatory judicial notice such that no proof is
required? Me, as judge, would have to accept it and not require
proof of it because it falls under Section 1 or if it does not fall under
Section 1, it might fall under Section 2 and you’ve memorized
Section 2 and you know the requisites. The matter must be one of
common or general knowledge. Does it fall within Section 2?
Now, failure of a particular fact to satisfy all the requirements under
Section 2 might be under Section 3 because it could be the fact that
maybe it’s quite known but is it commonly or generally known? Is
there anything to be claimed by requiring proof of such a fact?
oKay? So, if it does not fall under Section 1 and it doesn’t fall as well
to Section 2, probably, there might be reason to take judicial notice
of it and apply Section 3. So, the court in its own initiative or upon
request of a party can actually announce its intention to take judicial
notice of a fact requiring the parties to be heard thereof.
Naay hearing and to my mind, that is repugnant to the concept in
nature of judicial notice by itself. Ngano? Very simple. When you
take judicial notice, what do you do? You don’t require proof
anymore, right? Right? You are not going to tell the parties, okay,
“here’s a particular fact. You submitted it, now prove it!” You don’t
require the party to prove it anymore. How do you prove it? By
presenting evidence. There’s no hearing when it comes to judicial
notice but when it comes to Section 3, it’s precisely the opposite of
that.
Take note that judicial notice is taken of a fact only after the parties
are heard of the issue of whether or not the court should take
judicial notice. So, the parties have to convince the court that “yes
judge, you have to take judicial notice” and the other party would
also say “No, it’s not a matter of common and general knowledge.
So, what the judge would do, therefore, to encourage the parties to
just stipulate. Admit nalang if anybody want to admit the existence
of a particular fact to be true. But if the parties do not stipulate, then
the court should now conduct a hearing on the matter under the
same procedures as hearings on motions and oral arguments. And I
am sure that you have discussed the requirements of hearings,
motions in your civil procedure and one of those requirements
would be “unsay dapat pakapin sa isa ka motion”. So, accompanied
by supporting affidavits and other papers.
Supporting affidavits is what? Documentary evidence or testimonial
of evidence na na siya? It’s precisely it. It is repugnant to the
principle of judicial notice when you require the parties to be heard.
Well, that’s my opinion anyway.
What else is repugnant to the concept of judicial notice? Autoptic
reference.
When you say autoptic reference, for example, appearance or
physical condition is admissible in court as object evidence, the
same being addressed to the senses of the court. And when an object
is relevant to the fact in issue, it may be exhibited to or examined or
viewed by the Court.
So now, you are asking the Court because you have there the victim
for example, in a rape case, a minor girl. And then you are asking
the court to say, “Your honor, can you state judicial notice of the fact
that the victim here, the private complainant, is a minor because of
her appearance.”
Can the Court take judicial notice of that? The court in considering
whether or not to take judicial notice, what will it do? The court will
have to look at the victim. Is the victim really a minor by her looks?
And when the court does that? What is the court doing? It’s
receiving. It’s using its senses and in so doing it is actually
conducting a reception of evidence which is again repugnant to the
concept of judicial notice.
When I ask you, how old I am, so, kung isipun nimo, when you look
at the person to determine his age, are you taking judicial notice or
not? NO. You are conducting a reception of evidence and therefore,
the Court cannot take judicial notice of age as evidence by looking at
person’s appearance. So, when the trier of facts observes the
appearance of a person to ascertain his or her age, it’s not taking
judicial notice of such fact. Rather he is conducting an examination
or reception of the evidence, the evidence being the appearance of
the person. Such a process militates against the very concept of
judicial notice, the object of which is to do away with the
presentation of evidence.
You need to read this case, Landbank vs Wycoco, January 30,
2004 where the Supreme Court said that in determining just
compensation, the courts cannot simply take judicial notice of the
prevailing market value of agricultural lands. Let’s say for example,
it’s land expropriated, subjected to coverage of the Comprehensive
Agrarian Reform Law, the Court cannot just take judicial notice that
agricultural lands on these areas are valued this way. No! There has
to be a hearing being conducted and Landbank in that hearing is an
indispensable party. That’s what Landbank vs Wycoco is all about.
To my mind again, repugnant gihapon na siya sa concept of judicial
notice.
J
UDICIAL ADMISSIONS
Now, let’s go to judicial admissions.
Section 4. Judicial admissions - An admission, verbal or
written, made by a 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.
Just to define judicial admission or an admission en judicio, it is a
deliberate, clear, unequivocal statement by a party about concrete
facts within that party’s knowledge. It is a formal concession in the
pleadings or stipulations by a party or counsel that is binding on the
party making them. Although a judicial admission is not itself
evidence, it has the effect of withdrawing a fact from contention.
Now, when is a fact in contention? Only if a plaintiff and the
defendant don’t agree about it. None of them would concede.
According to A, it is true; according to B, it’s false. So, they are in
contention. Naga-argue pa sila. But if A for example admits, then it
is withdrawn from contention. B, for that point, has already won.
For that point because A has conceded a fact. B, has already proven
the point, right? And it has the effect of no longer requiring proof of
a particular fact. The latin maxim to remember would be (latin)
admission during trial is stronger than all proof. “You don’t have to
memorize the latin maxim.
Sources of Judicial Admissions
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
It was repeated in the case of Adolfo vs Adolfo, March 18, 2015,
where you are also to take note the difference between judgment on
the pleadings and summary judgment. The difference between “it
tenders no issue” and “no genuine issue”. I’m sure you know that
from your Civil Procedure.
Now, admissions can be made on the pleadings. Admissions can be
made both in the initiatory and responsive pleadings. For example,
in the complaint, the defendant Geronimo contracted a loan with
the plaintiff Sarah. While defendant had paid the first five
installments, all the succeeding installments remained unpaid.
So, in a complete answer, pwede kang mag-admit. What are you
admitting here? That kadtong first five installments, nabayaran na
nimo and for the succeeding installments, wala pa. Okay? So, what
will be the effect of that upon the defendant when he makes his
answer? He doesn’t have to refute anymore. It’s already admitted.
He doesn’t have to prove anymore that he has paid the first five
installments and so ang remaining installments nalang ang dapat
niya i-refute or to defend against.
What about in an answer? The defendant admits the allegations
contained in paragraph 1 and 2 of the complaint in as much as they
merely allege the personal circumstances and capacities of the
parties.
Usually man gud in an answer or in a complaint, paragraph 1 would
state the personal circumstances of the plaintiff. Plaintiff, of legal
age, Filipino, etc. blah blah , where he may be served with
summons, notices of the adverse party and the honorable court.
Paragraph 2 would be “Defendant, of legal age, Filipino, etc. blah
blah blah and then address where he may be served with summons
and orders from the court.” Inana lang na siya.
So usually, the 1st paragraph in an answer would merely be an
admission. What’s the effect of that? What would be the effect if the
defendant admits the allegations contained in paragraphs 1 and 2,
the personal circumstances of the parties. So, he is admitting that
the party is of legal age, and presumably has the capacity to sue
based on age because otherwise, he would qualify his admission by
saying that, he may be of legal age but because he was already
convicted and imposed the penalty of civil interdiction, he is not in
full possession of his civil personality. Pwede ka magqualify but he
did not do that. So it means that the capacity to sue of the plaintiff
has already been admitted. He cannot anymore contradict that in
the future and more so, the defendant by admitting his own
personal circumstances cannot later on say, “Oi, there was improper
service of summons upon my person because it was served at the
wrong address.” You cannot say that anymore because you already
admitted your personal circumstances which includes his address
where he can be served with summons and notices coming from the
honorable court. Diba? That’s the effect of an admission. It may be
…but if you look at it, there’s a lot of legal ramifications.
Another example, Rule 8 Section 8, how do you contend actionable
document? What is an actionable document? Actionable document
is the document which is the very basis of a party’s cause of action
or defense.
An example there would be a promissory note. What’s your cause of
action? To collect an unpaid loan. What’s your actionable
document? Your promissory note. So, how do you plead it? You
have two options right? You can either retype it in full or you can
attach it and make reference to it. That’s how you plean an
actionable document and you have to plead it under oath. Now, how
do you contest it?
The genuineness and due execution of the instrument shall be
deemed admitted unless the adverse party under oath specifically
denies them and sets forth, what he claims to be the facts but the
requirement of an oath does not apply where the adverse party does
not appear to be a party to the instrument or when compliance to an
order for the inspection of the instrument is refused.
What do I want to point out in Rule 8, Section 8? You have to
contest an actionable document a certain way in the same vein that
you can only plead an actionable document a certain way. Now,
what will be the effect if you fail to contest an actionable document a
certain way? There is an implied admission of the genuineness and
due execution and therefore, if you fail to follow the requirements of
Rule 8, Section 8, what will happen? You can no longer contest or
say that “kining document na ni is fake or that it was executed
wrong or infirm in form because you already admitted the
genuineness and due execution of the instrument.
court. And then when is the defendant required to file an answer?
Upon receipt of summons. And then after that, what happens? The
plaintiff, after receiving an answer, is he mandated to file a reply?
NO because a reply is merely optional that if you fail to file a reply,
all the new matters alleged in the answer are deemed automatically
admitted.
Here’s one case, Cassette Realty vs Philbanking
Corporation, September 14, 2007, where the Supreme Court
said, since the respondent failed to file a reply, the respondent in
effect admitted the genuineness and due execution of the said
documents. Why? Because of Rule 129 Section 4, it is considered a
judicial admission. Huh? Diba optional lang man ang filing of a
reply? Isn’t it that the filing of a reply is merely optional? So, why?
Let’s go back to Section 10 on kinds of pleadings. The definition of a
pleading or the function of which is to deny or allege facts in denial
or avoidance of new matters alleged by way of defense in the answer
and thereby join or make issue as to such matters. If the party does
not file such reply, all the new matters alleged in the answer are
deemed controverted. So, again there’s that effect of automatic
admission. Nakalimtan na ba sa Supreme Court that the filing of a
reply is merely optional? NO! Section 8 specifically applies to
actions or defenses founded upon a written instrument and provides
the manner denying it. It’s more controlling than Rule 6 Section 10,
which merely provides the effect of failure to file a reply. Thus where
the defense in the answer is based on actionable document, a reply
specifically denying under oath must be made. Otherwise the
genuineness and due execution of the document will be deemed
admitted.
So here in Cassette Realty vs PhilBanking Corporation,
where the Supreme Court said that the filing of a reply is
mandatory. If you want to avoid the effect of implied or automatic
admission of the genuineness and due execution of an actionable
document.
What else? Rule 8, Section 11. Material averments in a complaint
other than those to the amount of unliquidated damages shall be
deemed admitted when not specifically denied. Meaning? General
denial and remember that under the rule on pleadings, general
denial is an admission. It constitutes an admission.
So, what was I forced to do considering that after a reply, there was
supposed to be no more pleadings allowed? How do you contest
that? How do you now counter-act upon this mind-conditioning
upon the judge? They say that the proper pleading to file would be a
rejoinder to the reply. But, I don’t believe in a rejoinder. Wala mana
sa Rules of Court ang rejoinder. So, what did I file? A comment to
the reply because a comment can always be allowed. It’s like a
manifestation before the court.
What else? Effects of amendments to pleadings, if you recall? An
amended pleading supersedes the pleading that it amends.
However, admissions in superseded pleadings may be received in
evidence against the pleader and claims and defenses alleged
therein not incorporated in the amended pleading shall be deemed
waived. So, diba remember there’s a big difference between
amended pleadings and supplemental pleadings? When you talk of
supplemental pleadings, they exist side by side with the pleading
that they supplement. When you talk about amended pleadings, it
supersedes, it abrogates the pleading which it amends.
So let’s say for example you made an admission in your answer but
you amended your pleading as a matter of right, when can you do it?
Within the period for filing a reply for as long as no reply has been
served upon the defendant. You can amend your answer as a matter
of right. Right?
Now, you changed your theory of the case. So before, you admitted
that Yes, there was a debt that I contracted. Nangutang ko sa
plaintiff but he already condoned it. So, you had your original
answer and now, because amendment is still a matter of right, no
reply has been filed, you changed your theory. You changed your
defense. Now, your defense is “I don’t know the plaintiff. I have not
contracted a loan with the plaintiff.”
July 11, 2018 55:01 Lara Delos Santos
Who in the blue hell is the plaintiff? So now it’s complete denial. So
what happens to the defenses that he made?
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
So they may no longer be considered as judicial admissions but they
are now, extra-judicial admissions that can be admitted in court,
provided, they are properly pleaded and proved by the adverse
party. Kinahanglan nimo iplead and iprove siya.
VERBAL OR WRITTEN ADMISSIONS
Now what about during trial?
It could be verbal or written.
A verbal judicial admission could take the form of a
manifestation or testimony in court.
A written judicial admission could be in the form of motions,
written manifestations, briefs, memoranda, affidavits, and even in
the submission in answer to a request for admission.
ADMISSIONS IN OTHER STAGES OF THE CASE
1. Pre-trial where admissions and stipulations of facts are
mandatory subjects of pre trial
2. Availment of discovery procedures before trial, or pending appeal
such as:
•Depositions
•Request for admission
•Physical or Mental examination of persons (modes of discovery)
Depositions cannot serve as a substitute for testimony in court. The
deponent must be actually brought again in court, as a general rule,
for his testimony to be admitted. In effect, he has to re-testify. But
be mindful of the instances where the deposition itself is considered
as testimony.
CONSTANTINO VS. HEIRS OF CONSTANTINO
Judicial admissions are legally binding on the party making the
admissions. Pre-trial admission in civil cases is one of the
instances of judicial admissions explicitly provided for under
Section 7, Rule 18 of the Rules of Court, which mandates that the
contents of the pre-trial order shall control the subsequent course
of the action, thereby, defining and limiting the issues to be tried.
So if you make confessions during pre-trial, that’s very good. Why?
Because the court doesn’t have to expect proof of a matter that has
already been admitted. And remember the effect as well that –
Admissions made are binding upon the parties who made them.
Now take note that, a party who makes a judicial admission, you
cannot later on challenge that cause that constitutes as a waiver of
proof. Your ability to prove or disprove something is waived.
Production of evidence is dispensed with. A judicial admission also
removes an admitted fact from the field of controversy.
In other words, what’s the effect of the rule?
Judicial admissions are conclusive on the party making them. When
you make an admission, you cannot refute that admission anymore,
Let’s look at an example here:
A plaintiff sued the defendant for collection of sum of money. The
defendant denies the existence of the debt and counters that it was
her deceased parents who owed the plaintiff money when they were
alive. Therefore, according to the defendant, what the plaintiff
should have done is to sue the estate of her parents rather than sue
her in her personal capacity as heir.
However, during the trial, the following cross examine took place:
Lawyer: you also know that the respondent was into lending?
Accused: Yes, madame.
Lawyer: Because she is in lending, you have borrowed money also?
Accused: Yes, madame.
Lawyer: Separate from your father?
Accused: Yes, madame.
Lawyer: You borrowed money from the respondent separate from
your father prior to his death?
ODIAMAR VS VALENCIA
Having admitted that she obtained loans from respondent without
showing that the same had already been paid or otherwise
extinguished, petitioner cannot now aver otherwise.
It is settled that judicial admissions made by the parties in the
pleadings or in the course of the trial or other proceedings in the
same case are conclusive and do not require further evidence to
prove them. They are legally binding on the party making it, except
when it is shown that they have been made through palpable
mistake or that no such admission was actually made.
SANTIAGO VS DELOS SANTOS
An admission cannot be controverted by the party making such admission an
are conclusive as to him and that all proofs submitted by him contrary thereto
inconsistent therewith shall be ignored whether objection is interposed.
That is why I told you, admission during trial is stronger than all
proofs.
Take note of the requirement that for it to qualify as a judicial
admission, it must be made in the same case.
REPUBLIC GLASS VS QUA
To constitute a judicial admission, it must be made in the same case
in which it is offered. If made in another case or court, the fact of
such admission must be proved as in the case of any other fact.
Although, if made in a judicial proceeding, it is entitled to greater
weight.
Let’s say for example:
In Branch 1, you have a case between A and B. In Branch 2, you also
have another case also between A & B. In the case in Branch 1, A
made an admission against his interest to favour B. Can B use that
in his case in Branch 2?
He can use it in Branch 2 but not in the concept of judicial
admission.
What will you do if you are the lawyer of B in Branch 2 and you want
to use the admission of A in Branch 1?
Secure a copy of the transcripts of stenographic notes where your
opponent made the admission. Plead it and prove it before Branch
2. It is an extrajudicial admission in so far as Branch 2 is concerned.
It can only be considered as judicial admission if you are talking
about Branch 1. Get a piece and prove it.
Do you need to present the staff who made the stenographic notes?
No. Because of presumption in the regularity of transcripts of
stenographic notes. In effect, it’s self-authenticating. It is also strong
proof that it was made in a judicial proceeding.
EXCEPTIONS:
Admissions may be contradicted only by showing that it was made
through palpable mistake or that no such admission was made.
“MADE THROUGH PALPABLE MISTAKE”
What do you mean by palpable? It means it is obvious to everybody,
to both sides. Like the plaintiff would not concede it as an
admission, the defendant would not concede it as an admission, the
judge too could see that there was really no judicial admission
made.
Take note that under the OLD RULES OF EVIDENCE, this is the
only exception to the rule that a judicial admission binds the parties
making them.
ATLAS CONSOLIDATED MINING VS CIR
In the present case, the supposed mistake made by the counsel of
petitioner corporation is one of law, for it was grounded on his
interpretation and evaluation that Revenue Regulations No. 3-88
and CTA Circular No. 1-95, as amended, did not apply to his
client's cases and that there was no need to comply with the
documentary requirements set forth therein.
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

conviction. Inadmissible daw. The SC here ruled: True. A pretrial

“NO SUCH ADMISSION WAS MADE”
Meaning it’s just that the other party is saying that you have made
an admission. Like my old case before, the counsel kept saying
“Thank you for admitting…. Thank you for admitting…” when in
fact, I didn’t. So what doctrine is that? The buot buot doctrine. LOL
So what this is is that you are now saying I did not make an
admission or that the statement was taken out of context or not in
the sense that the admission is made to appear as in the case of…
ATILLO III VS CA
agreement not signed by the accused and counsel is inadmissible.
However, the conviction was based not on the agreement but on the
documents presented as evidence during the trial, all of which was
presented without any objection from her counsel.
General Rule: Fule. Inadmissible because it was unsigned,
But what the prosecution did was to submit the documents for the
consideration of the court. All documents that would create fact of
guilt beyond reasonable doubt. So these were admitted by the court.
And the counsel of the accused failed to object. What happens if you
fail to object? Your client loses.

If a party invokes an admission of an adverse party but cites the So what’s the difference between King and Fule?
admission out of context, then the one making the admission may
show that he made no show admission or that the admission was In Fule, that was all the evidence of the prosecution. But in King, the
taken out of context. This may be interpreted to mean not in the documents that were presented without any objection from the
sense in which the admission is made to appear that is the reason accused’s counsel already sufficed to establish the guilt of the
for the codifier “such”. accused beyond reasonable doubt even without the unsigned
confession.
Take note that an admission made by the counsel is binding upon
the client. So like in my example earlier, my fellow officemate,
where to be safe, he would not admit anything, even the name of his
client. Why is that? Because anything that you say would bind the
client. So you have to proceed with caution every time. And when
you make an admission of something, consult your client first. Ask
him if it is okay if we admitted this because if we do, these are the
legal consequences.
This for me is an important case: FULE DOCTRINE

FULE VS CA

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

case what happened here was of course, stipulation of facts. Then
what if the accuse admits or stipulates as to the existence of certain
facts and the effect of that would be for him to make a confession or
an admission of his guilt in the criminal case. Can he be convicted
based on confessions or admission? Of course, you can. In fact, a
mere extrajudicial admission together with the corpus delicti would
be sufficient to warrant a conviction.

What happened here was, there was a pre-trial agreement. In a

criminal case, you are allowed to secure from the accused a
confession pursuant for example to a Plea Bargaining Agreement.
Let’s say you committed serious physical injuries and ingon ani ang
penalty. But, if you plead guilty tp slight physical injuries or
maltreatment only then, ito nalang. Plead guilty ka nalang para di
na tayo mag trial. That’s plea bargainin. Now if he agrees, confess to
the commission of slight physical injuries, in effect, he is free to go if
he is a first time offender. Pwede ka ma place under probation or
ma-fine because it is a very light offense. Now, if that was made
durng the pre-trial conference in a criminal case, it has to be signed
by the accused and his counsel because if there is no signature of the
accused and his counsel, the n the stipulation of facts, the
confession made by the accused, becomes inadmissible. That’s the
Fule Doctrine.

