Professional Documents
Culture Documents
effort, and at the same time guard against prejudice and arbitrariness.
Law of Evidence – Consists of those rules, statutory and judicial, which regulate the acceptance or rejection of
the information to a legal tribunal which will justify a conclusion or judgment upon the matter in issue before it.
It furnishes matter of fact:
1. It prescribes the manner of presenting evidence
2. It fixes the qualification and the privileges of witnesses and the mode of examining them
3. It determines which are logically and in their nature evidential, what classes of things shall not be
received
Evidence – anything that makes evident or clear to the mind, or such things collectively; any ground or reason for
knowledge or certitude in knowledge; proof whether from immediate knowledge or from thought, authority or
testimony; a fact or body of facts on which a proof, belief or judgment is based; that which shows or indicates.
In law, the matter to be proved is the contention of the litigant as to the issue, and it is most fundamental
rule that evidence offered must correspond with the allegations and be confined to the point in issue.
RULE 128
Component Elements:
1. Evidence as a means of ascertainment – Evidence may refer to the evidentiary fact or the mannerof
bringing this fact forward before the tribunal, or both.
Wigmore’s definition: any knowable fact or group of facts, not a legal or logical principle,
considered with a view to its being offered before a legal tribunal for the purpose of producing a
conviction, positive or negative, on the part of the tribunal, as to the truth of a proposition not of law or of
logic, on which the determination of the tribunal is to be asked.
2. Sanctioned by these rules – means allowed under these rules or not excluded by these rules.
3. In a judicial proceeding – contemplates a jural conflict.
4. The truth respecting a matter of fact – refers to an issue of fact and is both substantive and procedural.
The manner of proving these facts or acts is procedural and is governed by the rules on evidence.
Evidence Argumentation
The process of presentation or demonstration of The invocation by counsel of ordinary rules of logic
the jural relation between the parties can be and rhetoric in the combination of assumed facts.
accomplished only by the use of a number of facts,
the final logical result being the establishment of
the total fact.
Factum Probandum Factum Probans
Ultimate fact to be established , the Material evidencing the proposition. It is the
PROPOSITION of which evidence may be offered evidential fact or the fact by which factum
is given by the rules of substantive law and probandum is established.
pleadings
It becomes the fact in issue only if by substantive It signifies a relation between facts. The difference
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law, it will entitle a person to relief or from which would not be in the nature of the proof but in the
entitlement may reasonably inferred; otherwise it nature of facts required to be proved. The latter is
becomes immaterial. in reality civil or penal law, not evidence.
Evidence Proof
Means of proof Effect of evidence
Means tending to show guilt but all combined might Is the degree and quantity of evidence that
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or might not be deemed proof thereof produces conviction
Forms of Evidence
1. Testimonial evidence – evidence given in open court by witnesses who have knowledge of the facts
2. Documentary evidence – such as public records, private writings, business records, photographs, maps,
and the like
3. Object evidence – tangible objects or exhibits
4. Opinion testimony – recital of factual details by qualified experts in education, training or experience in
particular fields.
Individuals and party litigants cannot, by private contract, stipulate rules of evidence that shall be binding
on the courts. Parties to a contract may legally stipulate as to the effect of certain types of evidence on
the contractual rights of the parties, so long as their agreements do not infringe upon the jurisdiction of
the courts.
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.
Rules of admissibility are in general the same for the trial of civil and of criminal cases. Whether a matter
is true or false is the same in all cases. This general principle is the basic rule of admissibility of all
evidence.
The rules are applicable in proceedings like judicial, quasi-judicial, administrative and all other
proceedings.
All relevant evidence should be admitted if it is the sort of evidence on which responsible persons are
accustomed to rely in the conduct of serious affairs.
Quantum of evidence
1. Criminal cases – proof beyond reasonable doubt
2. Civil cases – preponderance of evidence
3. Administrative – substantial evidence
Proof beyond reasonable doubt - does not mean such degree of proof as excluding possibility of error and/or
producing absolute certainty.Moral certainty is only required or that degree of proof which produces conviction in
an unprejudiced mind.
Substantial evidence – amount of relevant evidence which a reasonable mind might accept as adequate to
justify a conclusion.