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

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

All agreements or admissions made or entered during the pre-trial

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

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

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

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

happened in King and in Fule.
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
July 18, 2018 1:00:00 – 16:00:00 (Alexander Abonado)E
RULE 130
RULES OF ADMISSIBILITY
So we are going to talk about Rule 130 already, admissibility of
objects and documents.
Let’s talk about sections 1 & 2 first. Take note we classified evidence
before in three, namely: object, documentary and testimonial
evidence.
When you talk about object or real evidence, you are talking about
evidence that is addressed to the senses of the court. These are
evidence which are exhibited to, examined or viewed by the court.
Take note that while the law talks about being viewed by the court
ang object evidence. We are talking here about all the senses of the
court. Whatever the court sees, like a scar that is visible, let’s say sa
face sa usa ka victim. Whatever the court hears; for example, a
taped blackmail call. That would be appreciated by the courts sense
of hearing.
Or sense of taste; like cocaine, and the court is not convinced that
it’s cocaine, so the court will taste. Sense of touch; example, girl was
raped because she has big jugs, so the court will touch to determine
if she really has big jugs. (LOL) Sense of smell; Indians, mao ra jud
na akong maingnon sa inyo.
We are talking here about all of the senses of the court and that is in
the appreciation of object evidence the court uses the senses of
sight, touch, hearing, taste and smell.
Take note that it is called real evidence not to contrast it with real
and fake. But rather real because it comes from the term res, or the
thing. Res ipsa loquitur. The thing speaks for itself.
So its res. It’s an object. It’s the thing or the object that is addressed
to the senses of the court.
We have also discussed from the case of People v. Lavapie, the
different types of evidence and what appears to be a hierarchy, a
preference among the different types of evidence and which one the
court actually prefers.
So the court actually prefers object, real or physical evidence as
evidence of the highest order because it speaks more eloquently
than a hundred witnesses.
Then later on the court also made the preference between
testimonial and documentary evidence in the case of GSIS v. CA.
Noted that between testimonial and documentary evidence there is
really very little room for choice. But between the two it is
documentary that prevails over testimonial.
Between oral and written testimony, mas naay preference ang oral
testimony in court because there is flexibility on the part of the
questioner to adapt his questions to elicit the truth and in order to
ferret out the certain answer.
Informally there is a fourth class of evidence recognized by the
rules, we call that demonstrative evidence or evidence in the form of
objects that have for themselves no probative value but is used to
illustrate and clarify a factual matter or issue.
Demonstrative evidence as evidence is not prohibited, although not
specifically mentioned in the rules of court. In appreciating
Demonstrative evidence the court uses the same five senses. But
more importantly, applies intelligence to draw conclusions or
inferences from the objects presented. Thus for Demonstrative
evidence what is important is not the object but the information that
the objects create.
Recall my example on Demonstrative evidence; I call that the case
of the flying man. Nabangaan siyag motor and according to his
testimony, he flew to a distance of 50 meters. And so it’s quite
improbable for somebody na nabangaan ug motor ug nilupad ug 50
meters. So in order for me to impress upon the mind of the court
that my witness is not lying/sane.
I had to resort to a rudimentary diagram, and asked the witness to
point that if diri ka nabangaan asa man ka nakit-an pagkahuman
nimo nalagpot.
impact. Rather than the completely incredible and almost
miraculous 50m, which is again very very far away.
How do we distinguish between real and demonstrative evidence?
Real evidence is a tangible object that actually takes some role in the
matter that gave rise to the litigation. Like a gun or a knife. While a
Demonstrative evidence is tangible evidence that merely illustrates
a matter of importance in the litigation.
Real evidence intends to prove that the object is used in the
underlying event. The knife that was used to stab the complainant,
fortunately the complainant survived. Demonstrative evidence on
the other hand, intends to show that the demonstrative object fairly
represents or illustrates what it is alleged to be illustrated.
Note that with respect to real evidence, the evidence is the object
itself. But when you talk about Demonstrative evidence, although
using an object to illustrate a matter before the court, the evidence
to be considered there is the testimony as elicited by the
demonstrative evidence.
Like in a map or a diagram or a chart. So what is the evidence that
the court will consider there? It’s the testimony that comes from the
demonstrative object.
Let’s go to section 1. What is object 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
The court also calls real or object evidence as Autoptic Preference, it
simply means, a tribunals self-perception or autopsy of the thing
itself.
In the case of Balingit v. CA (Feb. 9, 2007) what the court was still
discussing would be kana bitaw mga election rules that I suppose
would no longer or no longer applies right now considering that we
change into automated elections. But before you have these rules on
the appreciation of ballots, which to my mind would no longer bear
any importance in elections where mag shading na lang ta. But sa
mga dili pa automated/ mag suwat gihapon ka, the dem sonams
rule (sounds like) mag apply gihapon na siya.
Autoptic means seeing with one’s own eyes. Coming from the words
“auto” and “optic” meaning self and then pertaining to the eyes or
belonging to or connected with personal observation which is
related to the term autopsy.
One case that you really need to be familiar with, not because it’s
useful only in my subject but because it’s useful also sa subject ni
madam: Calde v. CA
It’s a succession case. June 7, 1994.
Here there is a notarial will. And remember that in a notarial will
there is a requirement that witnesses should sign in the presence of
one another. Here 2 of the witnesses testified that only 1 pen was
used in the signing of the will. There’s also no mention that the pen
was that hybrid pen which has all the colors.
Now only 1 pen was used, but how come, the court noted, by using
autoptic preference, by using self-observation that there were 2
colors of pen used. There’s black and then there’s blue.
According to the testimony of the witnesses – 1 pen was used.
According to autoptic preference – there were 2 pens, black and
blue. What would prevail?
According to the court, apparently because there were 2 colors of
pen here, the notarial will was not subscribed and attested by the
instrumental witnesses during the execution (?)
The signatures of some of the attesting witnesses were written in
blue ink while the others were in black. This discrepancy was not
explained by the petitioner. Nobody of the 6 witnesses testified that
2 pens were used by the signatories of the 2 documents. In fact of
the petitioner’s witnesses even testified that only 1 ball pen was used
in signing 2 testamentary documents.
And the SC proceeded now to describe what autoptic preference is.
That the person who is of small height or is of dark complexion, as
to such matters the perception of the tribunal that the person is
small or large or that he has dark or light complexion is a mode
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
It is the tribunal’s self-perception of autopsy of the thing itself, from
the point of view of the litigant party furnishing the source of relief,
it may be termed as autoptic preference.
And in this case the autoptic preference contradicts the testimonial
evidence produced by petitioner. The will and its codicil upon
inspection by respondent show in black and white or more
accurately in black and blue that more than 1 pen was used by the
signatories thereto. Thus it was _____(15:40) nor baseless for the
court to disbelieve petitioner’s claim that both testamentary
documents in question were subscribed to in accordance with the
provisions of article 805 of the civil code.
So the SC was actually saying, “nagpataka mo.”
0:16:01- 0:32:00 (Angel Deiparine)
You did not actually subscribe and attest to the will in one occasion.
Coz you were saying, only one pen was used. But actually, duha ka
pen. So, with that, the will was not admitted.
Let’s compare that with documents. I’m sure you have memorized
Section 2.
Section 2. Documentary evidence - Documents as
evidence consists of writings or any material containing
letters, words, numbers, figures, symbols or other modes
of written expressions offered as proof of their contents.
Now, what you need to really pay attention to is the last phrase,
“offered as proof of their contents”.
They must be presented into evidence for the consideration of the
court, not to prove that this paper is white in color or that it is
rectangular in shape, but you have to offer it for what is written on
the document. That is what Section 2 is all about.
With that, I propose to you one thing: A document is not necessarily
paper, and paper can also be treated as object.
Case: The Last Will of Cecil George Harris (Canadian case)
In 1948, around 10 in the morning, Harris accidentally put his
tractor in reverse while making adjustments thereto. The tractor
moved backwards and trapped Harris between the tractor and
another piece of equipment, pinning his left leg under the xxx.
Naipit siya. Harris remained trapped until 10:30 in the evening. So
that is, 12 hours already before he was found by his wife. He was
taken to the hospital where he later died from his injuries.
Some days later, their neighbors, who were surveying the scene of
the incident, noticed an inscription in the tractor fender which read:
“In case I die in this mess, I leave ALL TO THE WIFE.” Then, he
signed it.
The fender was removed from the tractor and was determined by
the court to be a valid holographic will. Now, that is based on their
law because here in the Philippines it has to be entirely written,
dated and signed by the testator.
It was admitted into probate as a valid holographic will. But when
you talk about wills, diba we have always imagined it as the
expression of the testator’s intent reduced to paper. How could you
imagine a will that is not on paper?
However in the case of Harris’ will, it is not in paper as it was
scratched in a tractor fender yet it was valid. Applying our own laws
on Evidence, an important requirement to remember is that a
document must be offered as proof of its contents.
Does the law actually distinguish what material in which the content
must be written? Does it matter? IT DOESN’T MATTER.
The material that contains written expressions does not have to be
papyric in nature, in the same way that objects can be in the form of
paper if it is offered, not as proof of its contents, but because of its
physical attributes. For example, yellowing on the surface of the
paper which proves that it is an ancient document; very very old
document. Or that it is crumpled, as evidence of the fact that the
person who read it, has his heart broken.
A document does not have to be paper. Paper is not always a
document. It can be an object.
An object is brought into the courtroom for the
consideration of the court. Example: Like, the objects of
the crime (i.e. unsa tong gikawat?) or the means to
perpetrate the crime: the murder weapon. (gun, knife)
They are brought into the courtroom because they are
susceptible of manual delivery to the courtroom. Pwede
gunitan ug tanawon sa korte.
2) That which consists in the inspection of the object outside
the courtroom. Like, ocular inspection in a boundary
dispute. Or ocular inspection of a crim scene.
Atty. JZE example/experience: One of the cases I handled was this.
It’s a case for theft. Unsay gikawat? Mangga. The complainant was
claiming ang gi harvest kuno na manga sa akong kliyente belonged
to him. Our defense was daghan kayo mig manga na gi harvest, but
there’s this one tree, we admitted, that lies precisely in between the
boundary line of the two properties: one belonging to my client, and
one belonging to the complainant.
What we did is that we asked the court for an ocular inspection,
precisely, to ascertain if the mango tree in question is really one in
the land of complainant or in the land of my client.
We determined that ¾ of the tree belonged to my client and ¼ of
the tree, specifically the one with a branch, was inside the property
of private complainant. Imagine, sa tibook harvest, theft? Unya, isa
ra diay ka branch ang naa sa iya property?
And so, we conducted an ocular inspection and the court went to the
area. And we determined, based on the mohons, that the majority of
which belonged to my client. We were able to get an ACQUITTAL
because of that. Unya the court made an estimate kung pila ka
manga tong naa sa sanga, gipabayaran. That’s it. We were able to
secure an acquittal because of that ocular inspection.
It is discretionary upon the court to go to the place where the object
is located, when the object evidence cannot be brought.
3) Object evidence that which consists in experimentation. It
could be inside the courtroom or outside the courtroom.
Experimentation in evidence refers to AUTOPTIC PROFERENCE
that requires the manipulation of physical objects within or without
the courtroom to determine the facts in issue.
Example of inside the courtroom: An accused, a frail and short
individual is charged with murdering Mateo by repeatedly bashing
his head with a sledgehammer. The defense asked the accused, the
short guy, to brandish the sledgehammer and demonstrate before
the court the physical impossibility of him using it as a murder
weapon. Kay bug-at kaayo. The defense may also invite the court
and the prosecution to similarly manipulate the murder weapon so
that they’d know kung bug-at ba gyud.
What else? Blood sampling inside the courtroom in the presence of
counsel. In the case of People vs Yatar, in open court, gikwaan ug
dugo si Yatar for purpose of DNA testing.
What about OUTSIDE THE COURT ROOM?
A crime scene re-enactment. In a murder where the accused
contends that the alleged murder weapon retrieved from his person
is defective and is therefore an ineffectual means for him in
committing the crime, the gun can be test-fired outside the court
room, and the court can see for itself kung muboto ba gyud.
Another case: OJ SIMPSON CASE:
OJ Simpson was accused of killing his wife Nicole Brown. OJ
Simpson married Nicole Brown. The wife was known to be
promiscuous. Eventually, they were estranged from one another.
What was left in the crime scene were a pair of bloody gloves. Now a
receipt was also found in the house of OJ Simpson saying that he
purchased prior to the crime a glove similar to the one that is found.
So, there’s this circumstantial proof that if those gloves belonged to
him, he was the one who killed. He was there at the scene of the
crime. If he wore the same gloves, he must have been the murderer.
The prosecution wanted OJ Simpson to try wearing the gloves in the
courtroom, infront of the jury, to leave the impression that it fit him.
It fit him like a glove. Therefore, it must have been him.
 EVIDENCE
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
The jury acquitted OJ Simpson. So the battle cry of OJ Simpson’s
lawyer here was: IF THE GLOVES DON’T FIT, YOU MUST
ACQUIT.
***then chismis about OJ Simpson re: Chloe Kardasian***
32:01-48:00 (Anton Maligad)
Requisites of Admissibility of OBJECT EVIDENCE:
a. Relevancy to the fact in issue in the case—basic
requirement of relevancy. It must have relationship to the fact
in issue at to induce belief as to its existence or non-existence.
Although the object evidence may not be directly material to
the fact in issue, it can be considered as a collateral matter.
Where it may be allowed if it tends in any reasonable degree
to establish the probability or improbability of the fact in
issue.
Class Discussion:
A person’s appearance is relevant and is visible as object
evidence the same being addressed to the senses of the court.
Q: In relation to the definition of relevancy, “when is a fact
in issue?”
A: When parties do not agree about it.
Example:
In civil cases, A is claiming that B is indebted to him. B, of
course, denies liability. That is a fact in issue because the
parties do not agree about.
In a murder case, the prosecution proposes that the accused
is guilty of the killing the victim. But the accused is claiming
that he is innocent. Therefore, the fact in issue is the
innocence of the accused. It is a matter or fact that is
properly in issue in case.
The prosecution proposes, then the accused denies. There is
a conflict as to this fact.
Q: Now, what is the fact in issue of the prosecution for the
valuation of RA 9165 that happens after a buy-bust
operation?
A: The fact in issue for the prosecution is that the accused is
selling drugs as proven by the buy-bust operation. But, the
accused is denying such act. Therefore, that is the fact in
issue.
[People vs. Reyes (1994)]—That the admissibility of
marked money as evidence is governed by Section 1, Rule
130 which provides that when an object is relevant to a fact
in issue it may be exhibited to, examined, or viewed by the
court. A marked money being paid as consideration for the
shabu was found to be relevant to the fact in issue, which is
the selling of drugs.
You need to remember, that in a buy-bust operation you
have to simulate the elements of a contract of sale.
Elements of a contract of sale:
1. Consent—the meeting of the offer and the
acceptance of the thing/object which is the cause
of the contract;
2. Subject matter—in this case the illegal drugs;
3. Price certain in money—price is equivalent
which would be the consideration, which is the
marked money.
So there are two objects, which are considered as object
evidence in the prosecution of illegal drugs, by virtue of a
buy-bust operation:
(1) The shabu itself or the illegal drugs; and
When an object is excluded by the law or these rules, such as
evidence, which is the product of the Fruit of the Poisonous
Tree Doctrine, then the object is inadmissible.
Fruit of the Poisonous Tree Doctrine vs.
Exclusionary Rule:
The fruit of the Poisonous tree as evidence is only applicable
to derivative evidence.
On the other hand there is an exclusionary rule. An example
would be illegally seized items. For example, there was no
search warrant and the police searched your residence and
then found illegal contraband.
Is that a fruit of the Poisonous Tree? Not yet!
Such is just an application of the exclusionary rule. That
evidence obtained in violation of your right against illegal
searches and seizures are not to be admitted in evidence.
So what is the fruit of the poisonous tree in that situation?
Let’s say for example, there is already a violation of the
exclusionary rule and by reason of that the accused was
arrested and then at the time that he was arrested he told the
police that he was still hiding drugs underneath my bed.
After which, the police went on and searched his bed and
indeed drugs were found—but such are inadmissible. The
inadmissibility of such evidence is what we call the Fruit of
the Poisonous Tree Doctrine.
It is not automatic. You have to distinguish between the
Exclusionary Rule and the Fruit of the Poisonous Tree
Doctrine.
The Fruit of the Poisonous Tree must be evidence that is
derived from evidence illegally obtained (the illegal search
and the illegal arrest).
Exclusionary Rule Fruit of the Poisonous
Tree
Evidence originally Derivatives of illegally
obtained seized items
b. Object Evidence must be authenticated—it must be
proven to be what it purports to be.
Class Discussion:
Optic Proference must be relevant and it is relevant only
if it makes a fact of consequence more or less probable,
than the absence of the optic preference.
Object evidence in itself does not establish the factum
probandum.
There is no factum probandum provable solely by object
evidence.
Example:
A shot B. The possible evidence showing that A shot B
would the CCTV footage.
So the thing speaks for itself that A shot B? NO!
How does that CCTV footage make its way to the
courtroom? It has to be sponsored by testimonial
evidence by a witness.
Therefore, while the CCTV footage clearly indicates that
A killed B, that has to be authenticated by the credible
witness.
So there is this object, which cannot be brought to the
court to be appreciated by such court, unless a witness
testifies about it first.
So that is authentication. The object must be proven.
It requires that the admission of an object may be
preceded by (testimonial) evidence sufficient to support
 EVIDENCE
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
1.) To prevent the introduction of an object different from
the one testified of—It is important that the very object
presented in court should be the one testified of because
it would lead to dire consequences of the violation of the
right of the accused.
Example: RA 9165 (Comprehensive Dangerous Drugs Act)
What would determine the penalty to be imposed on the
accused or the convict in a drugs case?
Isn’t that a fact that it is the quantity of the drugs found in the
person of the accused?
The more the amount of the shabu or drugs found in his
person the greater the penalty.
If what was found in the person of the accused was 0.5 grams
and upon the presentation of the prosecution the amount of
drugs presented amounted to 10 grams, then there must be
something wrong.
2.) To ensure that there has been no significant changes
in the object’s condition
Class Discussion:
We go back to the case of OJ Simpson.
It would have been so easy to convict OJ Simpson had there been
no mishandling of the evidence in this case.
At the scene of the crime, the CSI/NCIS collected the evidence in
the crime scene.
One of the members of the CSI/NCIS found and collected blood
samples.
Now, it would have been easy to convict OJ Simpson if such blood
samples found in the crime scene matched his person. It raises the
question that if you weren’t really there, then why were your blood
smears found in the crime scene.
But you know what happened there?
So, the officer who collected the vial containing the blood took the
samples and placed it in his pocket, went home, took a shower,
took a nap, changed clothes, got the vial of blood, placed it in his
pocket, went to the police station, and turned it over.
So there is a break in the chain of custody here that he cannot
explain.
Why did he go home with that vial of blood that is a very
indispensable evidence to prove that OJ Simpson had the
opportunity to kill?
So the lawyer of OJ Simpson was able to exclude the evidence.
At the very least there is reasonable doubt, because they were not
able to make sure that there had been no significant changes in the
object’s condition
Now, let’s go to the actual process of authentication.
Authentication Process:
1.) Introduction of proof of identity—It is usually done
through the testimony of a witness as to objects, which are
readily identifiable by sight. Provided, that there is a basis for
the identification by your senses.
Example: It could be markings placed on the object, such as
initials, his pictures in a digital camera or a watermark.
2.) By the peculiar characteristics of the object—Certain
physical features which sets it apart from a particular class by
which it is readily identified.
Example: A hole caused by burning the sweater or a broken
hilt of a knife. So that makes the murder weapon unique in a
Now remember in a criminal investigation. If you find evidence, you
will not hold unto the evidence forever. For example, you are part of
the forensic team that analyzed the crime scene. You will not be the
custodian of the evidence. The evidence has to transfer from one
person to another, till it gets into the hands of the forensic chemist.
Then the forensic chemist will then safeguard it and make a report.
That’s what happens. One person will not have the possession of
that evidence forever.
This means that there is a need to prove the chronological sequence
by which the evidence was handled only by persons who by the
reason of their functions or office can be reasonably expected to
have right or duty to possess or handle the object.
When the object passes to the possession of a stranger, then there is
doubt as to the integrity and not on the identity of the object.
4.) Proof of Preservation—By proving that the preservation of
the object, which consists of showing that the object was kept in a
secure place as to make contamination or alteration difficult. It
must not have been brought out until its presentation in the court.
c. It must not be hearsay—it must not be information
received from another that one cannot adequately
substantiate.
d. It must not be privileged or otherwise excluded—self
explanatory
e. It must meet any addition requirement set by the
law—i.e. Section 21; RA 9165 (Chain of Custody Requirement
in Drugs Cases)
48:01 – 1:04:00 (Benrich Tan)
“Contamination and alteration”. It must be properly reserved.
Later on, we will discuss the Hubert Webb case (which involved
rape) and how it relates to this. In that case, the prosecution case
had biological sample (semen) left in the victim. Years later, the SC
came up with the Rules on DNA Evidence, which provided for post-
conviction DNA testing. A biological sample could be taken from
Webb and compared with the biological sample taken from the
victim, and be compared, due to the witness (Alfaro) stating that she
saw Webb rape Carmela Vizconde. If it matches, clearly he would be
the rapist. But Webb also wanted the post-conviction DNA testing
so he could prove he wasn’t the one who raped her. However, the
object was nowhere to be found (neither in the Court nor the NBI’s
custody). Now that was one of the things that the Court addressed in
that case, which was preservation of the object and on how it could
have been used later on for post-conviction DNA testing. But again,
we will talk about that case later.
Process in Authenticating Specific Objects
As to photographs, maps, diagrams
Authenticity is the act of proving the accuracy of the things, persons,
or places in the photograph which may be through the testimony of
the photographer or anyone familiar with the person, places, or
things shown therein.
General Rule: The normal way of authentication is by presenting
the photographer in court.
However, my opinion is that everyone is a photographer. Gone are
the days where you have to go to a photo studio to get a picture
taken. Now, it’s conceivable that a photograph (as an object
evidence of a specific crime) is merely taken from the internet, and
we don’t know who the photograph is. Our tendencies nowadays is
for a picture gone viral (where it is shared by a seemingly endless
line of people) to be reached into the eyes of a complete stranger. If
that is your evidence, how can you even authenticate it when you
don’t know the photographer? There are no watermarks in the
picture stating that it was taken by a specific person. Due to this, the
exception applies.
Exception: Anyone who is familiar with the persons, places, or
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Example on authentication in open court:
Court: Are you the person in the picture?
Witness: Yes.
Court: What happened?
Witness: X was being killed, and we happened to be in the picture.
Court: Is this photograph an accurate representation of what
happened to you that day?
Witness: Yes.
Court: Authenticated.
SISON VS. PEOPLE,
NOVEMBER 16, 1995.
Facts:
In a prosecution for murder, the prosecution presented photographs
showing the accused mauling the victim. The person who took the
photographs was not presented as a witness. Instead, the
prosecution presented the companions of the victim who testified
that they are the ones in the photographs.
The defense objected the admissibility of the photographs because
the person who took the photographs was not presented as the
witness.
Issue:
Would that contention be tenable? NO.
Ruling:
The general rule in this jurisdiction is that photographs, when
presented in evidence, must be identified by the photographer as to
its production and testified as to the circumstances under which
they were produced. The value of this kind of evidence lies in its
being a correct representation or reproduction of the original, and
its admissibility is determined by its accuracy in portraying the
scene at the time of the crime.
The photographer, however, is not the only witness who can identify
the pictures he has taken. The correctness of the photograph as a
faithful representation of the object portrayed can be proved prima
facie, either by the testimony of the person who made it or by other
competent witnesses, after which the court can admit it subject to
impeachment as to its accuracy.
Here the photographs are admissible as the correctness thereof was
testified by the companions of the victim (who happened to be in
the photograph itself).
Tape Recording
Is the authentication limited to the person who made the tape
recording? Torralba v. People.
TORRALBA VS. PEOPLE
Facts:
The accused here is charged with libel. Presented as evidence is a
tape recording of the radio broadcast made by the daughter of the
complainant.
The daughter was not presented as a witness. Only the complainant
who, in open court, testified that he was not familiar with the
process of the recording. When he was asked what was the process
of recording, he said that he does not know.
Issue:
So is the tape recording properly admitted?
Ruling:
The person who actually took the recording must be presented in
1. a showing that the recording device was capable of taking
testimony;
2. a showing that the operator of the device was competent;
3. establishment of the authenticity and correctness of the
recording;
4. a showing that changes, additions, or deletions have not
been made;
5. a showing of the manner of the preservation of the
recording;
6. identification of the speakers; and
7. a showing that the testimony elicited was voluntarily
made without any kind of inducement
Atty JZE: In lieu of all requisites showing the testimony done was
voluntarily made, I’d like you to observe that these are only
applicable during the period where everything was analog, not
digital.
Requisite #1: Now cellphones are capable to of taking testimony.
Requisite #2: Is there a requirement that you need a bachelor
degree in order to record? No. Everyone is presumed to be
competent
Requisite #3-4: In the era of digital recording, you can manipulate
sounds. It’s difficult to prove now, because the ability to record is
now shared among the general populace, not just a small populace.
Requisite #5: We’re talking about a physical cassette tape. Now, we
can easily make copies of recordings.
So for me, these requisites should be changed, because the SC
should adapt with the changes of the technology. These requisites
are already antiquated.
Videos (from 2016 TSN, since Atty. JZE didn’t discuss this)
It is a lot easier than authenticating tape recording. You just have to
authenticate it just like authenticating photographs. Mubalik lang ta
sa doctrine sa Sison vs. People. It can be the videographer, who will
be presented or anyone competent, according to the Supreme Court.
Any other witness who can testify as to its exactness and accuracy.
Categories of Object Evidence (for purposes of classification)
1:04:01 – 1:20:00 (Christian Yu)
Okay, so let’s go to Categories of Object Evidence – for purposes of
authentication:
A. Unique Objects
- Those that have readily identifiable marks.
Examples:
- A car that with a plate number MGA 239;
- A .45 caliber pistol with serial number 14344 (para
sweet);
B. Objects made Unique
- Are those that are readily identifiable.
Example:
- A bolo knife used to hack a victim, which could be
identified by a witness in court.
Wala siyay unique distinguishing mark but it is made
unique because of the familiarity of the witness of the
same. “Di gyud nako malimtan na iyaha gyud kong gi-
hack anang very same na bolo knife na nah. As a matter of
fact, Judge, wala na koy kamot. :P ”
C. Non-unique Objects
- Those which have no identifying marks and therefore,
cannot be marked also.
 EVIDENCE
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
model or a replica of a footprint. So ginabuhat nah siya sa
TV. I don’t know in real life kung ginabuhat ba nah siya.
Personally, wala pa pud ko ka try so you cannot gain any
insight from me about ani.
Requisite # 3: MUST NOT BE HEARSAY
The witness testifying about the object must have personal
knowledge of it. So dapat naa kay kalambigitan at least anang object
na nah.
You have personal knowledge. You can relate to it in other words.
Hearsay, again, chismis.
“Ingon ni A, mao kuno ni ang knife na gigamit.” “Ingon ni B, mao
kuno ni ang butang na gikawat.”
So he has no personal knowledge of it because what he is testifying
in court about the object was merely relayed to him. He was merely
told about that particular fact.
Requisite # 4: MUST NOT BE PRIVILEDGED OR NOT
OTHERWISE EXCLUDED BY THE LAW OR THESE RULES (The
Rules of Court)
This means that the object must pass the Axiom of Competency.
Example:
- Wiretap recording proposed to be played in court;
- The exhibition of a private video which might offend a
person’s right to privacy;
- Fruit of Poisonous Tree
Now, one more Exclusionary Rule will be found in Article III,
Section 17 –
Right against Self-Incrimination
“No person shall be compelled to be a witness against himself.” This
was our example earlier – experimentation inside the courtroom.
PEOPLE VS. YATAR (May 19, 2004):
Does the use of blood samples taken from the accused violates the
right to remain silent and his right against self-incrimination?
Imagine what the prosecution here is trying to do and is being
sanctioned by the court – kuhaan kag blood sample so that it can be
compared to the biological samples found at the scene of the crime.
If it matches then you are done.
So Yatar is complaining because probably, he knows that it will
match. He is complaining that it violates his right against self-
incrimination kay pugson ko nimo og hatag og biological sample.
Now, remember that your DNA can be found in practically every
part of your body – hair, saliva, blood, etc. So with all the more
reason here because it is his blood.
Gikuhaan siya og blood sample so easy to compare ka with the
biological sample, in a crime of rape here, seminal discharge.
According to the SC, pataka ka lang. The kernel of the right is not
against all compulsion, but against testimonial compulsion. So
kanang pugson ka na mu-istorya.
The right against self- incrimination is simply against the legal
process of extracting from the lips of the accused an admission of
guilt. It does not apply where the evidence sought to be excluded is
not an incrimination but as part of object evidence.
And so the SC said that a person may be compelled to submit to
- fingerprinting,
- photographing,
- paraffin,
- blood and
- DNA,
as there is no testimonial compulsion involved.
What about handwriting? Can a person be compelled to produce a
sample of his handwriting as basis for determining his criminal
liability as the author of a certain document?
Gipasulat ka og kanang kuan, whatever na ipasulat sa imoha And
then, i-compare nah siya sa usa ka document that is purported to be
forged or perjured an document.
So writing – is it a purely physical or mechanical act? NO.
Writing is NOT a mere mechanical act but involves the application
of the intellect. You cannot write without applying intelligence.
However, if the accused testifies in his own behalf and denies
authorship, he may be compelled to give a sample of his
handwriting.
So drawing of blood, taking of biological samples, paraffin tests and
so on are NOT covered by the right against self-incrimination
because they are purely physical or mechanical acts.
Handwriting, giving a handwriting specimen is violative of this
right. It is not a purely mechanical act but involves the application
of the intellect. “When you write, you have to use intelligence.”
That is my first tip when you take the Bar Examinations during you
time. So when you write, write with intelligence. Bawal ang
magpataka lang og yawyaw.
PEOPLE VS. WILLIAM:
One of Sir’s favorite cases in the world.
Would object evidence be inadmissible on the ground that it is
beyond the commerce of men? What happened here?
There’s this guy named Alejandro William na ndakpan na nay gunit
na marijuana. Selling actually marijuana.
Now, during trial and even during appeal, he said that “The
marijuana taken from my person should be excluded because it is
beyond the commerce of men.”
So what a great legal argument ‘di ba? Clearly, ang iyang lawyer
knows about what constitutes an illicit subject matter under the Law
on Sales – beyond the commerce of men.
According to the SC, pataka lng ka. The probative value of an object
is not affected by the fact that it is beyond the commerce of man.
Appellants raise the strange argument that exhibit C lacks probative
value because the subject thereof “marijuana” is beyond the
commerce of man. That is simply absurd according to the SC.
The transfer of marijuana was incidental to the arrest of appellants
and the confiscation of the subject matter of the crime. Exhibit "C"
is in the same category as a death certificate and autopsy report
which are admissible evidence of the subject of the crime — the
human cadaver which is also beyond the commerce of man.
Transfer of goods as a consequence or by virtue of police or state
action such as forfeiture, seizure, condemnation, confiscation did
not fall within the phrase "commerce of man" even in its broadest
meaning.
Why did I choose this case? Because number 1, it is funny. And
number 2, it shows you that in lawyering anything goes. You can
come up with the weirdest most absurd, funniest and nonsensical
arguments and it may even reach the SC.
The law is black and white only when you are in law school. Outside
of law school, when you eventually practice law what happens? You
are free to use the law according to your own interpretation. There
is no more right or wrong answer. What matters would be what the
judge sees is true or false.
Kung tuuhan ka sa judge. Horay. Congratulations. Kung dili ka
tuuhan, try and try until you die. Ing-ana lng man in the practice.
But in the bar examinations. You will be taking the bar soon
enough, you are in 3rd year now. So in 2 years, you have to take the
bar already. That is your goal diba. Take the shortest route to the
bar examinations. Take it once. Pass the 1st time you take it. Mao na
atong goal Tanan.
You know what the examiner is looking for?
It’s not your perfect knowledge of the law, because nobody has a
monopoly of knowledge. You cannot be expected to know
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Atty. Jess Zachael Espejo
me that you can bullshit like a lawyer. mao lng na. the attitude of a
first time practitioner. So when you answer my examinations, argue
persuasively. I do not care if your arguments are PL(pataka lng) I
don’t care. But argue like a lawyer and I will not give you a zero.
Mao lng na ang kahinanglan pamugas mo. Ayaw ko tagai ug answer
na tinamad. Kay ang bar examiner puhon mao lng man na ang
ginapangayo. That you argue like a lawyer.
Ang lawyer na tipid kayoo ang storya. Mubo kaayo ang ingnun,
mubo kaayo ang mga pleading. Mao na ang mga lawyer na dili ninyo
dapat kuhaon.
So when you are taking the bar examinations, give the examiner the
attention that he deserves by arguing persuasively.
‘Yes, the law provides that A is wrong. Therefore I conclude that A is
wrong”
That is the quickest and surest way to fail my class. Give me
persuasive arguments. I wouldn’t even care if its wrong or right, you
will still be given points. Just training you for the bar. Dugay ko mu-
uli ug notebooks mu-admit ko ana. “guilty your honor” your grades
will come out probably January pa. but I will try my best to give you
your grades as soon as possible. I am a very busy man. With a wife
like that you will be very very busy. But why does it take me a long
time to check your papers? Because I will always commit. When I
tell you that you are wrong, I will tell you why you are wrong exactly
so I am also telling you how to make it right. So you will never doubt
me for not trying to tell you how to pass my class. I will always tell
you. I will praise you if you deserve praise. And I will tell you “dud
WTF” if you don’t. ok? So kabalo na ta karon pa-unsa mag-tubag.
Same goes with my wife, andam na mo sa akong asawa karon. Ako
pud andam na ko(hehe)
You know already how to answer. That is the surest way in making
sure that you pass the bar examinations. Before you can take the bar
pass my subject first. Those of you who are regular 3rd year, you will
realize you will not stop seeing me until you graduate. Evidence 1st
sem, 2nd sem torts and damages. 1st sem 4th year, civil law review,
conflict of laws. 2nd sem 4th year civil law review remedial law
review. You wont stop seeing me. Mag-sawa gyud mo sa akong
dagway. Just imagine mag-sawa dyud mo. And I hope when you
eventually pass the bar examinations pangitaon ko ninyo una
tungod magpasalamat. Ang di magpasalamat way utang na loob.
(hehe) off the record ni ha sa mga nag-record.
Then you have People vs Brecinio march 17,2004
Mateo was charged for the murder for shooting Gerald. After trial,
Mateo was found guilty as charged.(yey) On appeal, Mateo argued
that the trial court should have acquitted him as the lower court has
not proved his guilt beyond reasonable doubt.
What is his argument?
The paraffin test conducted on him two days after he was arrested
yielded a negative result.
So that’s object evidence, the result of a paraffin test saying that
based on the test I did not fire a gun. That is what a paraffin test is
all about. It tests the residual chemicals found sa imong skin after
you fire a weapon. That is a paraffin test. So according to Mateo he
could not have shot Gerald.
1:20:01 – 1:36:00 (Dane Viola)
According to Matteo, he could not have shot Gerald. Is this
interpretation correct?
No, that the paraffin test result is negative does not ipso facto prove
that Matteo is innocent. A negative paraffin test is not conclusive
proof that a person did not fire a gun. In other words, it is possible
to fire a gun and yet be negative for nitrates, as when culprits wear
gloves, wash their hands afterwards, or are bathed in perspiration.
Here, since Matteo submitted himself for paraffin testing two days
after the shooting it was likely that he had washed his hands thus
removing all traces of nitrates thereof. So a negative paraffin test is
not fool proof.
Finally, object evidence must meet any additional requirements set
by the law. Example is RA 9165 or the "Comprehensive Dangerous
Drugs Act of 2002".
Section 21. Custody and Disposition of Confiscated, Seized,
and/or Surrendered Dangerous Drugs, Plant Sources of
would describe how and from whom it was received, where it was
and what happened while it was in his possession, the condition it
was received and the condition it was delivered to the next link of
chain.
These witnesses would then describe the precautions taken to
ensure that there have been no change in the condition and no
opportunity for someone not in the chain to have possession of the
same.
So why do we need to establish the chain of custody?
1) To guarantee the integrity of the physical evidence;
2) To prevent the production of evidence which is not
authentic.
Take note that when an exhibit is positively identified, the chain of
custody of physical evidence would already be irrelevant.
When dealing with illegal drugs, the ideal way of getting rid of them
is destroying them. Just imagine in a police station they would want
to get rid of the marijuana by burning them, it will be a great party
to be at.
Corruption is worst when drugs fall into the custody of the police
and then they sell it again for its high value.
FIRST LINK (Sec 21 RA 9165)
(1) The apprehending team having initial custody and control of the
drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused
or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected
public official who shall be required to sign the copies of the
inventory and be given a copy thereof;
Why is this required?
90% of those who were arrested by virtue of a buy-bust operation
claim as their defense that the evidence was planted. Here it will be
clear that it was not planted since there will be representatives from
the media who will attest to it, there will be kawagad or Brgy.
Captain.
What happens if there is a lapse in the chain of custody?
People v Eugenio
The noncompliance by the by bust team is not fatal as long as there
is justifiable ground therefor. And the integrity and evidentiary
value of the ceased item are properly preserved. Its noncompliance
will not render accused’s arrest illegal or the items ceased from him
inadmissible, what is of upmost importance is the preservation of
the integrity and evidentiary value of the items as the same would
be utilized to determine the guilt or innocence of the accused.
For example there was no photograph, no countersign by those
required, that would not automatically ensure that the accused will
be acquitted or that the evidence will be inadmissible.
If there is a lapse in the chain of custody, what it actually affects
would be the weight of the probative value, the believability of the
evidence. The weight to be given by the court of the said evidence
depends on the circumstances in the case. It is conceivable that the
lapses in the chain of custody would lead to an acquittal of the
accused if the probative value of the items seized by virtue of the
buy-bust operation that fell short of the requirement of Sec 21
would produce reasonable doubt because of the lapses. But
generally, if it is just a buy-bust operation and there is a minor lapse
justification therefor, you can say that it does not affect the
admissibility of the evidence.
Now here’s this case:
People v Almorfe
Sir: There was no physical inventory, photographs in the presence of
the accused, he was later on convicted, the question was WON the
drugs were admissible. The SC here stuck with the general rule:
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Atty. Jess Zachael Espejo
warrant exception therefrom, and provided that the integrity and
evidentiary value of the seized items are properly preserved by the
apprehending officer/s.
For the saving clause to apply, it is important that the prosecution
should explain the reasons behind the procedural lapses and that
the integrity and value of the seized evidence had been preserved.
While a perfect chain of custody is almost always impossible to
achieve, an unbroken chain becomes indispensable and essential in
the prosecution of drug cases owing to its susceptibility to
alteration, tampering, contamination and even substitution and
exchange. Hence, every link must be accounted for.
In fine, the prosecution failed to account for every link of the chain
starting from its turn over by Janet to the investigator, and from the
latter to the chemist.
So if there is lapses in the chain of custody, the apprehending
officers must explain it. If you do not offer an explanation, then you
must be hiding something and verily, that would constitute
reasonable doubt.
Presumption of regularity cannot overcome the presumption
of innocence or the constitutional requirement of proof of
guilt beyond reasonable doubt leading to the acquittal of the
accused.
GEN RULE: A perfect chain of custody is impossible to achieve and
will not affect the arrest and admissibility of evidence.
1:36:01 – 1:52:00 (Edsam Andit)
If the prosecution fails to explain the reasons behind or the
circumstances behind the departure of the usual procedure, if it
does not explain every link in the chain of custody, it might lead to
acquittal.
That’s what we need to remember.
Kuntahay naay accused, a peddler of illegal drugs is caught, and he
goes because of reasonable doubt, dili na na muabot sa Supreme
Court. Tama? The moment he’s acquitted wala na na. So, it would
never reach the SC. You have no idea how many drugs cases are
thrown out before the RTC because of Sec. 21. Because lawyers
became to adept in destroying the prosecution witnesses that
account for every link of the chain of custody.
Drug lords go free because of this chain of custody and because
prosecutors don’t know how to prosecute. And so, as response,
Congress came up with an amendment to RA 10643. More or less it
is the same, but it has now legislated what the SC said in the case of.
People vs Eugenio Ruling:
Non-compliance with these requirements under justifiable grounds,
as long as the integrity and the evidentiary value of the seized items
are properly preserved, by the apprehending officer of team, shall
not render void or invalid such seizures and custody over said items.
So, they have to insert this because of the cases thrown out in the
RTC for the simple reason of failure to comply with the chain of
custody.
This is a reminder to the judges that non-compliance with the
requirements is not fatal as long as it is satisfactorily explained and
shown that the integrity of the items is preserved.
I hope you don’t become lawyers who makes money out of drug
pushers. You are contributing to the problem.
(Story about how drugs can damage the country like Cuba. And how
many deaths occur in America due to drugs)
What’s my standard in lawyering? “If I can sleep at night knowing
what I did, I’m okay. If I can’t sleep at night, then I’m not okay.”
REVIEW OF SOME PRINCIPLES/CONCEPTS:
No object evidence can ever be presented unless identified or
authenticated by a competent witness. It must be sponsored by a
witness.
General rule: The actual object evidence must also be presented in
When you take the BAR exams, you need to make sure
that your documents are in order. The sad thing about it
is if you’re a guy and your name is the same with a famous
personality who is a girl, magbuot buot ang Civil
Registrar. Imbes na Male ka, himuon kang Female. It
happens a lot.
I have this client named “Rio”. Rio is a guy. In his birth
certificate it’s FEMALE. Kay at that time, sikat si Rio
Locsin. A very pretty actress in our time. So magbuot
buot.
So, what do you need to do? Magfile ug petition for
correction of an entry in the Local Civil Registry. Karun,
pwede na na siya administrative ra but before, you really
need to file a case in court. The problem was,
nagkaproblema iyahang mga documents. You need to
secure NBI clearance, medical certificate that you have
been examined and was really found a Male, etc.
The problem was gitrippingan ko kay baguhan ko na
abogado. So, it took a long time na dali ra unta. It came to
a point na niingon na akoang client “Pre! Dili ba pwede
maghubo nalang ko? Ipakita nalang nako na lalaki jud
ko?” because it will be easier to prove that way than to
present a medical examination from a doctor finding him
to be anatomically male.
But we did not do that because it is contrary to public
morals and decency.