Requirements of Admissibility
1. Relevancy - It must be relevant to the issue. Evidence is relevant if it may establish directly or
indirectly the existence or non-existence of the facts in issue.
2. Competency – it is not excluded by the Rules on Evidence, the law and the constitution. Evidence is
competent if it is not excluded by any rule of law for the purpose for which it is offered.
Two axioms of admissibility by Wigmore
1. None but facts having rational probative value are admissible. It prescribes merely that whatever is
presented as evidence shall be presented on the hypothesis that it is calculated, according to the
prevailing standards of reasoning, to effect rational persuasion.
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2. All facts having rational probative value are admissible, unless some specific rule forbids. Everything
having a probative value is ipso facto entitled to be assumed to be admissible, and that therefore any rule
of policy which may be valid to exclude it is a superadded and abnormal rule.
Admissibility Weight
Evidence is admissible if it complies with the Or probative value is determined by the court
requirements of relevancy and competency
Admissibility Credibility
Evidence is admissible if it is relevant to the issue Depends on the evaluation given to the evidence
and is not excluded by the law or these rules. by the court in accordance with the guidelines
provided in Rule 133 of the Rules of Court and the
doctrines laid down by the Supreme Court.
Curative admissibility
Improper Evidence admitted on one side without objection, does not give the other side the right to
introduce in reply the same kind of evidence if objected to; however, when a plain and unfair prejudice
would otherwise inure to the opponent, the court may permit him to use a curative counter-evidence to
contradict the improper evidence presented.
Where improper evidence has been received against the objection of the opposing party, it is error for the
court to refuse to allow the latter to contradict it.
Some conclusions:
1. If the inadmissible evidence sought to be answered is irrelevant and not prejudiced-aroused the judge
should refuse to hear answering evidence. But if he does hear it, the party opening the door has no
standing to complain
2. If the evidence, though inadmissible, is relevant to the issues and hence presumably damaging to the
adversary’s case, or though irrelevant is prejudicearousing to a material degree, and if the adversary has
seasonably objected or moved to strike, then the adversary should be entitled to give answering evidence
as of right. He needs a fair opportunity to win his case at the trial by refuting the damaging evidence
3. If again the first inadmissible evidence is relevant, or though irrelevant is prejudice-arousing, but the
adversary has failed to object or to move to strike out where such an objection might avoided the harm,
then the allowance of answering evidence should rest in the judge’s discretion. He should weigh the
probable influence of the first evidence, the time and distraction incident to answering it, and the
possibility and effectiveness of an instruction to the jury to disregard it.
4. If the inadmissible evidence is so prejudice-arousing that an objection or motion to strike could not have
erased the harm, then it seems that the adversary should be entitled to answer it as a matter of right.
The Exclusionary Rule: a judicially created remedy which provides that evidence obtained in violation of
the defendant’s constitutional rights must be suppressed from the government’s case in chief.
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Scope of the Exclusionary Rule
The following are the rights protected by the rule:
1. Right against unreasonable search and seizure
2. Right to privacy and inviolability of communication
3. Rights of person under investigation for an offense
4. Right against self-incrimination
Fruit of the poisonous tree doctrine: posits that all evidence derived from an illegal search must be
suppressed, whether it was obtained directly through the illegal search itself, or indirectly using information
obtained in the illegal search.
Likewise known as the “but for” or taint doctrine which means that the evidence would not have come
to light but for the illegal action of the police. The test is whether or not the evidence could not have
been obtained but for the illegal action of the police.
Once the primary source (the tree) is shown to have been unlawfully obtained, any secondary or
derivative evidence (the fruit) derived from it is also inadmissible. The rule is based on the principle
that evidence illegally obtained by the State should not be used to gain other evidence because the
original illegally obtained evidence taints all evidence subsequently obtained.
Relevancy – is the initial and true test of admissibility. The trial court will admit only evidence that bears such a
sufficient relationship to the matters in dispute that it may be deemed relevant.
Sole test of relevancy: is whether or not the factual information tendered for communication to the fact finder
would be helpful in the determination of the factual matter that is in dispute between the parties.