2. To require being viewed in court or in ocular inspection
would result in delays, inconvenience, or unnecessary
expenses which is not in proportion to the evidentiary
value of such object.
3. Such object evidence would be confusing or misleading as
when the purpose is to prove the former condition of the
object and there is no preliminary showing that there has
been no substantial change in the said condition; which is
applicable to ocular inspections; or
4. The testimonial or documentary evidence already
presented clearly portrays the object in question as to
render the view thereof unnecessary.
5. Where the existence of the object is not very the fact in
issue but is merely a collateral fact or is merely used as
reference.
6. Where the article cannot be recovered or outside the
coercive jurisdiction of the court.
7. In crimes the gist of which is the illegal possession of
article, a distinction must be made. If the article is
common or familiar such that it can be readily identified
by sight, its presentation is not necessary. Its presentation
is not necessary as existence may be shown by the
testimony of the witnesses.
In illegal possession of firearms however, the accused may still be
convicted even without the presentation of the gun in court. (take
note of this)
PEOPLE vs. TAGUBA 342 SCRA 199.
RULING:
In cases involving the illegal possession of firearms, the prosecution
has the burden of proving (a) the existence of the subject firearm,
and (b) the fact that the accused does not have corresponding
permit to possess.
As to the first requisite the evidence can be best established by the
presentation of the firearm but there is no requirement that the
actual firearm itself must be presented in court. It is not fatal if the
prosecution did not present the firearms itself.
Its existence can be established by a testimony. Where the articles
however are not common or not familiar to ordinary persons, and
cannot be identified by sight, they must be presented in court.
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Atty. Jess Zachael Espejo
• Exhibition of the private parts in sex cases. Alangan
muingun ang judge na i exhibit giunsa pag commit.
• Presentation of the corpse or disembodied body parts.
• Re-enactment of violent/ offensive acts. (Halimbawa,
Mateo raped Maja. His defense that he did not rape Maja
is because he is incapable of an having an erection. He
maintains that rape for him is an impossible crime due to
the fact that his manhood is an ineffectual means to
commit the crime. So can the judge say na ”Show me that
it is really ineffectual”? The judge cannot do that. The
judge cannot ask Mateo to experiment on himself.
• Objects which are offensive to man’s sensibilities or
repulsive objects should not be presented anymore. Waste
matters like human excreta, corpses of dead animals, or
killing of an animal to prove that the substance is poison.
You can just have a chemical analysis of it. Have a
chemist testify for it. No need for experimentation.
• While obscene or indecent objects are no longer needed to
be presented in court, there may be instances where they
may be permissible to be exhibited.
• If a view of the object is necessary in the interest of
justice, such object may still be exhibited. But the court
may exclude the public from such view. The view may not
be refused if the indecent or immoral objects constitute
the very basis of the criminal or civil action (e.g obscene
pictures or exhibits).
It happened to me. I was a collaborating counsel in a case I handled
in Cebu. The guy was cheating on his wife. Case for concubinage was
actually filed against him since there was no anti-VAW-C law at that
time yet. The ground was there was sexual intercourse with a
woman not his wife under scandalous circumstances.
The only proof that we presented was the sex-tape in VHS. So how
do you attach that to the complaint? Of course, you need to replay,
get screen shots out of it. That is what you attach. But that will not
really prove whether carnal knowledge was indeed under
scandalous circumstances. So, I was the one who presented the
evidence, and the evidence was the video tape. So, there was a
question, “Your Honor, is there a need to present the evidence in
court considering that it contains an obscene and indecent show?
“But the court said, IN THE INTEREST OF JUSTICE, WE WILL
WATCH THE VIDEO TAPE. So, all the lawyers, together with the
judge, went to his chamber. We watched the videotape to determine
whether or not it is scandalous. J We are done with object
evidence. Let us know a little bit about documentary evidence.
1:52:01 – 1:53:06 (Jennifer Lim)
Note: Chika lang gyud siya actually. Dili na relevant J
*Kanang inyong generation, puro gyud mo walay buot. Mao gyud
nang difference sa inyong generation ug sa amoa. With the
exception of very few, who still belong to my generation. Be careful
of what you put out there. Pictures or videos of yourselves not
knowing that you are doing a Katrina Halili. That’s brotherly
advice. SIR CHECKS THE ATTENDANCE*
JULY 19, 2018
00:00 -00:44 (Jennifer Lim)
We finished object evidence. For tonight, we will discuss something
that I have extensively written, DNA as Evidence in the Philippines.
First thing we need to know is that DNA is also object evidence as in
the case of People vs. Lavapie and People vs. Alulod wherein
the Supreme Court said that it is the evidence of the highest order.
Why? Because it speaks for itself eloquently, more than a hundred
witnesses. Such that when the object evidence runs counter to the
testimonial evidence of the case, it will always be the physical
evidence that will prevail.
What is DNA? DNA means deoxyribonucleic acid, which is the
profiles, results and other genetic information directly generated
from DNA testing of biological samples. 1
What are these biological samples? Biological sample means
any organic material taken from the body that could be viable for
DNA testing. This could be from your hair, saliva, or blood.
A few interesting facts before we go to DNA evidence.
1. Take note that about 97% of our DNA is junk. Walay
pulos or components with no known biological functions.
That’s the mystery of it.
2. Chimpanzees are 96% to 98% similar to humans,
depending on how it is calculated. (Which explains why
you have schoolmates here in AdDU who look like
monkeys.)
3. Cats have 90% of homologous genes with humans;
Meaning we have 90% analogous genes with cats, 82%
similar with dogs, 80% with cows, 79% with chimpanzees,
69% with rats and 67% with mice.
4. 75% of mouse genes have equivalents in humans, 90% of
the mouse genome could be lined up with a region on the
human genome
5. The fruit fly (Drosophila) shares 60% of its DNA with
humans. About 60% of the chicken genes correspond to a
similar human gene. So there’s a; little bit of cannibalism
there when we eat at KFC.
I’m saying this because despite the fact of similarity with human
beings in this universe that we inhabit, we are the only being with
millions and millions of genes. It is least likely to confuse DNA of
the human beings to that of a cow, a cat or what have you.
The question now is, since you are law students, there is now the
topic on how DNA can aid in criminal investigation. In determining,
for example, the culprit in murder or in any other case where it
would be relevant. How similar is the DNA of one person to the
other? The genome variation of one human being to another is only
0.5%. So, we are all 99.5 % similar regardless of gender or age.
Given the similarity, how can DNA Evidence be helpful in solving a
case, in finding a possible perpetrator? It’s pretty darn accurate. The
set of chromosomes in a cell makes up its genome; the human
genome has approximately 3 billion base pairs of DNA arranged
into 46 chromosomes. According to the FBI, the chance of
misidentification is one in a billion. No two persons have identical
DNA except with respect to identical twins. What is the rate of
identical twins? The rate is 1 in 250. But would be difficult as to the
entire population, one in a billion lang ang possibility of
misidentification.
Where does this concept come from? The criminal
investigation that makes for example biological samples? It comes
from this guy Edmund Locard.
Edmund Locard (1877-1966)
He was a pioneer in forensic science who became known as the
Sherlock Holmes of France. He formulated the basic principle of
forensic science: “Every contact leaves a trace.” This became known
as the Locard’s exchange principle.
Another author used Locard’s Exchange Principle as:
"Wherever he steps, whatever he touches, whatever he
leaves, even without consciousness, will serve as a silent
witness against him. Not only his fingerprints or his
footprints, but his hair, the fibers from his clothes, the
glass he breaks, the tool mark he leaves, the paint he
scratches, the blood or semen he deposits or collects. All
of these and more, bear mute witness against him. This
is evidence that does not forget. It is not confused by the
excitement of the moment. It is not absent because
human witnesses are. It is factual evidence. Physical
evidence cannot be wrong, it cannot perjure itself, it
cannot be wholly absent. Only human failure to find it,
study and understand it can diminish its value."
So we are talking about here, physical or object evidence. Let’s now
discuss the academic side. What are the purposes of DNA
Evidence in the law? How can DNA Evidence be useful?
1. Identification (unidentified corpses in airplane crashes or
in mass graves, decomposed murder victims, for example.
You could take DNA samples and compare it in order to
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
2. Determination of parentage and pedigree (paternity and
maternity testing)
3. Criminal Investigation (which would the police in
including or elimination of suspect by the police in
building a case). We are talking here about investigation.
It can also be used by the prosecution in which DNA could help in
convicting perpetrators of crimes as to exonerate individuals.
Making evidence necessary in inculpatory or exculpatory ---
Inculpatory meaning included; Exculpatory meaning you will be
excluded or exonerated as a suspect. So building a case would be
much easier when you have zeroed in a suspect
DNA CASES THROUGHOUT HISTORY
A. DNA for Identification: Josef Mengele a.k.a. The
Angel of Death, a Nazi Officer during WWII.
Mengele was so morbid. He was a notorious member of the team of
doctors responsible for the selection of victims to be killed in the gas
chambers and for performing deadly human experiments on
prisoners (mostly the Jews). The dark history here when Hitler who
is probably the most disturbed that he had divisions working for
him precisely to conduct experiments.
His experiments:
1. Twin boy toddlers were sewn together so Mengele could
investigate how Siamese twins behaved.
2. Twin girls were forced to have sex with a pair of male
twins and, if they got pregnant, kill them and remove the
embryos for study.
3. In another case, one twin was infected with TB then both
were killed so Mengele could observe the different
pathology.
When Germany fell, Mengele fled and eluded capture for a long
time. There were many alleged sightings of him up to 1985. It was
important for nations that Mengele was brought to justice. Until the
1990’s, this was still an issue as something had to be done. This
happened in the World War 2 which ended in 1945.
In 1969, a man named Wolfgang Gerhard drowned in Brazil and
was buried there. Blood specimens from Mengele’s wife and son
were used to reconstitute Mengele’s DNA pattern. In 1992, the
remains of Gerhard were confirmed to be those of Mengele. Thus,
ended the painful chapter of human history.
B. For Determination of Parentage and Pedigree:
The Russian Imperial Romanov Family
They were the last imperial Romanov family. Their king was called
Tsar. After the Bolshevik Revolution in Russia, deposed Tsar
Nicholas II, his wife and five children were executed by the
Bolshevik Troops upon orders of Lenin on July 17, 1918.
They were all buried in unmarked graves for fear of desecration.
Why? Kung imo na silang ibutang dira, it would cause revolution.
Maybe the supporters would did them up or use them as a rallying
cry; if you are against the imperial family, you could dig them up
and use them for parade or something like that. Rumors persisted,
however, that the youngest daughter, Anastasia had survived and
escaped Russia. Survival of a member of the Royal family could have
been used as a rallying point by those loyal to the Royal Family and
at the same time anti-Bolshevik groups to depose the new
communist regime. There’s a Messianic factor to it.
In 1920, however, a woman named Anna Anderson surfaced in
Germany claiming to be “lost” Romanov heiress, Anastasia. A lot of
people were convinced because of the actual similarities.
In 1991, the bones of the Romanov family were discovered and
verified through DNA matching with a relative, Prince Philip,
husband of Queen Elizabeth II of Great Britain.
By that time, Ann Anderson was already dead. A sample of
Anderson’s tissue, part of her intestine removed during her
operation in 1979, had been stored at Martha Jefferson Hospital,
Charlottesville, Virginia. Anderson’s mitochondrial DNA was
extracted from the sample and compared with that of the Romanovs
and their relatives.
It did not match that of the Duke of Edinburgh or that of the bones,
confirming that Anderson was not related to the Romanovs. In
Between 1983 and 1986, two 15-year old girls were separately raped
and murdered. The modus operandi of the crimes was similar.
Semen samples obtained from the bodies revealed that there was
only one assailant. The main suspect was Richard Buckland , a 17-
year-old youth with learning difficulties, who revealed knowledge of
one of the girls’ body, and admitted the second murder under
questioning. But he denied the first murder.
So the investigators wondered why would he deny the first and
admit to doing the other crime wherein it was already established
through testing that there is only one assailant.
Having no solid lead on the crimes, investigators turned to Sir Alec
Jeffreys. Jeffreys is a British geneticist, and the man credited for
developing techniques for DNA fingerprinting and DNA profiling
which are now used worldwide in forensic science to assist police
detective work and to resolve paternity and immigration disputes.
Jeffreys compared semen samples from both murders against blood
sample from Buckland which conclusively proved that both girls
were killed by the same man, but not Buckland. Historically
speaking, Buckland became the first suspect in the world to be
exonerated by the use of DNA evidence.
The police then undertook an investigation in which 5,000 local
men were asked to volunteer blood or saliva samples. Swabbing is
this big cottonbud used to collect saliva. This took six months, and
no matches were found.
Then, in 1987, the police discovered that one man, Colin Pitchfork
had paid his co-worker to give a DNA sample while posing as him.
After collecting a DNA sample from Pitchfork, the authorities were
able to make a positive match with the semen samples. He was the
first person to be convicted because of DNA Evidence. He was
sentenced to life imprisonment and concurrent terms for rape and
murder.
What I’m trying to say is as early as 1984, the use of DNA as
evidence in cases had been accepted internationally. What about us
in the Philippines?
As early as 1995, there was a mention of DNA evidence in the case of
People vs. Teehankee, Jr.
PEOPLE vs. TEEHANKEE, JR. (Oct. 6, 1995)
This case if about the murder of a certain Maureen Goldman. It
became known in the country for the reason that Teehankee Jr. was
the son of the Chief Justice, Claudio Teehanke Sr.
The appellant was convicted of murder on the testimony of three
eyewitnesses, the Supreme Court stated as an obiter dictum that
“while eyewitness identification is significant, it is not as accurate
and authoritative as the scientific forms of identification such as the
fingerprint or DNA testing”.
Facts: In 1991, 3 separate criminal cases were filed against accused
Claudio Teehankee, Jr. Accused relied on the defense of denial and
alibi. Accused claimed that during the shooting incident, he was not
anywhere near the scene of the crime, but in his house in Pasig.
Ruling: The accused was convicted on the strength of
thetestimonies of 3 eyewitnesses who positively identified him as
the gunman.
In a way, the Supreme Court is making a hierarchy. We may have
eyewitness identification but it is not as accurate, our memories are
actually subjective and selective. There’s a possibility of a flawed
identification process. The Supreme Court said naa pa mas reliable
ani. It could be DNA evidence or finger printing. But, 2 years later in
a paternity dispute in the case of Pe Lim vs CA.
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PE LIM vs. CA (GR No. 112229, Mar. 18, 1997)
DNA, being a relatively new science, it has not as yet been accorded
official recognition by our courts. Paternity will still have to be resolved
by such conventional evidence as the relevant incriminating acts, verbal
and written, by the putative father.
Facts: In 1978, the petitioner Raymond Lim and respondent Maribel
Cruz fist met in a club. In January 1982, Maribel gave birth to their
daughter. Towards the latter part of 1983, Maribel noticed that the
petitioner’s feeling towards her started to wane. He even insinuated
that he was not the father of the child considering the nature of
Maribel’s work as an entertainer..
Ruling: Article 172 (2) states “An admission of legitimate filiation in a
public document or a private handwritten instrument and signed by the
parents.” He is the father of the child since he executed all
responsibilities which undeniably showed concern of a legitimate
father such as payment of hospital bill, causing the registration of the
child using his surname and lastly the lines in his letters which much
love and concern to Maribel and their daughter.
SC is saying relatively new evidence na diba 1980’s naa na man?
Here we go in 1997, delayed by a few years, saying that it is
relatively new. This paternity case held against the putative father.
The Supreme Court is hesitant to consider DNA testing as in the
resolution of the case and the same hesitancy is in Andal vs.
People.
ANDAL vs PEOPLE
(GR No. 138268, May 26, 1999)
Facts: There are three gang rapists here. After being convicted of
rape and sentenced to the death penalty, the accused proposed a
novel request for DNA testing as a means to reverse their
conviction. If the testing proved negative, they propose that they
should be acquitted.
Held: The issue of DNA as a more accurate and authoritative means
of identification than eye-witness identification need not be
belaboured. The accused were all properly and duly identified by the
prosecutions principal witness Olimpio Corales, a brother in law of
accused Jurry and Ricardo Andal.
DNA testing proposed by petitioners to have an objective and
scientific basis of identification of semen samples to compare with
those taken from the vagina of the victim are thus unnecessary or
are forgotten evidence too late to consider now.
Let’s go back to Teehankee, where the SC actually held that DNA
evidence is superior. Yet, here in Andal the SC is saying na no need.
You were truly identified. In Teehankee diba it said eyewitness
identification is flawed. The SC here is saying no need for DNA.
PEOPLE vs. PENASO
GR No. 121980, Feb. 23, 2000
Facts: In November 1989, Penaso allegedly raped his daughter’s
classmate. The victim became pregnant and gave birth on July 16,
1990 or eight months later. Take note, 8 months. After being
convicted and on appeal to the Supreme Court, Penaso asked for
DNA Testing to determine if he was really the father of the child he
should be acquitted.
Held: SC said Pregnancy is not an element of rape. The issue of
"DNA tests" as a more accurate and authoritative means of
identification than eye-witness identification need not be belabored.
The accused was properly and duly identified by the prosecutions
principal witness.
In other words, the SC is echoing Andal being that pregnancy is not
Decided a few months after Penaso. This is a case for robbery with
homicide. Accused-appellant SPO1 Bernie Jamon Faustino of the
crime of robbery with homicide and sentenced him to suffer the
extreme penalty of death.
In an obiter, the SC revisited Teehankee stated that: “An eyewitness
identification, which authors not infrequently would describe to be
‘inherently suspect,’ is not as accurate and authoritative as the
scientific forms of identification evidence like by fingerprint or by
DNA testing.”
So unsa man jud, Supreme Court? In Faustino, it said na better ang
DNA testing than witness identification. In the previous case of
Penaso, it need not be belaboured. The SC is actually flip-flopping
here.
TIJING vs. CA
(GR No. 125901, March 8, 2001)
The Supreme Court, for the first time, opened the possibility of
admitting DNA as evidence of parentage. The Court issued a writ of
habeas corpus against respondent who abducted petitioner’s
youngest son. Testimonial and documentary evidence and physical
resemblance were used to establish parentage.
However, the SC noted: “Parentage will still be resolved using
conventional methods unless we adopt the modern and scientific
ways available. Fortunately, we have now the facility and expertise
in using DNA test for identification and parentage testing. The
University of the Philippines Natural Science Research Institute
(UP-NSRI) DNA Analysis Laboratory has now the capability to
conduct DNA typing using short tandem repeat (STR) analysis. The
analysis is based on the fact that the DNA of a child/person has two
(2) copies, one copy from the mother and the other from the father.
The DNA from the mother, the alleged father and child are analyzed
to establish parentage.
Of course, being a novel scientific technique, the use of DNA test as
evidence is still open to challenge. Eventually, as the appropriate
case comes, courts should not hesitate to rule on the admissibility of
DNA evidence. For it was said, that courts should apply the results
of science when competently obtained in aid of situations presented,
since to reject said result is to deny progress. Though it is not
necessary in this case to resort to DNA testing, in future it would be
useful to all concerned in the prompt resolution of parentage and
identity issues.”
Facts: Edgardo and Bienvenida Tijing filed a petition for habeas
corpus in order to recover their youngest child, Edgardo Jr., whom
they did not see for 4 years.
Ruling: The trial court was correct in its judgment based on the
evidence established by the parents and by the witness who is the
brother of the late common-law husband of Angelita. Furthermore,
there are no clinical records, log book or discharge from the clinic
where John Thomas was allegedly born were presented. Strong
evidence directly proves that Thomas Lopez, Angela's "husband",
was not capable of siring a child. Moreover, his first marriage
produced no offspring even after almost 15 years of living together
with his legal wife. His 14 year affair with Angelita also bore no
offspring.
Trial court also observed several times that when the child and
Bienvenida were both in court, the two had strong similarities in
their faces. Resemblance between a minor and his alleged parent is
competent and material evidence to establish parentage. Lastly, the
spouses presented clinical records and testimony of the midwife
who attended Bienvenida's childbirth.
So, the SC is warming up to the idea because we have the UP
laboratory that has the ability to perform testing of biological
samples or DNA testing. The SC has recognized the ability of the
Philippines. In 2002, the SC has used DNA evidence to convict the
accused beyond reasonable doubt in the case of Vallejo.
PEOPLE vs. VALLEJO
(May 9, 2002)
Facts: Vallejo was charged with raping and murdering a 9-year-old
child. The victim’s DNA samples from the bloodstained clothes of
the accused were admitted in evidence. Also, the DNA profile from
the vaginal swabs taken from the rape victim matched the accused’s
 EVIDENCE
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
person’s DNA profile is distinct and unique.
When a crime is committed, material is collected from the scene of
the crime or from the victim’s body for the suspects DNA. This is the
evidence sample. The evidence sample is then matched with the
reference sample taken from the suspect and the victim.
The purpose of DNA testing is to ascertain whether an association
exists between the evidence sample and the reference sample. The
samples collected are subjected to various chemical processes to
establish their profile.
The DNA test may yield THREE possible results:
1. EXCLUSION. The samples are different and therefore
must have originated from different sources. This
conclusion is absolute and requires no further analysis or
discussion;
2. INCONCLUSIVE. It is not possible to be sure, based on
the results of the test, whether the samples have similar
DNA types. This might occur for a variety of reasons
including degradation, contamination, or failure of some
aspect of the protocol. Various parts of the analysis might
then be repeated with the same or a different sample, to
obtain a more conclusive result; or
3. INCLUSION. The samples are similar, and could have
originated from the same source. In such a case, the
samples are found to be similar, the analyst proceeds to
determine the statistical significance of the similarity.
In assessing the probative value of DNA evidence, therefore, courts
should consider, among others things, the following data:
• How the samples were collected; 
 giving of much weight to the evidence presented by the prosecution
• How they were handled; 

• The possibility of contamination of the samples; 
 KEY POINTS IN EVIDENCE:
• The procedure followed in analyzing the samples, whether
the proper standards and procedures were
followed in
conducting the tests
• The qualification of the analyst who conducted the tests. 
 §
After this case, the SC has a changing tide. There was a long period
of hesitation. The Supreme Court has had a series of flip-flopping.
In one case, saying eyewitness identification is enough then in
another saying that it is not reliable. The Supreme Court has now
begun to ask for DNA Evidence as means for prosecution.
PEOPLE vs. JANSON
(GR No. 125938, April 4, 2003)
Facts: This case involves a complex crime of rape with homicide. In
1995, RTC of Cotabato ruled that the appellants were guilty of the
crime of robbery with rape, and sentencing each of them to the
penalty of Reclusion Perpetua, and ordering them to
pay P30,000.00 and P10,000.00 in favor of Marites Alcantara and
Cesario Alcantara
Ruling: The SC acquitted the accused charged with rape for lack of
evidence because “doubts persisted in our mind as to who were the
real malefactors. Yes, a complex offense had been perpetrated but
who were the perpetrators? How we wish we had DNA or other
scientific evidence to still our
doubts!”
SC: “ After due reflection and deliberation, we still find difficulty in
sustaining the trial courts conclusion regarding appellants guilt
because of inconclusive identification. Doubts persist in our mind
as to who are the real malefactors. Yes, a complex offense has been
perpetrated, but who are the perpetrators? How we wish we had
DNA or other scientific evidence to still our doubts! But we have
only uncertain testimonies to rely on. It is only when the
conscience is satisfied that the persons on trial are the ones who
committed the offense that the judgment should be for
conviction. Only when there is proof beyond reasonable doubt can
we be certain that, after trial, only those responsible should be
made answerable. The evidence for the prosecution must stand or
fall on its own merit and cannot be allowed to draw strength from
the weakness of the evidence for the defense.
TECSON vs COMELEC
(March 3, 2004)
This was the case that determined the eligibility of FPJ to run as
president of the Philippines. There was an issue of filiation. All that
which examines genetic codes obtained from body cells of the
illegitimate child and any physical residue of the long dead parent
could be resorted to. A positive match would clear up filiation or
paternity. In Tijing vs. Court of Appeals, this Court has
acknowledged the strong weight of DNA testing.”
PEOPLE vs. MOJELLO
(GR No. 145566, Mar. 9, 2004)
The cause of death as cardio-respiratory arrest due to asphyxiation
and physical injuries; she was strangled to death and left on the
seashore as manifested by the frothing in her lungs. No physical,
scientific or DNA evidence was presented to pinpoint appellant as
the person who killed the victim. Thus, appellant cannot be
convicted of rape with homicide considering the insufficiency of
evidence which thereby created a reasonable doubt as to his guilt for
the said special complex crime.
Appellant should instead be held liable only for the crime of
statutory rape, the victim Lenlen Rayco then eleven years old.
Walay DNA then eh, so we cannot convict him for the complex
crime. Of course, we have the case of People vs. Yatar.
People vs. Yatar
Facts: Yatar was accused of committing rape with homicide against
victim Kathylyn. DNA testing of the sperm specimen from the
vagina of the victim was of identical semen. Yatar questions the
notwithstanding their doubtfulness.
§ Evidence is relevant when it relates directly to a fact in
issue as to induce belief in its existence or non-existence.
Pertinent evidence based on scientifically valid principles
could be used as long as it was relevant and reliable.
§ Evidence is relevant when it relates directly to a fact in
issue as to induce belief in its existence or non-existence
Yatar was convicted of the crime of rape and homicide. DNA from
the vagina had sperm specimen, was a positive match to that of the
appellant. We have discussed Yatar in object evidence and said that
object evidence is not free from any type of compulsion,
but only against testimonial compulsion. The process of
extracting from the lips of the accused-- his guilt. But, it does not
apply to mechanical acts.
Yatar also tells us about international precedence, the admission of
scientific techniques in resolving a case. For example, in Daubert.
In Daubert v. Merrell Dow, it was ruled that pertinent evidence
based on scientifically valid principles could be used as long as it
was relevant and reliable. Judges, under Daubert, were allowed
greater discretion over which testimony they would allow at trial,
including the introduction of new kinds of scientific techniques.
DNA typing is one such novel procedure.
Under Philippine law, evidence is relevant when it relates directly to
a fact in issue as to induce belief in its existence or non-
existence. Applying the Daubert test to the case at bar, the DNA
evidence obtained through PCR testing and utilizing STR analysis,
and which was appreciated by the court a quo is relevant and
reliable since it is reasonably based on scientifically valid principles
of human genetics and molecular biology.
Pay particular attention in the case of Yatar of the defenses raised, it
has also cited the right against self-incrimination and the right to
remain silent under Article 3 of the Constitution.
44:01 – 1:00 (Gillian Grancho)
(On PEOPLE V YATAR )
1st argument: Yatar contends that the blood sample taken from him
as well as the DNA tests were conducted in violation of his right to
remain silent as well as his right against self-incrimination
 EVIDENCE
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
accused an admission of guilt. It does not apply where the
evidence sought to be excluded is not an incrimination but
as part of object evidence.”
We ruled in PEOPLE V RONDERO that although accused-
appellant insisted that hair samples were forcibly taken from him
and submitted to the National Bureau of Investigation for forensic
examination, the hair samples may be admitted in evidence against
him, for what is proscribed is the use of testimonial
compulsion or any evidence communicative in nature
acquired from the accused under duress.
Hence, a person may be compelled to submit to
fingerprinting, photographing, paraffin, blood and DNA,
as there is no testimonial compulsion involved
What are we talking about here?
• Purely physical or mechanical acts
Like obtaining pubic hair, there’s no compulsion here involved. The
hair does not testify, unless sponsored by a person, dili lang
gihapon. It has to be analyzed pa, you’re not forced to make
confession of guilt.
2nd argument: Yatar further argues that the DNA tests conducted
by the prosecution against him are unconstitutional on the ground
that resort thereto is tantamount to the application of an ex-post
facto law.
That’s novel, if you really thought about it. But the SC said that
argument is specious. No ex-post facto law is involved in the
case at bar. The science of DNA typing involves the admissibility,
relevance and reliability of the evidence obtained under the Rules of
Court. Whereas an ex-post facto law refers primarily to a question of
law, DNA profiling requires a factual determination of the probative
weight of the evidence presented. Dili lang gihapon sya ex-post facto
law.
Take note:
1. DNA Testing in court cases involves a scientific procedure. The
testimony tending to interpret the results of such scientific
procedure would necessarily be rendered by experts.
Remember ha, this is a scientific technique that the courts do
not have competence on. Do you expect the courts to just
understand it without the aid of expert testimony?
You will know later on, under Rule 130, that the expert
testimony is an exception of the opinion rule. You already
know that our courts and tribunals are courts of law and not of
science or medicine. So walay alam atong korte ana.
2. In American jurisprudence, there are tests to determine
admissibility of scientific/expert evidence.
I want you to remember these tests:
• The Frye Test (Frye vs. United States, 293 F. 1013, 1014
[D. C. Cir. 1923])
• The Daubert Test (Daubert vs. Merrell Dow
Pharmaceuticals, 509 U.S. 579 S.Ct. 2786 [1993]) and
later on expanded in Kumho Tire vs. Carmichael, 526 U.S.
137, 119 S.Ct. 1167 (1999)
Ngano gina pa assign sa inyo? It’s because the courts have
already cited these cases. Kailangan nato na sya tun an
FRYE TEST
Scientific evidence is admissible if it was based on a scientific
technique generally accepted as reliable in the scientific
community. Expert testimony was admitted simply by virtue of
the expert’s credentials, experience, skill and reputation. Any
deficiencies or flaws in the expert’s conclusions would be exposed
through cross-examination.
Applying this rule, Frye court refused to admit testimony based on
an early lie detector (polygraph) test reasoning that lie detector
testing had not gained general scientific acceptance or recognition
at that time and even until now. The results of lie detector test are
I know something better than a lie detector test – a woman’s
intuition. I don’t know why, when I lie to my wife, she will know.
Mayo na lang I don’t lie.
The standard therefore in Frye is simply general
acceptance.
• If a procedure is generally accepted, then we don’t have a
problem anymore. The court will accept that, it will receive
expert testimony and accord it proper probative value or
weight.
• If a procedure is not generally accepted, evidence obtained
using this procedure would be inadmissible.
In a way, this is echoed in: PE LIM vs. CA (GR No. 112229, Mar.
18, 1997)
DNA, being a relatively new science, it has not as yet been accorded
official recognition by our courts. Paternity will still have to be
resolved by such conventional evidence as the relevant
incriminating acts, verbal and written, by the putative father.
DAUBERT TEST
The US Supreme Court expanded the “general acceptance test” and
said that trial judges have the role of “gatekeeper” to ensure
“that any and all scientific testimony or evidence admitted
is not only relevant, but reliable.”
The Court stated that the trial judge should determine whether the
reasoning and methodology is “scientifically valid” and whether
“that reasoning properly can be applied to the facts in issue.”
Who among you here will agree that smoking kills?
That it is addictive and can cause a variety of diseases? How could
you prove that in court?
Is there a study by experts whether nationally or internationally
which categorically tell you beyond a shadow of a doubt that
smoking is addictive and can cause a variety of diseases and
eventually death?
Tobacco companies will have the resources to hire contrary experts
to tell you that it’s not the smoking which caused death but
something else. So nothing is definitive. It’s an open secret but
nobody will officially that in open court. Nobody will also admit that
smoking kills and say that for the record. The cases involving expert
testimonies will not prosper because tobacco companies will just
settle and keep the records closed.
That’s where the Daubert test should have come in . Trial judges
should be gatekeepers.
Confronted with the scientific duel, it is the duty of the judges to
ensure that such scientific evidence is not only relevant but
reliable.
Four Daubert Factors:
• whether a theory or technique can, or has been, tested;
• whether it has been subjected to peer review and
publication;
• in respect to a particular technique, the known or
potential rate of error and the existence or maintenance
of standards controlling the technique’s operation; and
• whether the theory or technique enjoys general
acceptance within a relevant scientific community.
Remember that in the case of Frye, the SC’s standard there is simply
general acceptance, but in the case of Daubert, ang iyang standard
na is based on relevancy and reliability. In a way, the Daubert
test factors in the Frye test and is more comprehensive between the
two tests
Kumho expanded the application of the Daubert test not only to
cover scientific knowledge but also technological or technical
knowledge.
Take note:
 EVIDENCE
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
is relevant to the fact in issue and is not otherwise excluded by the
law or the Rules of court.
But, even if neither is controlling on Phlilppine law, it bears to
mention that Yatar seems to approve Daubert. Diba gina mentiones
niya ang factors ni Daubert.
Take note however, that Daubert was applied
- to determine the weight, meaning probative value,
katooha ba, believability of evidence
- not the admissibility
Let’s go to another case,
CABATANIA vs. CA (GR No. 124814, Oct. 21, 2004)
Florencia Regodos was employed as the househelp of Camelo
Cabatania. It was while working there as a maid that, on January 2,
1982, Camelo brought her to Bacolod City where they checked in at
the Visayan Motel and had sexual intercourse. (Gi trip pa jud niya,
ka sweet)
Camelo promised to support her if she got pregnant. Florencia
claimed she discovered she was carrying Camelo’s child 27 days
after their sexual encounter. The child was born in September 1982
or eight months later. (it’s already the second case, basi nay pattern)
Florencia, on behalf of her son, filed petition for recognition and
support. The trial court ruled that: “In view of the evidence
presented by the plaintiff, the Court finds the evidence of the
plaintiff to be meritorious; defendant admitted having a sexual
intercourse with the plaintiff’s mother, Florencia Regodos, but
denied paternity to the child. The child was presented before the
Court, and if the Court is to decide this case, based on the personal
appearance of the child, then there can never be a doubt that the
plaintiff-minor is the child of the defendant.”
Sir: Chinese people for example, all look the same. Diba? Mag
paryente mana sila. How is it that rely on mere physical
resemblance? To my mind, that’s really problematic. Can you
confuse one Indian from another? You can.
Held: In this age of genetic profiling and deoxyribonucleic
acid (DNA) analysis, the extremely subjective test of
physical resemblance or similarity of features will not
suffice as evidence to prove paternity and filiation before
the courts of law.
Private respondent’s petition for recognition and support is
dismissed.
In this case, the SC placed a premium on using more accurate
methods of determining paternity and filiation other than physical
resemblance.
IN RE: DE VILLA (GR No. 158802, Nov. 17, 2004)
The Supreme Court convicted De Villa by final judgment of raping
his niece Aileen. The judgment made reference to the fact that it was
the act of rape that got the niece pregnant and for here to
consequently bear a child.
So, the information, the criminal complaint here stated very well
that “ tungod kay gi rape ni De Villa iyang pagumangkon na si
Aileen, nabuntis siya. Kung wala sya gi rape, dili na mabuntis”
1:00:00 – 1:16:00 (Kemarie Manligoy)
Tungod kay gi-rape ni De Villa ang iyang pag-umangkon na si
Aileen, nabuntis siya. Kung wala siya gi-rape, dili siya mabuntis. So,
if you ask me, that is a matter that the prosecution should prove. It
is in a way an element of the accusation. He was saying rape; got
pregrant. Were it not for the fact that she was raped, she would not
have gotten pregnant. That’s the reason right? Now, since it was
never alleged that Aileen gave birth to a full term nine month old
baby, the Supreme Court gave credence to the prosecution’s
contention that she prematurely gave birth again to an 8 old month
baby by normal delivery.
You know, I tend to get paranoid when I see patterns. How many
cases now where the alleged carnal knowledge or rape produce an
as a result of rape. Denied by the Supreme Court, DNA had the DNA
test conducted independently. Okay?! The result? He is not the
father of Aileen’s child. Okay? Now, De Villa filed a petition for
habeas corpus and asked for a new trial on the ground of newly
discovered evidence. He’s not asking for a reversal of conviction.
He’s only saying that given this information that I am not the father
of Aileen’s child, I ought to be served at least a new trial. Receive
that evidence so I can prove my innocence. Okay? It makes sense
right? Here the Supreme Court said the petition involves the remedy
of habeas corpus to seek a re-examination of the records without
asserting any legal grounds therefore. So, the Supreme Court now is
trying to be technical about it. Ginaingon sa Supreme Court, kung
mu-file ka ug habeas corpus to secure your provisional liberty in the
meantime tapos magtrial ta, what’s your ground? What specific
ground did you allege? The Supreme Court is being technical. For all
intents and purposes, petitioner seeks a re-evaluation of the
evidentiary basis for his conviction. They are being asked to re-
examine the weight and sufficiency of the evidence in this case not
on its own but in the light of new DNA evidence that the petitioner
seeks to present in this Court. This relief it outside the scope of
habeas corpus petition which applies only in case of denial of
constitutional right. The petition for habeas corpus must therefore
fail.
Technical but kita na nagtanaw, si Devilla is not the father of the
child. Now, remember one case we’ve discussed earlier where the SC
said that pregnancy is not an element of rape. True, it’s the mere
touching of the female lavia would be enough to consummate rape.
Isn’t it a fact that the complaint here, they alleged directly
pregnancy as a result of rape and therefore kung ang contention sa
prosecutor kay if not for the rape, Aileen would not have gotten
pregnant. That contention necessarily fails when he is able to prove
that he is not the father.
How did the SC defeat his claim? By saying that mali ang habeas
corpus na remedy. It was improper remedy. That’s your SC
students.
The issue of paternity is not central to the issue of …. The rape of the
victim is an entirely different question, separate and distinct from
the question of a father of a child. The fact of the victim’s pregnancy
and the resulting child birth are irrelevant in determining whether
or not she’s raped. Pregnancy is not an essential element of the
crime of rape. Therefore, the DNA evidence has failed to conclusive
prove to this Court that Devilla should be discharged although
petitioner claims that the conviction was based solely on the finding
of the paternity of the child. This is not the case. Our conviction is
based on clear and convincing testimonial evidence of the victim
which was given credence by the trial court was affirmed.
We will revisit this case of Devilla later on. There’s more to this case
than meets the eye.
Now, Herrera vs Alba, June 15, 2005. Now, petitioner here
raises the issue of whether a DNA test is a valid probative tool in
this jurisdiction to determine the …. Petitioner asks for conditions at
which DNA technology can be taken in our judicial system and the
prerequisites for the admissibility of DNA evidence in paternity
suits. Petitioner further submits that the appellant court may abuse
its discretion by authorizing the trial court to embark on a new
procedure to determine filiation despite the absence of legislation to
ensure its reliability and integrity. One of the official recognition as
made clear in Delima vs CA, in the presence of the legal and
technical constraints in the implementation. Petitioner maintains
that the proposed DNA paternity testing violates his right against
self-incrimination. Now to my mind, if you look at the last argument
of the petitioner Herrera here, he’s saying that it would violate his
right against self-incrimination. But you need to remember that this
is not a criminal case. In that alone, pataka lang. This is not a
criminal case so why are you talking about incrimination here?! But
again, he raises the same arguments as raised before in People vs
Yatar and the SC said that despite our relatively liberal rules on
admissibility, the Trial court should be cautious in giving credence
to DNA analysis as evidence. We reiterate our statement in the … vs
Vallejo that in assessing probative value of DNA evidence, court
should consider how the samples were collected, how they were
handled, the possibility of contaminating, the procedure followed in
analyzing the samples, whether proper standards and procedures
were followed in conducting the tests and the qualification of the
analyst who conducted the test. It is not enough that the child’s
DNA profile matches that of the putative father. A complete match
between the DNA profile of the child and the profile of the putative
father does not necessarily establish paternity. For this reason, trial
court should require at least 99.9% as the minimum value of the
 EVIDENCE
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Anything less than that should result in an exclusion or at least an
inconclusive result. W is a numerical estimate for the likelihood of
paternity of a putative father compared to the probability of a
random match to unrelated individuals. An appropriate reference
population database such as the Philippine population database is
required to compute for W. Due to the probabilistic nature of
paternity inclusions, W will never be 100%. However, the W
estimates is higher when the putative father or mother of the child
are subjected to DNA analysis compared to those conducted of the
putative father and the child. DNA analysis that excludes the
putative father from paternity should be conclusive proof of non-
paternity. If the the value of W is less than 99.9%, the results of
DNA analysis should be considered as corroborative evidence only.
Diba we explained this?
What’s the difference between corroborative evidence and
cumulative evidence? Corroborative lang siya. If the value of W is
99.9% or higher then there is refutable presumption of paternity.
So, it’s disputable. It can still be refuted or rebutted by contrary
proof. This refutable presumption should be subjected to the
Vallerosa case, the one that we’ve discussed.
Now, this to my mind a very important case, Herrera vs Alba
because this W and the values assigned by the SC ultimately found
their way into the rules on evidence. As in the same, 99.9% or
higher. It’s like the SC copied verbatim from the case of Herrera vs
Alba.
And? What about self-incrimination? Section 17 Article III of the
1987 constitution provides that no person shall be compelled to be a
witness against himself. Petitioner asserts that obtaining samples
for DNA testing violates his right against self-incrimination.
Petitioner ignores earlier pronouncements that the privilege is
applicable only to testimonial evidence.
Now, let’s try to summarize so far the two cases that to my mind are
important for now. Both of them referring to right against self-
incrimination. The first case is People vs Yatar where the Supreme
Court here said that an accused in a criminal case may be compelled
to undergo drug testing, drug typing, fingerprinting, paraffin testing
to determine guilt or innocence without violating Section 17 Article
3 of the 1987 Constitution or the right against self-incrimination.
Why? These are purely physical or mechanical acts.
Now, let’s relate that to the case of Herrera vs Alba. How does that
apply or what is the moral lesson that we could learn? That in
criminal cases, there can be compulsory DNA testing. That’s
precisely what the SC said. Pwede ka pugson na muhatag ug
biological sample because anyway, it does not violate any
constitutional right and now, by necessary implication, the case of
Herrera vs Alba would also therefore be the sufficient basis to
compel DNA testing or the giving of biological samples in paternity
cases. So kung pwede kang i-compel in criminal cases, that’s People
vs Yatar. Kung pwede ka i-compel in paternity suits, that’s Herrera
vs Alba. You can’t refuse anymore. You can be compelled.
1:16:01-1:28:18 (Lara Delos Santos)
By necessary implication, the case of Herrerra vs Alba, shall be the
sufficient basis to compel DNA testing or the giving of biological
samples in paternity cases.
So kung pwede ka icompare in criminal cases, that’s People vs.
Yatar. Kung pwede ka icompel in paternity suits, that’s Herrera vs.
Alba.
Now, Agustin vs. Court of Appeals (July 2005):
The petitioner in this case would not submit to DNA testing to
determine paternity on the ground that to undertake it against his
will would violate his right to privacy and right against self-
incrimination. In the same manner as it was held to be in Herrera
vs. Alba. And here the SC said, now confirming what is said in
Herrera vs. Alba, that compulsory DNA testing is allowed in a
paternity suit. The Sc said:
Petitioner’s invocation of his right to privacy fails to persuade us.
In Ople v. Torres, where we struck down the proposed national
computerized identification system embodied in Administrative
Order No. 308, we said:
right must be accompanied by proper safeguards that enhance
public service and the common good.
Historically, it has mostly been in the areas of legality of searches
and seizures, and the infringement of privacy of communication
where the constitutional right to privacy has been critically at
issue.
Petitioner’s case involves neither. His hollow invocation of his
constitutional rights elicits no sympathy here for the simple reason
that they are not in any way being violated. If, in a criminal case,
an accused whose very life is at stake can be compelled to submit to
DNA testing, we see no reason why, in this civil case, petitioner
herein who does not face such dire consequences cannot be ordered
to do the same.
Three cases: People vs. Yatar, Herrera vs. Alba, and now the case of
Agustin vs. CA.
What’s the end result? What is the postulate that we need to
remember? DNA testing can be compelled whether in criminal cases
or paternity suits.
Now, People vs. Macapal (July 2005):
The Accused was prosecuted for allegedly raping a 23-year-old
mental retardate. She got pregnant and bore a child. Macapal was
convicted by the trial court. On appeal, Macapal argued that he was
deprived of his right to fully defend himself in light of the trial
court's denial of his 'MOTION FOR DNA TEST’ wherein he raised,
as main issue, whether he fathered the victim's child. Once again,
Macapal supposes that, if he is not the father of the child, he is not
guilty of the rape which led to the victim’s pregnancy and
subsequent childbirth. The Supreme Court took the same stance it
had in Penaso and De Villa and ruled that:
The identity of the father of a rape victim's child is non-issue in a
charge for rape, the impregnation of the victim not being an
element of the offense.
More importantly, it should be pointed out that these consolidated
cases are criminal cases for rape, not civil actions for paternity or
filiation. The identity of the father of the victim's child is a non-
issue. Even her pregnancy is beside the point. What matters is the
occurrence of the sexual assault committed by appellant on the
person of the victim on four separate occasions.
Appellant's act of committing, along with his parents, in the
Agreement forged with the victim while the case was on
preliminary investigation before the Prosecutor's Office 'to
shoulder one-half (1/2) of the expenses to be incurred by [the
victim] . . . in connection with the delivery of her child is the coup
de grace that dissipates any nagging doubts on his guilt.
So sa ibang kaso, fathers are scared of DNA testing. But here,
Macapal is asking for it but was denied by the trial court. What’s the
effect?
The identity of the father of a rape victim's child is non-issue in a
charge for rape, the impregnation of the victim not being an
element of the offense.
Pila na ni na kaso? Kadaghan na wherein the SC is saying that in
rape cases, pregnancy is not an element of the offense. Wala siya’y
apil. It’s simply carnal knowledge.
But in my mind man gud, it’s very simple. Somebody raped
someone. There is a biological sample. He left semen in the vagina
of the victim. Don’t you think it’s more towards determining the
guilt of the accused beyond reasonable doubt if the accused is given
the ability to eliminate himself as the source of the biological sample
left in the body of the victim. To my mind, is that not enough
reasonable doubt? Specially so if the prosecution alleges that it is
the very rape that caused the victim to be pregnant.
O let’s say wala nabuntis. He just left the semen inside. During trial,
doesn’t he have the right to have himself tested to determine if iyaha
ba jud tong semilia. Why are courts reluctant? And why would the
courts be relying on eye witness identification rather than scientific
evidence?
The truth of the matter is I cannot relate. I don’t handle rape cases.
But the student of the law in me would always question. Why is the
SC reluctant and rash in ruling that pregnancy is not an element of
the offense. When in fact, a negative DNA result would be enough
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
admission of guilt. At least in this case there is this justification but
in other cases, I don’t know.
Now we have the case of People vs Rayles (July 2007):
Accused-appellant would have this Court credit him for having
insisted that a DNA test be conducted on AAs daughter. He claims
that had he raped the victim and fathered her child, he would not
have the nerve to challenge the result of a DNA test, as such
procedure would definitely reveal whether he is the father or not.
Pregnancy and the subsequent birth of her child are not elements
of the crime of rape. Moreover, non-paternity of the appellant, if
that be the case, will not necessarily negate the crime of rape as
positively proved and established by AAs credible testimony. There
may or may not be conception after the commission of the crime of
rape because the offense may be consummated even without full
penetration or even complete ejaculation on the part of the
assailant. We have time and again stressed that among the most
important consideration in a rape case is the credible testimony of
the victim. We have repeatedly held that when a woman says she
had been raped, her declaration alone is all that is necessary to
show that she had indeed been raped and her sole testimony is
sufficient if it satisfies the exacting standard of credibility needed
to convict the accused.
The accused here is actually bluffing the court. “I’m not afraid of
DNA testing. Sige, magpa DNA ako. Pag positive di man nako ideny
ba. Pag negative, eh di wala koy sala.” The SC is adamant in saying
that “pregnancy is not an element of rape.”
JULY 25, 2018
00:00:01-00:10:00 (Lara Delos Santos)
The first thing I’d like to discuss with you tonight is something that
you might relate to. It’s….
IN RE: Petition to take the 1999 Bar Exams
A bar candidate by the name of Julius Cesar passed the 1999 Bar
Examinations but was not allowed to take the lawyer’s oath. A
Letter-Complaint was filed before the Office of the Bar Confidant
by a certain Tuesday Castro charging him with Immorality and
Grave Misconduct. Castro alleged that she and petitioner were
former lovers that she bore him a son named Michael Angelo
Castro on May 5, 1999. The issue brought before the Supreme
Court was whether Cesar possesses the good moral character
required to be admitted to the Philippine Bar.
Complainant presented evidence tending to show that petitioner
does not possess such character since he refused to give financial
support to a child he has legally acknowledged to be his own.
As expected, Cesar claimed otherwise. Aside from the allegation
that he was merely forced into acknowledging paternity of Michael,
he wanted to remove first his reasonable doubts regarding the
child’s paternity through DNA Testing. Cesar promised to abide
with the result of the DNA test and to give financial support as
religiously as before, even more, if Michael was proved to be his
son. Strangely, however, Tuesday refused to undergo DNA testing.
Hence, the Supreme Court ruled:
We take judicial notice of the fact that DNA typing is fast
becoming an important procedure not only in the field of medical
science but in criminal law and paternity disputes as well.
Considering the foregoing and the fact that petitioner promised to
abide by the result of the DNA test as well as to shoulder the
expenses therefor, we find petitioner's proposal for a DNA testing
to be quite reasonable and complainant's aversion to the test
surprising. If her claim that petitioner fathered her child is really
true, she has no reason to fear the result of the test for it would be
another evidence in her favor. Moreover this case should be
decided on a strong foundation of truth and justice rather than on
blind adherence to prima facie rules.
Finding the proposal of petitioner for DNA testing at his expense
to be fair and reasonable, unless the test is conducted and the
results thereof submitted to this Court within forty-five (45) days
from notice hereof, the Court will be constrained to grant the
petition of JULIUS R. CESAR to be allowed to take his oath as a
lawyer and to be admitted to the Philippine Bar.
So what the SC is saying is that naay mga in-ani na kaso na pwede
nato gamitan ng DNA and actually we take judicial notice of the fact
that this is a useful tool and is something that can be used to solve
this kinds of disputes.
Kay tinuod man gyud if she claims na atty cesar here is the father ,
dili sya mahadlok na adunay mga variants. Para sa kanya wala
mahitabo na variants kay iyaha man jud na anak.
There was np DNA testing that happened in this case. But, it’s
enough for the SC to say na dili siya reluctant eh. He was confident
about it and you know all that is well, ends well. He eventually
became a lawyer.
So what was the key moment for him? He was so confident to have
the DNA test but the mother didn’t want to.
So after 12 years of cases involving DNA evidence, the Supreme
Court finally came up with the rule on dna evidence and
promulgated A.M. No. 06-11-5-SC (2 October 2007), or the
RULE ON DNA EVIDENCE, which took effect on October 15,
2007.
Let’s now go to the provisions…
Section 1 provides that the rule “shall apply whenever DNA
evidence, as defined in Section 3 hereof, is offered, used, or
proposed to be offered or used as evidence in all criminal and civil
actions as well as special proceedings.”
In Criminal Actions
DNA evidence can be used in criminal actions involving unlawful
killings such as parricide, murder, homicide, and infanticide.
So if you are charged with murder for example and then you are
accused of killing your child or your parent, so that would be
parricide or infanticide. So you can deny “di mana nako paryente. Di
mana nako papa.” So it can’t be parricide.
DNA evidence can perhaps be useful to establish relationship, being
either an element of the offense or a mitigating circumstance.
Also, as we have already observed, many of the cases decided by the
Supreme Court that refer to DNA evidence had been in rape cases as
well, and kidnapping, and several cases as well.
What about adultery? Remember adultery is committed by any
married woman who shall have sexual intercourse with a man not
her husband and by the man who has carnal knowledge of her
knowing her to be married, even if the marriage be subsequently
declared void.
Suppose that, the offended husband may allege that his unfaithful
wife became pregnant by another man. DNA evidence can be used
to establish that the child is not the husband’s and therefore, that
his wife had sexual intercourse with another man.
Dili man pwede immaculate conception. There has to be some doing
with another man. It brings to mind the old case of VILLAFLOR
versus SUMMERS.
Villaflor vs. Summers
Villaflor was charged with the crime of adultery. The trial court
judge ordered her to subject herself to a physical examination to
see whether or not she was pregnant and thus determine the crime
of adultery being charged to her.
She refused such physical examination, interposing the argument
that such examination was a violation of her right against self-
incrimination. She was found in contempt of court and was
ordered to be committed to Bilibid Prison until she should permit
the medical examination required by the court. In ruling against
her contention, the Supreme Court declared that:
The constitutional guaranty, that no person shall be compelled in
any criminal case to be a witness against himself, is limited to a
prohibition against compulsory testimonial self-incrimination.
An ocular inspection of the body of the accused is permissible.
Let us suppose that the husband was unable to copulate with the
wife, cannot have sex. Maybe he is impotent, basta there’s physical
impossibility for the husband to copulate with the wife. And then
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
against self-incrimination. And of course the SC said it is not part of
the prohibition. It is only limited to prohibition against compulsory
testimonial self-incrimination.
Again it is limited to mechanical acts. And we can apply that now to
DNA testing. Assuming, that a case with a similar factual milieu as
that of Villaflor vs. Summers would come about, it will not only be
ocular inspection of the body that would determine pregnancy. You
could also determine if the child was born out of this ilicit
relationship with another man. So how useful DNA is in this date of
age.
And we remember in the case of Agustin, DNA testing and its results
and our ruling in Yatar are now similarly acceptable.
So we go back to our previous discussion, when we talk about
criminal actions, DNA testing can be compelled. It’s as simple as
that. Why? Because it’s a purely physical and mechanical act. And if
you remember the case of Herrera vs. Alba, the Supreme Court held
that if you can compel in a criminal case to give a DNA sample or a
blood sample to undergo paraffin testing, etc., with all the more
reason that he can be compelled in a civil case where your liberty is
not actually in jeopardy.
10:01 to 20:00 (Kemarie L. Manligoy)
If you remember the case of Herrera vs Alba, the SC also said that if
you can be compelled in a criminal case to give a DNA sample, or a
blood sample, to undergo paraffin test and so on, all the more
reason that you can be compelled in a civil case where your liberty is
not actually in jeopardy. So, pwede siya na ma-compel. Now, just a
little bit of cross-reference here regarding presumption of legitimacy
that you can find in the various provisions of the civil code that
children born or conceived of a child during the marriage are
presumed legitimate. There’s always that bias by the law that favors
legitimacy children regardless of how … the circumstances can be.
Now, Article 166, the legitimacy of a child may be impugned only on
the following grounds like no. 2 that for biological or scientific
reasons, the child could not have been that of the husband except in
the instance provided in the 2nd paragraph of Article 164 which talks
about artificial insemination. So, biological or scientific reasons.
What could be a better scientific reason that based on the DNA
evidence, the child could not have been fathered by the husband. So,
that is one scientific reason.
Article 167, the child shall be considered legitimate although the
mother may have declared against its legitimacy or may have been
sentence as an adulteress. Again, there’s that presumption of
legitimacy even if the mother herself has declared against its
legitimacy by saying that kining bataa ni dili mani anak sa akoang
bana. Akoa ning anak pero dili ni siya anak sa akoang bana. Just
weird diba?
Take note that the presumption of legitimacy of children born
during the marriage is simply or merely disputable. It’s not
conclusive. It is subject to contrary proof. While the finding of
adultery does not by itself rebut the presumption of legitimacy and
as I’ve previously noted, DNA evidence will therefore be presented
to prove that by biological or scientific reasons the child could not
have been that of his own.
In civil actions, the rule on DNA evidence does not even distinguish
between ordinary and special civil actions and therefore it is
possible to apply the rule to special civil actions such as actions for
support. Remember that support based on the family code
provisions would actually bent on family relationships. You will not
be obliged to give support to a person na dili mo related. You are
obligated to give support to someone whom you are not related. So
if that boils down to the determination of relationship between the
person claiming support and a person being obliged to give support,
DNA evidence can therefore be used.
In special proceedings, remember the definition of a special
proceeding. A remedy by which the parties seek to establish a status
or right of a particular fact. An example of that would be paternity
suits. DNA testing would actually be quite useful in paternity suits.
What else? Habeas corpus proceedings Rule 102 where habeas
corpus may be resorted to in cases where the rightful custody of any
person is withheld from the person entitled thereto. It is proper
legal remedy to enable parents to retain the custody of a minor child
such as in the case of Salvalle vs Herrera in the case of kidnapping.
Now, they wanted to find out if ang kadto bang bata na nakidnap a
long time ago is really their child. How they found it out? They can
object evidence and also characterize what DNA evidence is all
about. We know it to be an object or physical evidence and based on
the case of People vs Larapie, it’s evidence of the highest order.
It speaks more eloquently than a hundred witnesses according to
the Supreme Court. Object or physical evidence like hair, saliva,
bone and etc. A biological sample is an object evidence itself but
remember that while it is object or physical evidence, it is one that
can only be appreciated through the aid of expert testimony because
okay, the blood will not testify. The semen will not testify. So for all
intents and purposes, you need to remember, expert evidence or
expert opinion, opinion evidence lang na siya which general rule,
under the rules of court, is generally not allowed. We are not
allowed to give an opinion in court. The only opinion that matters in
court is the court’s opinion. So what we think about the matter
actually does not matter.
Remember also that object evidence does not lie and the expert, the
person who processes the DNA evidence, and testifies about it. So,
object evidence by itself is reliable but the matter of collecting,
processing and preserving it may be prone to error. It is object
evidence that can only be appreciated by the aid of expert testimony.
So, based on Section 2, we apply the Rules of Court suppletorily to
cases covered by the Rule on DNA evidence. As previously
mentioned, it includes Rule 130 Section 49 which talks about the
opinion of expert witnesses. So, if the opponent admits that the
witness is an expert, he can immediately proceed to his testimony
and give his opinion. We don’t have a problem there. But if the
opponent does not admit that the person testifying is an expert,
before he can testify, he must firstly qualify. That’s the process as to
qualifying a witness. It means the act of proving that the witness is
an expert. This is done by making him testify through preliminary
questions as to his training, education and expertise. We’ll go to that
when we reach Section 49. For now diha lang sa ta.
Let’s go to Section 3, definition of terms. I just want you to
remember what these terms are. No need to memorize. Okay?!
What is a sample, DNA, DNA evidence, DNA profile or the genetic
information derived from DNA testing of a biological sample
obtained from a person which biological sample is clearly
identifiable as originating from that of the person. And DNA testing,
what is the meaning? A verified, credible and scientific method
which includes the extraction of a DNA profile of a sample, the
generation of DNA profiles and the comparison of the information
obtained from the DNA testing of biological samples for the
purposes of determining the reasonable certainty of whether or not
the DNA obtained from two or more distinct sample originates from
the same person. That is direct identification or if the biological
samples originated from related persons, kinship analysis. Because
normally, you have ½ of the DNA of your mother and ½ of the DNA
of your father. Right? So you can be proven to be related to your
mother and independently, you can be proven to be related to your
father. As simple as that. And finally, you have this term, probability
of parentage. It means that the numerical estimate or the likelihood
of parentage of the putative parent compared to the probability of a
random match of two unrelated individuals in a given population.
Just remember these terms.
Let’s go to Section 4, Application for DNA testing order. The
appropriate court may, at any time, either motu proprio or on
application of any person who has a legal interest in the matter in
litigation, order a DNA testing.
20:01-30:00 (Gillian Grancho)
Sec. 4. Application for DNA Testing Order. – The appropriate
court may, at any time, either motu proprio or on application of any
person who has a legal interest in the matter in litigation, order a
DNA testing. Such order shall issue after due hearing and notice to
the parties upon a showing of the following:
1. A biological sample exists that is relevant to the case;
2. The biological sample: (i) was not previously subjected to the
type of DNA testing now requested; or (ii) was previously
subjected to DNA testing, but the results may require
confirmation for good reasons;
3. The DNA testing uses a scientifically valid technique;
4. The DNA testing has the scientific potential to produce new
information that is relevant to the proper resolution of the
case; and
5. The existence of other factors, if any, which the court may
consider as potentially affecting the accuracy of integrity of the
DNA testing.
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
If you looked at the paper that I wrote, I tried to make sense of the
term “Legal interest”. But it’s more on Civil Procedure the evidence;
it’s more of legal standing actually. Let’s skip that for now.
In reference to Sec 4(b), remember that there are many types of
DNA testing, you have STR,etc.
In reference to Sec 4(c), it somehow mirrors Daubert, that it must
have gain acceptance in the scientific community.
In reference to the last paragraph, now what do we immediately
relate this to? Having a DNA testing despite the fact that there has
been no case commenced, there’s no case pending in court. Mura
sya ug mode of discovery under Rule 23-29 of the Rules of Court. In
a way, there’s a mode of discovery under the Rule on Evidence.
Sec. 5. DNA Testing Order. – If the court finds that the
requirements in Section 4 hereof have been complied with, the court
shall –
1. Order, where appropriate, that biological samples be taken
from any person or crime scene evidence;
2. Impose reasonable conditions on DNA testing designed to
protect the integrity of the biological sample, the testing
process and the reliability of the test results, including the
condition that the DNA test results shall be simultaneously
disclosed to parties involved in the case; and
3. If the biological sample taken is of such an amount that
prevents the conduct of confirmatory testing by the other or
the adverse party and where additional biological samples of
the same kind can no longer be obtained, issue an order
requiring all parties to the case or proceedings to witness the
DNA testing to be conducted.
An order granting the DNA testing shall be immediately executory
and shall not be appealable. Any petition for certiorari initiated
therefrom shall not, in any way, stay the implementation thereof,
unless a higher court issues an injunctive order. The grant of DNA
testing application shall not be construed as an automatic admission
into evidence of any component of the DNA evidence that may be
obtained as a result thereof.
In reference to Sec 5(a), now we go back again in the basic postulate
that I want you to remember, you can always be compelled to
undergo DNA testing if you are a party to the case. What
case? It doesn’t matter. It can be criminal, civil or it can be a special
proceeding. It can be compelled.
In reference to Sec 5(c), it could be that the DNA sample is quite
minute, gamay na lang jud kaayo ang nabilin. It could be just traces
found in the crime scene that cannot be retested.
In the US, I read in an article that no matter how small the sample
is, they can replicate it by cloning. They can clone it, so bisang 1
drop lang, pwede sya ma 2 drops. I don’t know if you can do that
here in the Philippines.
“An order granting the DNA testing shall be immediately executory
and shall not be appealable”.
So if you’re going to question it what are you gonna do?
You’ll have to file a petition for certiorari. Just imagine
how difficult. You cannot appeal.
“Any petition for certiorari initiated therefrom shall not, in any
way, stay the implementation thereof, unless a higher court issues
an injunctive order.”
So, useless gihapon sya, unless you, as law practitioners,
if you’re going to question an order granting a
DNA test, you have to file an action for certiorari
and you have to apply for a writ of preliminary
injunction or temporary restraining order.
The Supreme Court is now teaching you what to do.
What’s the effect of filing of a petition for certiorari under
Rule 65? It shall not, in any way, stay the implementation
thereof, unless there’s an injunctive relief.
“The grant of DNA testing application shall not be construed as an
automatic admission into evidence of any component of the DNA
evidence that may be obtained as a result thereof.”
Reasons:
1. DNA evidence, as any other type of evidence, must pass
the basic tests of relevancy and competency;
2. DNA evidence must still be formally offered in order for
the court to consider it; and
3. A witness must still testify as to the result of the test.
Those are the reasons based on the basic principles that
we already learned related to evidence.
Again, DNA testing order is like a mode of discovery. So, it is a built-
in mode of discovery in DNA evidence. But take note,
• In modes of discovery, the results are not automatically
admitted into evidence, as a general rule. They have to be
formally offered to be admitted. In the case of a
deposition, the deponent must still testify in court,
subject to certain exceptions.
We will learn later on that when the deponent does not
come to court to repeat the contents of his deposition, it
will be stricken off, as a general rule. It will not be
admitted into evidence because it is considered as
hearsay. Hearsay ang tawag nato ana because there’s no
opportunity for cross-examination.
Remember also that there are exceptions, when the
deponent is already dead or unable to testify, etc. we
explain later on when we go to testimonial evidence.
• Under modes of discovery, we have Rule 28 (Physical and
Mental Examination of Persons). The Court may actually
order that you undergo a physical examination by the
doctor to determine injury, or mental examination. And
in Section 4, there is that waiver of privilege.
Rule 28, Section 4. Waiver of privilege. – By requesting and
obtaining a report of the examination so ordered or by taking the
deposition of the examiner, the party examined waives any privilege
he may have in that action or any other involving the same
controversy, regarding the testimony of every other person who has
examined or may thereafter examine him in respect of the same
mental or physical examination.
What privilege are we talking about? We are talking about
physician-patient privilege communication. You go to a
doctor, and in order to encourage the patient to reveal everything to
his doctor, everything that happens there, the results of test, it is
supposed to be confidential.
A doctor cannot normally divulge medical information to a third
person, it remains a matter between the doctor and the patient.
What if it is about DNA evidence?
I present to you a hypothetical case, what if JZE married Maja and
had an affair with Bangs. Bangs got pregnant and delivered a baby
but JZE is not sure about the paternity of the child. So he privately
went to Dr. Hayden to have the DNA testing in secret. It turns out
that he is actually the father of the child.
Now, ordinarily, under the physician-patient privilege
communication rule, Dr. Hayden cannot be compelled to divulge
that DNA test. And because it will tend to blacken the reputation of
the patient, the physician-patient privilege communication rule will
apply.
00:30-0:40 (Until Section 10) (Jennifer Lim)
….The physician-patient privilege communication would apply.
However, suppose the DNA test was made in a civil case, filed by
Bangs against JZE, Bangs applied for and may be issued DNA
testing. Take note that the same DNA test been conducted under
Rule 28, the same rules would apply for the waiver of conditions of
DNA testing.
However, under the Rule on DNA Evidence, there is no rule on
waiver or on physician-patient privilege. In fact, in several cases
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Can the physician who conducts the DNA testing, according to the
order of the court, be compelled to divulge the results? YES. Why?
The physician-patient privilege communication rule does not apply
in court-ordered testing. There’s no such thing as privilege.
Let’s go to Section 6 which, to my mind, is the most controversial.
Section 6. Post-conviction DNA Testing. – Post-conviction
DNA testing may be available, without need of prior court order, to
the prosecution or any person convicted by final and executory
judgment provided that a biological sample exists,
such sample is relevant to the case, and the testing would probably
result in the reversal or modification of the judgment of conviction.
So, it might affect the judgment of conviction. Remember, we have
discussed a lot of cases for post-conviction DNA testing. Yet, for
some years, the Supreme Court has been reluctant in allowing
requests for DNA tests. We have Penaso, De Villa, Rayle,
Andal, and Macapal prior to the promulgation of the Rules on
DNA Evidence. In all those cases, the Supreme Court denied the
requests. Why? Because it was stubborn in denial or that the
discharge of semen is not an element of rape.
What the Supreme Court favored were testimonies that identified
the accused as to the crime. But we have yet to figure out if, pag
promulgate ba sa Supreme Court on DNA Evidence, mag change na
ba ni or it’s still the old song the Supreme Court has been singing
that pregnancy is not an element of rape.
Rape and DNA Evidence in Post-conviction DNA Testing.
Foremost on that would be People vs. Umanito (October 6,
2007).
. 2. The SC has always been consistent in saying that a
PEOPLE v UMANITO (2007 & 2009)
What happened here was that there was already a judgment
convicting Umanito of rape. The SC, when it promulgated the Rule
on DNA Evidence, gave it retroactive effect and applied it to case of
Umanito. Such that the SC, through Justice Tinga, remanded it to
the lower court to determine whether or not kinahanglan ba ug
DNA. So, was there a DNA match? The result when it came back to
the Supreme Court was 99.9999% match.
Given that the results of the Court-ordered DNA testing conforms
with the conclusions of the lower courts, and that no cause is
presented for us to deviate from the penalties imposed below, the
Court sees no reason to deny Umanito’s Motion to Withdraw
Appeal.
Facts: The instant case involved a charge of rape. The accused
Rufino Umanito was found by the RTC guilty beyond reasonable
doubt of the crime of rape. The alleged 1989 rape of the private
complainant, AAA, had resulted in her pregnancy and the birth of a
child hereinafter identified as “BBB.”
In view of that fact, as well as the defense of alibi raised by Umanito,
the Court deemed uncovering whether or not Umanito is the father
of BBB.
The DNA analysis on the Buccal Swabs and Blood stained on FTA
paper taken from [AAA], [BBB], and Umanito, to determine
whether or not Umanito is the biological father of [BBB], showed
that there is a Complete Match in allof the 15 loci tested between the
alleles of Umanito and [BBB]; That based on the above findings,
there is a 99.9999% probability of paternity that Umanito is the
biological father of BBB.
RULING: Court resolved, for the very first time, to apply the then
recently promulgated New Rules on DNA Evidence (DNA Rules).
The DNA testing has evinced a contrary conclusion, and that as
testified to by AAA, Umanito had fathered the child she gave birth to
on 5 April 1990, nine months after the day she said she was raped
by Umanito.
The disputable presumption that was established as a result of the
DNA testing was not contradicted and overcome by other evidence
considering that the accused did not object to the admission of the
results of the DNA testing (Exhibits “A” and “B” inclusive of sub-
markings) nor presented evidence to rebut the same.
By filing Motion to Withdraw Appeal, Umanito is deemed to have
acceded to the rulings of the RTC and the Court of Appeals finding
him guilty of the crime of rape, and sentencing him to suffer the
penalty of reclusion perpetua and the indemnification of the private
complainant in the sum of P50,000.00.
court, because that was the first time the court applied the rule on
DNA Evidence. It would be quite instructive
PEOPLE v MAGLENTE
June 28, 2009
Facts: Complainant alleges that Maglente, her biological father,
had subjected her to sexual abuse as early as 1997, when she was
still nine (9) years old, until 13 July 2002, when she reached 14
years of age. As a result of her father’s molestation, she became
pregnant and delivered a baby boy on October 1, 2002, which she
gave up for adoption. On cross-examination, private complainant
testified that she was willing to have her baby undergo DNA testing
but the baby’s whereabouts were unknown to her.
Ana ang accused, dapat nay DNA kay for all we know, dili match
amoang DNA. Now, wala man ta kabalo asa ang bata.
Held: Even if the DNA tests were conducted and it established that
appellant had not fathered the child, it would still be inconclusive to
prove that appellant was not guilty of having raped private
complainant. He cannot obtain an acquittal based on the
circumstances of private complainant’s pregnancy.
Why? Impregnation is not an element of rape. Even proof that the
child was fathered by another man does not show that the appellant
is not guilty. For the conviction of an accused, the pregnancy of the
victim is not required to be proved, since it is sufficient that the
prosecution establish beyond reasonable doubt, as it had in this
case, that the accused had forced sexual relations with the victim.
Why is the Supreme Court so adamant even with the Rule on DNA
Evidence? Because the SC knows that:
1. Not all rapes end in pregnancy.
woman, who has been raped, would not go to the
humiliation, for a fabricated charge of rape. Especially so,
if it is against a relative. The SC has time and again ruled
that.
*Story about sir on not accepting rape cases. I would prefer to be
defense counsel because all you have to prove is the existence of
reasonable doubt.*
What happens when the results are favorable? Let’s suppose
that after conviction, DNA testing is made and the results are
favorable to the accused? I can say that you are not the one who
fathered the child or it’s not your DNA found on the semen sample,
but you were already guilty. What will happen? What would be the
remedy, in case the post-conviction DNA?
Section 10. Post-conviction DNA Testing – Remedy if the
Results Are Favorable to the Convict. – The convict or the
prosecution may file a petition for a writ of habeas corpus in the
court of origin if the results of the post-conviction DNA testing are
favorable to the convict. In the case the court, after due hearing
finds the petition to be meritorious, it shall reverse or modify the
judgment of conviction and order the release of the convict, unless
continued detention is justified for a lawful cause.
A similar petition may be filed either in the Court of Appeals or the
Supreme Court, or with any member of said courts, which may
conduct a hearing thereon or remand the petition to the court of
origin and issue the appropriate orders.
40:01 – 50:00 (Edsam Andit)
Section 10, RODE
Post-conviction DNA Testing – Remedy if the Results Are
Favorable to the Convict. – The convict or the prosecution may file
a petition for a writ of habeas corpus in the court of origin if the
results of the post-
conviction DNA testing are favorable to the convict. In the case the
court, after due hearing finds the petition to be meritorious, it shall
reverse or modify the judgment of conviction and order the release
of the convict, unless continued detention is justified for a lawful
cause.
A similar petition may be filed either in the Court of Appeals or the
Supreme Court, or with any member of said courts, which may
conduct a hearing thereon or remand the petition to the court of
origin and issue the appropriate orders.
If the result of the post-conviction hearing testing, are favorable to
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Reynaldo de Villa was sentenced to death for raping his 12-year-
old niece, Aileen Mendoza. (Imaginun nato na si Reynaldo de Villa
kay si Ian Veneracion) who had subsequently given birth to a baby
girl. De Villa had always maintained his innocence from the very
beginning, but no paternity test had been carried out to establish
whether or not he was the father of the child.
Now, because de Villa was in priSo,n, Cora de Ungria—she’s actually
very famous right now, she’s like the Sherlock Holmes of the
Philippines, head of the DNA laboratory analysis of UP—could not
obtain a DNA sample from de Villa directly. So,, what did she do?
She did So,mething cloak-and-dagger. Ang gibuhat niya, she
enlisted the help of the priSo,n priest. Padre. Sa atong palabas kay si
Fr. Gus kuno na. He visited de Villa carrying a sterile blade and a
blood collection vial hidden beneath his clothes. Di gud na pwede
dapat. You can’t do that. You’re smuggling, what? A bladed weapon!
So,, di na sya dapat pwede, but he was able to do it.
But that’s only one part of the equation. Kinahanglan gihapon niya’g
blood sample to compare with the DNA sample already given by de
Villa. So, de Ungria needed a sample from the child who was already
10 years old daw. De Villa’s grandSo,n, a schoolmate of Mendoza’s
daughter, was coached to organize a spitting competition in the
playground. Just imagine, noh? Uy, dinhia ta sa playground! O,
mangluwa ta! Padaghanay ta’g luwa! (LOL) Just imagine a spitting
competition. So, he collected the girl’s spit in a cup and de Ungria
used it to generate a DNA code. So, the 2 sides of the equation is
complete. Biological sample from de Villa and biological sample
from the putative child. So, the results confirmed that de Villa was
not the girl’s father.
But the Supreme Court refused to consider the new evidence and
So, he remained on death row. So, they have no choice now but to
file a petition for habeas corpus, citing that de Villa was wrongfully
convicted. The Supreme Court said, “Petitioner invokes the remedy
of habeas corpus to seek a re-examination of the records without
asserting any legal grounds therefor. Unsa man gyud diay ning mga
legal grounds ani?
• There has been a deprivation of a Constitutional right
resulting in the restraint of the liberty of the person.
• The Court has no jurisdiction to impose the sentence.
• An excessive penalty has been imposed as such sentence
is void as to such excess.
These are the 3 grounds that the SC gave when filing for habeas
corpus questioning a conviction. And none in these instances does it
say that new evidence can be a ground to invoke the extraordinary
writ of habeas corpus. Further, the SC said that the petitioner
invokes the writ to assail a final judgement of conviction without
providing a legal ground thereof.
The SC is merely saying here na “banga kaayo imong abogado!”
Ngano man siya nag file ug writ of habeas corpus without citing a
legal ground? So, it is actually a denial of the issuance of the writ of
habeas corpus on the ground that you did not properly pray for it.
That’s what the SC is saying. It is based on technicality.
So, has De Villa now been abrogated by Sec. 10? Because Sec. 10 is
now saying that favorable results in DNA testing can now be used as
a ground for habeas corpus. So, in a way, it is a reversal. Tama ba?
Not really. Because it is logical to assume in this case that had the
petition had a proper ground and been properly invoke and prayed
for, a different remedy might have issued.
Take note of the following pronouncements in the De Villa
case:
• The denial of a Constitutional right was not alleged by the
petitioner. Hence, how can there be a denial of a
Constitutional right when it was not alleged? That was the
reason why the petition was denied.
• The petitioner invokes a remedy to seek a re-examination
of the records of In re: De Villa without invoking a proper
legal ground.
TAKE NOTE!!!
You have to take note now that Sec. 10 can now be a viable legal
Rules on DNA evidence.
So, What the SC said before is that the relief (post DNA testing)
is outside of the scope of the writ of habeas corpus petition, is now
to be considered as officially abrogated by the promulgation of the
Rules on DNA evidence.
And you need to recall also that in the case of De Villa, the Supreme
Court’s decision not to grant to motion here was based on the
principle that pregnancy is not an element of rape. The SC has
consistently upheld this ever since the Rule on DNA Evidence was
promulgated. Maglente, Hipona, Cabigkis, Lucero. Wa gyud. Way
pag bag-o. However, paternity or the negation thereof should be
used as evidence to exonerate the accused or convict in a rape case if
it is warranted by the factual milieu of the case. At least, that’s what
I suppose. As I told you previously, the SC need not be so stubborn.
That without looking at the facts of the case, it would just
automatically conclude that “pregnancy is not an element of rape”.
For example, in de Villa, the complaint and the judgment made
reference to the fact that it was the act of the rape that got the niece
pregnant and for her to conceive and bear a child. Since you alleged
that, you have to prove that. Now what happens if the DNA testing
result that disproves that? At the very least, it becomes reasonable
doubt. As simple as that.
So, the request for paternity testing was also consistent with the
defense presented at trial. The appellant’s testimony of his
incapacity for sexual intercourse due to his advanced age was
supported by his wife’s testimony. Di ba mao ni iyahang defense?
Na dili niya kaya buhaton. But there were also allegations of
multiple perpetrators or of promiscuous behavior of the victim.
More importantly, records show that the trial court based its
decision entirely on the birth of the child. Di ba? Giingon sa lower
court na because a child was born the child was raped. You cannot
now deny sexual intercourse because in fact nabuntis. Nanganak.
In Penaso even…
50:01 – 1:00 (Dane Viola)
The criminal complaint alleged that as a result of the act, an
unwanted pregnancy resulted.
If what was alleged was that “I got pregnant because I was raped”, if
the accused was not the father, then clearly the complainant lied.
But the SC is so stubborn in saying that pregnancy is not an element
of the crime of rape. We have to look at the factual milieu of the case
and not just stubbornly apply such doctrine.
No matter how much you argue with this escape hatch, if the SC
wants to wash its hands by saying that pregnancy is not an element
of rape, even if you are accused of estafa, pregnancy will still not be
an element of rape.
PP v Basallo
For a man who vehemently asserts his innocence, it mystifies the
mind that appellant would not exhaust all available avenues to
prove his innocence especially DNA testing that would conclusively
prove that he is not the father of ABC’s son who is alleged to be the
fruit of his crime.
It would be logical to assume that in the case of Basallo, had there
been a DNA testing that would conclusively prove that he was not
the father of the child, would the SC rule that he is entitled to be
acquitted? NO. The SC will still say that pregnancy is not an element
of rape.
You don’t even have to read this cases because you know what the
outcome will be. So what is the purpose of post-conviction DNA
testing when it can never successfully assail the conviction on the
simplistic ground that pregnancy is not an element of rape.
Going back to the case of De Villa, the head of the laboratory of UP
was so convinced of the innocence of De Villa that she marshaled
international pressure which then led Pres. GMA to pardon him,
still 11 years of his life was gone. Imagine he was 67 y.o at the time
of the alleged rape and when he was pardoned he was already 78
and definitely he cannot rape anymore.
It’s not as if all convictions are correct convictions, there are a lot of
wrongful convictions. Realizing this, Pres GMA signed RA 9346
once again abolishing the death penalty.
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Sec. 7. Assessment of probative value of DNA evidence. – In
assessing the probative value of the DNA evidence presented, the
court shall consider the following:
a. The chair of custody, including how the biological
samples were collected, how they were handled, and the
possibility of contamination of the samples;
b. The DNA testing methodology, including the procedure
followed in analyzing the samples, the advantages and
disadvantages of the procedure, and compliance with the
scientifically valid standards in conducting the tests;
c. The forensic DNA laboratory, including accreditation by
any reputable standards-setting institution and the
qualification of the analyst who conducted the tests. If the
laboratory is not accredited, the relevant experience of the
laboratory in forensic casework and credibility shall be
properly established; and
d. The reliability of the testing result, as hereinafter
provided.
e. The provisions of the Rules of Court concerning the
appreciation of evidence shall apply suppletorily.
f. This mirrors almost completely the SC ruling in the case
of PP v Vallejo.
g. Sec. 8. Reliability of DNA Testing Methodology. – In
evaluating whether the DNA testing methodology is
reliable, the court shall consider the following:
a. The falsifiability of the principles or methods
used, that is, whether the theory or technique
can be and has been tested;
b. The subjection to peer review and publication
of the principles or methods;
c. The general acceptance of the principles or
methods by the relevant scientific community;
d. The existence and maintenance of standards
and controls to ensure the correctness of data
generated;
e. The existence of an appropriate reference
population database; and
f. The general degree of confidence attributed to
mathematical calculations used in comparing
DNA profiles and the significance and
limitation of statistical calculations used in
comparing DNA profiles.
This is practically what the Daubert Test is all about in the case of
PP v Yatar.
Sec. 9. of DNA Testing Results. – In evaluating the results of DNA
testing, the court shall consider the following:
a. The evaluation of the weight of matching DNA evidence
or the relevance of mismatching DNA evidence;
b. The results of the DNA testing in the light of the totality of
the other evidence presented in the case; and that
c. DNA results that exclude the putative parent from
paternity shall be conclusive proof of non-paternity. If the
value of the Probability of Paternity is less than 99.9%,
the results of the DNA testing shall be considered as
corroborative evidence. If the value of the Probability of
Paternity is 99.9% or higher there shall be a disputable
presumption of paternity.
The important provision here would be paragraph (c), this is
conclusive evidence in the same way that age in certain cases may
also be proof of lack of discernment for offenders below 9 yrs of age.
I don’t know if DNA is positive or confirmatory whether is a win or a
loss, because I know a lawyer who has undergone multiple paternity
You cannot refute a 99.99999.
Weight of Matching DNA Evidence
Ok take note Weight means reliability and probative value of
evidence.
So if the DNA samples match, the court is tasked to determine
whether the DNA testing result is reliable and what evidentiary
value it will assign to it . whether or not the evidence is to be
believed.
Relevance of mismatching DNA evidence
And you know that in relevancy, you know the definition of that.
Thus, under this factor, the court should consider whether or not
the fact that the DNA profiles do not match bears a relation to the
fact in issue in the case.
For example:
If the seamen found in the vagina of the victim does not match the
DNA profile of the accused. Would it be relevant to the issue on
whether or not the accused raped the victim?
PEOPLE vs. CABIGCUEZ, G.R. No. 185708, (September 29,
2010)
Where the SC still said, dili lng gihapon. Neither a positive DNA
match of the seamen nor the presence of spermatozoa is essential in
finding that rape was committed.
Wala gihapon ang gina-ingon sa SC. Nonsense lagi kaayo sa tinuod
lng.
Results of DNA testing in the light of the totality of the
other evidence:
A positive DNA match is unnecessary when the totality of the
evidence presented before the court points to no other possible
conclusion than the appellant raped the private offended party.
A positive DNA match may strengthen the evidence for the
prosecution, but an inconclusive DNA test result may not be
sufficient to exculpate the accused, particularly when there is
sufficient evidence proving his guilt.
So you have to look at the totality. Dili lng katong DNA.
Now take note with that ruling of the SC in Cabigcuez that a positive
DNA match may only strengthen evidence of the prosecution.
Strengthen lng, it is not the ultimate determinant of guilt. It means
that DNA can merely be circumstantial evidence for the
prosecution.
So its just one of the circumstances mentioned in rule 133, section 4
which we will discuss at the proper time.
Rule 133, Section 4. Circumstantial evidence, when
sufficient.
Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(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.
Now here is an interesting case. The case of PEOPLE vs. YAU
(2014)
It is a case of kidnapping for ransom. Ok. And the whole time of
capture. Katong gi kidnap na victim. The accused always wore a red
mask. Naka-maskara all the time. So wala gyud niya nakita.
Now when the victim was rescued. Of course naka escape ang
kidnappers pero nabilin sa crime scene ang red mask. So DNA
evidence. the dead skin cells for example. That is a source of DNA.
So a test conducted by the Federal Bureau of Investigation reveals
that the DNA found I the mask used by private complainant’s captor
matched that of appellant Petrus Yau. So imagine ni import pa ta sa
US. Nagpa-conduct pa ta ug test sa US Federal Bureau of
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
other conclusion that Yau was the author of the kidnapping for
ransom and he was convicted for the crime.
So DNA evidence there was actually used as circumstantial evidence
of the guilt of the accused for the crime of kidnapping for ransom.
More importantly, again i already told you this, kaning letter C, 99.9
lower or 99.9 higher.
RODE Sec. 9. on DNA Testing Results. –
In evaluating the results of DNA testing, the court shall consider the
following:
C) DNA results that exclude the putative parent form paternity shall
be conclusive proof on non-paternity. If the value of the Probability
of Paternity is less than 99.9%, the results of the DNA testing shall
be considered as corroborative evidence, if the value of the
Probability of Paternity is 99.9% or higher there shall be a
disputable presumption of paternity.
So just to present visually to you what will happen if it is less than
99.9%. So 99.89999 and below, it is used as corroborative evidence.
So it should be used in addition to the traditional proof of filation.
99.9% or higher as disputable presumption of paternity.
Disputable presumption ra gihapon siya. Sounds familiar to you?
Kaning 99.9 or higher or 99.9 or lower. Yes because we already
discussed that. It was practically taking the ruling in SC in the case
of Herrera vs. Alba and turned it into a rule. Mao ng nahitabo diri.
Diri lang, naa siyay gigamit na term “W” – Probability Of Paternity
instead of Parentage.
Okay, so 99.99% – less than 99.99%, or 99.99% or higher.
So the question is: Is DNA testing viable as a means of proving
filiation? Nay naga claim na anak nimo siya. How does that putative
child prove na anak nimo siya?
AGUILAR VS. SIASAT: (01/28/15)
Walay DNA diri but you can make that connection to DNA evidence.
The filiation of illegitimate children, like legitimate children, is
established by
1. the record of birth appearing in the civil register or a final
judgment; or
2. an admission of legitimate filiation in a public document
or a private handwritten instrument and signed by the
parent concerned.
In the absence thereof, filiation shall be proved by
1. the open and continuous possession of the status of a
legitimate child; or
2. any other means allowed by the Rules of Court and
special laws.
“any other means allowed by the ROC and special laws”
Then probably, the Rule on DNA Testing can be considered as
those other means. Pwede siya na ma-include diha.
Mahimo siya na other evidence, merely tending to prove paternity
aside from record of birth, a will, a statement before a court of
record, etc., is essential in order to establish the child’s
acknowledgement.
LUCAS VS. LUCAS: (2011)
Antiquated na siya na principle but the SC still continues to apply it.
There are four significant procedural aspects of a traditional
paternity action which the parties have to face:
1) a prima facie case,
2) affirmative defenses,
If you recall the case of Cabigquez – kadto bitaw they had to go
somewhere to do it, with the maid, gi tour pa gani niya para lang
bigyan. Just imagine. Unya nabuntis, so got pregnant and gave birth
8 months later. Di ba mao nah siya? Unsay gigamit didto? Physical
resemblance lang. So antiquated because a lot of people look alike,
especially the Indians, they all look alike.
Now, chismis ta gamay.
(The talk about the Kardasians – that Kourtney Kardasian does not
look like her dad.
Allegedly, OJ Simpson is her father.)
1:10:01 – 1:20:00 (Benrich Tan)
Cases Surveying DNA Paternity Suits
ESTATE OF ONG vs. DIAZ (2007)
Facts:
A complaint for compulsory recognition with prayer for support
pending litigation was filed by minor Joanne Diaz, represented by
her mother and guardian, Jinky, against Rogelio G. Ong, before the
RTC of Tarlac City.
Jinky and Rogelio got acquainted in November 1993 in Tarlac City.
This developed into friendship and later blossomed into love. At this
time, however, Jinky was already married to a Japanese national.
From January 1994 to September 1998, Jinky and Rogelio
cohabited and lived together. From this live-in relationship, Joanne
Rodjin Diaz was conceived and born on 25 February 1998. In
September 1998, Rogelio abandoned Joanne and Jinky, and
stopped supporting the child, alleging that he is not the father of the
child. While the case was pending, Rogelio died.
So the child’s claim would be against Rogelio’s estate. The Court
held that the burden of proving paternity is on the person who
alleges that the putative father is the biological father of the child.
There are four significant procedural aspects of a traditional
paternity action which parties have to face: a prima facie case,
affirmative defenses, presumption of legitimacy, and physical
resemblance between the putative father and child.
A child born to a husband and wife during a valid marriage is
presumed legitimate. As a guaranty in favor of the child and to
protect his status of legitimacy, Article 167 for the Family Code
provides: Article 167. The children shall be considered legitimate
although the mother may have declared against its legitimacy or
may have been sentenced as an adulteress.
With the advancement in the field of genetics, and the availability of
new technology, it can now be determined with reasonable certainty
whether Rogelio is the biological father of the minor, through DNA
testing.
However, Rogelio has long been dead.
Issue:
Is DNA testing still possible? YES.
Ruling:
The death of the petitioner does not ipso facto negate the
application of DNA testing for as long as there exist appropriate
biological samples of his DNA.
In short, DNA can still be seen in inanimate objects.
The term biological sample means any organic material originating
from a person’s body, even if found in inanimate objects, that is
susceptible to DNA testing. This includes blood, saliva, and other
body fluids, tissues, hairs and bones.
Thus, even if Rogelio already died, any of the biological samples as
enumerated above as may be available, may be used for DNA
testing. In this case, petitioner has not shown the impossibility of
obtaining an appropriate biological sample that can be utilized for
the conduct of DNA testing. And even the death of Rogelio cannot
bar the conduct of DNA testing.
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
In a petition to establish illegitimate filiation, the SC was confronted
with the question: Is a prima facie showing of reasonable probability
of paternity necessary before a court can issue a DNA testing order?
(What’s a prima facie case? You prove preliminarily that there is a
probability of parentage. How do you do that? So prior to asking for
a DNA testing order, you present witnesses tending to show the
traditional proof of filiation. Nga ning-aknowledge niya na anak siya
niya; nagsign siya ug birth certificate, etc.) (Note that Section 4 of
the Rule on DNA Evidence does not mention prima facie case as a
requirement.)
HELD: In some states, to warrant the issuance of DNA testing
order, there must be a show cause hearing wherein the applicant
must first present sufficient evidence to establish a prima facie case
or a reasonable possibility of paternity or good cause for the holding
of the test.
The same condition precedent should be applied in our jurisdiction
to protect the putative father from mere harassment suits. Thus,
during the hearing on the motion for DNA testing, the petitioner
must present prima facie evidence or establish a reasonable
possibility of paternity. (The SC is adding this as a requirement
despite its absence in Sec.4)
Notwithstanding these, it should be stressed that the issuance of a
DNA testing order remains discretionary upon the court. The court
may, for example, consider whether there is absolute necessity for
the DNA testing. If there is already preponderance of evidence to
establish paternity and the DNA test result would only be
corroborative, the the court may, in its discretion, disallow a DNA
testing.
Atty JZE (from 2018 recording): Just go over this case. Nothing
much here, it’s too technical.
Sec. 11. Confidentiality. – DNA profiles and all results or other
information obtained from DNA testing shall be confidential.
Except upon order of the court, a DNA profile and all results or
other information obtained from DNA testing shall only be released
to any of the following, under such terms and conditions as may be
set forth by the court:
A. Persons from whom the sample was taken;
B. Lawyers representing parties in the case or action where
the DNA evidence is offered and presented or sought to be
offered and presented;
C. Lawyers of private complainants in a criminal action;
D. Duly authorized law enforcement agencies; and
E. Other persons as determined by the court.
Whoever discloses, utilizes or publishes in any form any
information concerning a DNA profile without the proper court
order shall be liable for indirect contempt of the court wherein such
DNA evidence was offered, presented or sought to be offered and
presented. Where the person from whom the biological sample was
taken files a written verified request to the court that allowed the
DNA testing for the disclosure of the DNA profile of the person and
all results or other information obtained from the DNA testing, the
same may be disclosed.
Sec. 12. Preservation of DNA Evidence. The trial court shall preserve
the DNA evidence in its totality, including all biological samples,
DNA profiles and results or other genetic information obtained
from DNA testing. For this purpose, the court may order the
appropriate government agency to preserve the DNA evidence as
follows:
In criminal cases:
i. for not less than the period of time that any person is
under trial for an offense; or
ii. in case the accused is serving sentence, until such
time as the accused has served his sentence;
In all other cases, until such time as the decision in the case where
the DNA evidence was introduced has become final and executory.
The court may allow the physical destruction of a biological sample
before the expiration of the periods set forth above, provided that:
• A court order to that effect has been secured; or
• The person from whom the DNA sample was obtained has
consented in writing to the disposal of the DNA evidence.
In criminal cases (Atty. JZE: Pay attention to the time period
b. The law intends to mean periods including the case
pending appeal or automatic review before SC, because
it’s conceivable that the SC can remand and reorder DNA
testing. Thus, it should be preserved even during that
period.
c. in case the accused is serving sentence, until such time as
the accused has served his sentence;
Example: X has been convicted of a crime carrying the penalty of
reclusion perpetua or life imprisonment.
Example #2: Destierro also included, because it’s still a sentence
(restrain over liberty).
1:20:01 – 1:30:00 (Anton Maligad)
Destiero will still apply because it is a restraint as to your liberty.
In all other cases including civil cases, until such time as the
decision in the case where the DNA Evidence was introduced has
become final and executory.
The Court may allow the physical destruction of the biological
sample before the expiration of the period set forth. Provided, that a
court order for that effect has been secured or the person from
whom the DNA sample was obtained has consented in writing to the
disposal of the DNA evidence. [A requirement of Preservation]
(Rules on DNA Evidence)
Sec. 13. Applicability to Pending Cases. Except as
provided in Section 6 and 10 hereof, this Rule shall apply
to cases pending at the time of its effectivity.
Just take note of the case of People vs. Umanito. (Read in full text)
PEOPLE vs. UMANITO
In case proof of filiation or paternity would be unlikely to
satisfactorily establish or would be difficult to obtain, DNA Testing,
which examines genetic codes from body cells of the illegitimate
child and any physical residue of the long dead parent could be
resorted to.
If you recall that the rule was promulgated and the Supreme Court
ordered a remand that the pleading has taken a new name.
Sec. 14. Effectivity. This Rule shall take effect on October
15, 2007, following publication in a newspaper of general
circulation.
SURVEY OF CASES ON DNA AND RIGHT OF ACQUITTAL
PEOPLE vs. PASCUAL (January 20, 2009)
There is DNA testing but the result was not good, because the
specimen submitted (stained vaginal smear) and the dirty white
panty had already undergone blood testing. So there already been
prior blood testing done.
Remember: That in the DNA Testing Standard Methodology, that if
such has been subjected to previous tests it has the result of
degrading the sample.
Q: Does the result of the DNA Examination, which was already
degraded by prior testing, entitle the accused-appellant to acquittal?
A: The Supreme Court said that “NO, you are not entitled to an
acquittal. Even in the light of a flawed procedure, that does not
entitle the appellant to an acquittal.”
PEOPLE vs. HIPONA
The appellant here argues that he should only be held liable for
robbery and not for the Complex Crime of Rape with Homicide.
He cites the testimony of the prosecution witness Aida Villora-
Magsipoc, DNA expert of the NBI, that she found the vaginal smears
taken from the victim to be negative of the appellant’s DNA.
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
PEOPLE vs. CABIGCUEZ
Neither a positive match of the semen nor the presence of
spermatozoa is an essential finding that rape was committed. The
important consideration in rape cases is not the emission of semen
but the penetration of the female genitalia by the male organ.
PEOPLE vs. LUCERO
The DNA test is not essential, while there exists other evidence
pinning down accused-appellant as the perpetrator. Indeed, if he
honestly thought that the DNA test could have proved his
innocence, he could have asked for the conduct of said test during
his trial instead of belatedly raising it on appeal, and attempting to
dictate upon the prosecution what course of actions it should have
undertaken.
So what does “People vs. Lucero” tell you?
It tells you that if you are adamant that a DNA test would prove
your innocence, then have it done at the trial court level and not
before the Court of Appeals and not before the Supreme Court.
LEJANO vs. PEOPLE otherwise known as the Vizconde
Massacre
Introduction: The Vizconde Massacre is the multiple homicides of
the persons of the Vizconde family on June 13, 1991 at their
residence in BF Homes, Parañaque.
Estrellita, 49, had suffered thirteen (13) stab wounds; Carmela, 18,
had suffered seventeen (17) stab wounds and had been raped before
she was killed; and Jennifer, 6, had nineteen (19) stab wounds.
Lauro Vizconde, Estrellita’s husband, and the father of Carmela and
Jennifer, was in the United States on business when the murders
took place.
Suspects:
• Hubert Webb;
• Police Officer Biong
• Mike Estrada
Four years after the massacre, in 1995, the NBI announced that it
had solved the crime. It presented star-witness Jessica M. Alfaro,
one of its informers, who claimed that she witnessed the crime.
(Saludo kaayo si Judge Tolentino sa iya. Her testimony was
believed.) She pointed to the accused Hubert Jeffrey P. Webb,
Antonio tony Boy Lejano, Artemio Dong Ventura, Michael A.
Gatchalian, Hospicio Pyke Fernandez, Peter Estrada, Miguel Ging
Rodriguez, and Joey Filart as the culprits. She also tagged accused
police officer, Gerardo Biong, as an accessory after the fact. Relying
primarily on Alfaro’s testimony, on August 10, 1995, the public
prosecutors filed an information for rape with homicide against
Webb, et.al.
On January 4, 2000, after four (4) years of arduous hearings, the
trial court rendered judgment, finding all the accused guilty as
charged and imposing on Webb, Lejano, Gatchalian, Fernandez,
Estrada, and Rodriguez the penalty of reclusion perpetua and on
Biong, an indeterminate prison term of 11 years, 4 months, and 1
day to 12 years.
On appeal, the CA affirmed the trial courts decision. On motion for
reconsideration by the accused, the CA’s Special Division of 5
members voted 3 against 2 to deny the motion.
During the appeal to the SC, the Court issued a Resolution granting
the request of Webb to submit for DNA analysis the semen
specimen taken from Carmela’s cadaver, which specimen was
believed to be still under the safekeeping of the NBI. The Court
granted the request pursuant to Section 4 of the Rule on DNA
Evidence.
Unfortunately, on April 27, 2010 the NBI informed the Court that it
no longer has custody of the specimen, the same having been turned
over to the trial court. The trial record shows, however, that the
specimen was not among the object evidence that the prosecution
offered in evidence in the case.
The outcome prompted accused Webb to file an urgent motion to
acquit on the ground that the government’s failure to preserve such
vital evidence has resulted in the denial of his right to due process.
Webb claims, citing Brady v. Maryland, that he is entitled to
outright acquittal on the ground of violation of his right to due
process given the State’s failure to produce on order of the Court
either by negligence or willful suppression the semen specimen
taken from Carmela.
HELD: The medical evidence clearly established that Carmela was
raped and, consistent with this, semen specimen was found in her.
It is true that Alfaro identified Webb in her testimony as Carmela’s
rapist and killer but serious questions had been raised about her
credibility. At the very least, there exists a possibility that Alfaro had
lied. On the other hand, the semen specimen taken from Carmela
cannot possibly lie. It cannot be coached or allured by a promise of
reward or financial support. If, on examination, the DNA of the
subject specimen does not belong to Webb, then he did not rape
Carmela. It is that simple. Thus, the Court would have bgeen able to
determine that Alfaro committed perjury in saying that he did.
Still, Webb is not entitled to acquittal for the failure of the State to
produce the semen specimen, for one thing the ruling in Brady v.
Maryland that he cites has long been overtaken by the decision in
Arizona v. Youngblood, where the U.S, Supreme Court held that due
process does not require the State to preserve the semen specimen
although it might be useful to the accused unless the latter is able to
show bad faith on the part of the prosecution or the police.
For, another, when Webb raised the DNA issue, the rule governing
DNA evidence did not yet exist, the country did not yet have the
technology for conducting the test, and no Philippine precedent had
as yet recognized its admissibility as evidence. Consequently, the
idea of keeping the specimen secure even after the trial court
rejected the motion for DNA testing did not come up. Indeed,
neither Webb nor his co-accused brought up the matter of
preserving the specimen in the meantime.
Parenthetically, after the trial court denied Webb’s application for
DNA testing, he allowed the proceeding to move on when he had on
at least 2 occasions gone up to the CA or the SC to challenge alleged
arbitrary actions taken against him and the other accused. They
raised the DNA issue before the CA but merely as an error
committed by the trial court in rendering its decision in the case.
None of the accused filed a motion with the appeals court to have
the DNA test done pending adjudication of their appeal. This, even
when the SC had in the meantime passed the rules allowing such
test. Considering the accused’s lack of interest in having such test
done, the State cannot be deemed put on reasonable notice that it
would be required to produce the semen specimen at some future
time.
1:30:01 – 1:40:00 (Angel Deiparine)
On April 27, 2010, the NBI informed the Court that it no longer has
custody of the specimen, the same having been turned over to the
trial court. The trial court record shows, however, that the specimen
was not among the object evidence that the prosecution offered in
evidence in the case. Nawala ang semen specimen. Nobody knows
where it is. It was not preserved.
So the outcome prompted accused Webb to file an urgent motion to
acquit on the ground that the government’s failure to preserve such
vital evidence has resulted in the denial of his right to due process.
Beautiful argument: They were unable to preserve the vital piece of
evidence, then it resulted in the denial of the right to due process.
ISSUE: Whether or not the Court should acquit him outright, given
the government’s failure to produce the semen specimen that the
NBI found on Carmela’s cadaver, thus depriving him of evidence
that would prove his innocence.
Now, remember Webb here cited Brady vs. Maryland. Brady and his
companion Boblit were prosecuted for murder. Brady admitted his
involvement in the murder but claimed that Boblit had done the
actual killing. Mura bag accessory or accomplice ra ko. The
prosecution withheld the statement by Boblit confessing that he had
committed the act of killing himself.
So what was withheld here? The written admission by Boblit
confessing that he had committed the act of killing himself, which
means that Brady, wala siyay apil. Iyang penalty should be lesser.
The Supreme Court of the United States held that withholding
exculpatory evidence violates due process, where the evidence is
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Webb here claims that based on Brady vs. Maryland, he is entitled
to outright acquittal on the ground of violation of his right to due
process given the State’s failure to produce an Order of the court,
either by negligence, to secure the semen specimen.
You have to imagine here that at that time Webb here is very young.
He actually spent most of his adulthood in jail. So every gamay na
butas imo makita, you question.
Supreme Court said the medical evidence clearly established that
Carmela was raped and, consistent with this, semen specimen was
found in her body. It is true that Alfaro identified Webb in her
testimony as Carmela’s rapist and killer but serious questions had
been raised about her credibility. At the very least, there exists a
possibility that Alfaro had lied. On the other hand, the semen
specimen taken from Carmela cannot possibly lie. It cannot be
coached or allured by a promise of reward or financial support. If,
on examination, the DNA of the subject specimen does to belong to
Webb, then he did not rape Carmela. It is that simple.
So murag nag change ang tune. Katong niagi, pregnancy is not an
element of rape. Over and over again. But now, ginaingon, if it did
not belonged to him, he did not rape Carmela. It is that simple.
Nagbago lang kalit ang Supreme Court.
Still, Webb is not entitled to acquittal for the failure of the State to
produce the semen specimen at this late stage. For one thing, the
ruling in Brady vs. Maryland that he cites has long been overturned
by the decision in Arizona vs. Youngblood that held that due process
does not require the State to preserve the semen specimen although
it might be useful to the accused, unless, the latter is able to show
bad faith on the part of the prosecution or the police.
For another, when Webb raised the DNA issue, the rule governing
DNA evidence did not yet exist, the country did not yet have the
technology for conducting the test, and no Philippine precedent had
as yet recognized its admissibility as evidence. Consequently, the
idea of keeping the specimen secure even after the trial court
rejected the motion for DNA testing did not come up. Indeed,
neither Webb nor his co-accused brought up the matter of
preserving the specimen in the meantime.
Parenthetically, after the trial court denied Webb’s application for
DNA testing, he allowed the proceeding to move on when he had on
at least two occasions gone up to the Court of Appeals or the
Supreme Court to challenge alleged arbitrary actions taken against
him and the other accused. They raised the DNA issue before the
Court of Appeals but merely as an error committed by the trial court
in rendering its decision in the case. None of the accused filed a
motion with the appeals court to have the DNA test done pending
adjudication of their appeal.
So, the State cannot be deemed to be caught on reasonable notice
that it would be required to produce the semen specimen at some
future time.
Tama ang Supreme Court, in my observation, you cannot expect us
to preserve if at that time there was no still no statutory obligation
for us to preserve the samples. Tama ang giingon sa Supreme Court.
But you have to take note, that right now, the governing rule is
Section 12, which mandates the preservation of DNA Evidence in
criminal cases for not less than a period of time where a person is
under trial for a commission of an offense, or in case the accused is
serving sentence, or until such time as the accused has served his
sentence.
Now, let’s go back to the case itself. Humana ta sa DNA na issue.
What was alarming to me was what the Supreme Court said: “If it
was not his semen, he could not have raped Carmela. It is that
simple” which is far-different from the previous case.
Although in the Lejano case, mejo obiter ang dating niya. It’s not
case law. But you can always argue that the Supreme Court
sometime might change its tune.
Webb’s main defense was alibi. He was able to present very credible
evidence that he was at the US at the time of the incident.
What postulate you need to remember here: ALIBI IS AN
INHERENTLY WEAK DEFENSE. It is always discredited by
positive eye witness identification. So, if there is a clash between
The Supreme Court here, however, had the occasion to look back
the supposed positive identification by the witness Jessica Alfaro.
According to the Supreme Court, the positive identification, to be
acceptable, must meet at least two criteria:
First, the positive identification of the offender must come from a
credible witness. She is credible who can be trusted to tell the truth,
usually based on past experiences with her. Her word has, to one
who knows her, its weight in gold.
There were a lot of inconsistencies in the testimony of Alfaro during
trial. She tended to contradict herself. She had that habit of going to
the media, magpa interview to tell her side of the story. But the
stories conflict, inconsistent kaayo ingon niya.
Ingon niya wala nko nakita kay naa pa ko sa gawas. I did not see the
actual rape. But during trial, she said I was there. I witnessed
Hubert Webb mount Carmela and then raped her. Unsay toohan
nimo? Inconsistent man iya statements.
Second, the witness’ story of what she personally saw must be
believable, not inherently contrived. A witness who testifies about
something she never saw runs into inconsistencies and makes
bewildering claims.
1:40:01 – 1:49:02 (Alexander Abonado)
So inconsistent kaayo ang giingon niya. One time giingon niya na
wala nako nakita kay naa ra ko sa gawas. I did not see the actual
rape…but during trial she said, “I was there, I witnessed Hubert
mount Carmela and then raped her.” Unsa tuohan nimo nga
iconsistent man ang iyang statements?
Second, the witness’ story of what she personally witnessed/ saw
must be believable not inherently contrived. A witness who testifies
about something she never saw runs into inconsistencies and makes
bewildering claims.
One thing that the SC also said was the fact that Jessica Alfaro here
was actually an asset of the NBI. Then all of a sudden when the NBI
when the police no longer had any means, Jessica Alfaro just comes
forward and states that “I was actually there.”
How convenient that the supposed eye witness was somebody who
happened to be an asset of the NBI.
Murag convenient kaayo no? It so happened that she ran the same
crowd, and she also happens to be an NBI agent/asset.
So as we already discussed about Alfaro and her testimony fail to
make the above requirement (?). If the whole case of the
prosecution is about Alfaro’s testimony then the prosecution’s case
should fail.
So in the dispositive portion by the SC, the court reverses and sets
aside the decision of the lower court and acquits Webb, Lejano,
Gatchalian, Andres, etc. and further released from detention unless
they are confined for another lawful cause. That took a long long
time.
So what’s happened after that? Lauro Vizconde, filed a motion for
reconsideration of the Webb acquittal…but we all know that once
you are acquitted that cannot be reversed anymore. Otherwise there
is double jeopardy.
And he died after…suffering a series of heart attacks…he got his
wished to be buried next to spouse and children…he died without
obtaining any measure of justice. No peace of mind whatsoever after
the brutal slaying of his family. The rest of his life was spent seeking
justice. Justice that was overturned after 15 years of Hubert Webb
and his companions being in jail.
15 years…if it weren’t Webb and company…who did it? Wala na.
human na.
What happened to Hubert Webb, he was already 42 years old when
he was released, he ran for councilor of Paranaque last May 2016
elections. What happened? Vandolph won…
What about Jessica Alfaro? After the SC immortalized her lies,
calling her a liar in jurisprudence…she fled to Canada for no
apparent reason. In March 2011, the Webb family filed a criminal
case against her for false testimony. But you know the latin maxim
Paticur facinus in judicium fugium(?) – He who flees from
prosecution confesses his guilt.