The test of relevancy is logical connection where the question is whether evidence is admissible to show
a collateral fact or where proferred evidence is relevant to the collateral issue. Evidence is admissible to
show a collateral fact that tends to prove or disprove a matter of fact which has been made an issue in
the case.
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case are in issue is to be determined mainly by the pleading, the applicable principles of substantive law,
and by pre-trial orders, if any.
2. Probative value/probativeness – tendency of evidence to establish the proposition that it is offered to
prove. Probativeness is a matter of common sense, logic and experience.
Relevant evidence is evidence that in some degree advances the inquiry. It is material and probative. As
such it is admissible, at least prima facie. But this relevance does not ensure admissibility.
Degree of Probativeness required: Evidence need not be absolutely determinative of the fact which it is
directed. It need not be conclusive.
Insufficient probativeness: Although evidence need not be very probative to be relevant, it must be sufficiently
probative so that time spent on the matter would not be wasted.
Effect of finding of probativeness: A determination of probativeness, then is the legal conclusion that there
exists a sufficient relationship between the evidence offered and the fact sought to be proved, such that
reasonable persons might be helped in inferring one from the other.
Relevancy is the initial and true test of admissibility, and in the absence of some applicable exclusionary
rule, legalistic defects which would bar the evidence for some other purpose which are inapplicable to the
pupose for which it is offered, do not render it generally inadmissible.
Basic Rule: Evidence even though relevant, should be excluded if its probative value is substantially outweighed
by the risk that its admission will cause (1) undue or unfair prejudice, (2) confusion of the issues, (3) misleading of
the jury, (4) undue delay or waste of time, or (5) needless presentation of cumulative evidence.
Collateral Matters – are matters other than the facts in issue and which are offered as a basis for inference as to
the existence or non-existence of the facts in issue.
When a person’s conduct is in issue the fact that the person engaged in conduct of same sort on a
different occasion may be shown as tending to shed light on some quality of the conduct in question, such
intent, knowledge, good or bad faith, malice or other state of mind or bodily feeling.
There must be motive but if there is no proof thereof, this does not preclude conviction if there is sufficient
proof of guilt. While motive is generally of great importance, it is not absolutely indispensable. While it is a
recognized rule of human conduct that crime is the response of the evil mind to some temptation, and that
men of sound mind are rarely prompted to commit it without some impelling motive, it does not follow, and
it is not the law, that the prosecution, to justify a conviction in a given case.
2. Concomitant Circumstances
a. Opportunity – if the accused was the only one who had the opportunity to do the act charged,
such circumstance maybe taken against him. Exclusive opportunity is not essential. It is enough
that the person charged had an opportunity to do the act added to the chain of other
circumstances, leads to the inference that he is really the author of such act.
b. Incompatibility – when concomitant circumstances are incompatible with the doing of an act by
a person, they may be proved to show that such person is not the author of the act. When it is
impossible for a man to commit the crime charged, because at the time of its commission, he was
at a place far from that of the crime, the accused should be discharged.
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c. Alibi – one of the weakest defenses of the accused. A defendant must not only show that he was
present at some other place about the time of the alleged crime, but also that he was at such
other place for so long a time that it was impossible for him to have been at the place where the
crime was committed, either before or after the time he was at such other place.
RULE 129
The presumption prevails that when a cause is presented at the bar for trial, the Court is uninformed
concerning the facts involved, and it is incumbent upon the litigants to the action to establish by evidence
the facts upon which they rely. Judicial truth is different from actual moral truth.
Judicial Notice – cognizance of certain facts which judges may properly take and act on without proof because
they are already known to him. It is based upon convenience and expediency.
Object of the rule: to save time, labor and expense in securing and introducing evidence on matters which are
not ordinarily capable of dispute and are not bona fide disputed, and the tenor of which can safely be assumed
from the tribunal’s general knowledge or from a slight search on its past.
In order for a court to take judicial notice of facts commonly known, it is not necessary that a request be
made for it even where the taking of notice is permissive rather than compulsory.
Unless the taking of notice is required by statue or rule of law the court has some discretion whether to
take judicial notice or not.
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judicial notice deal
Section 2. Judicial Notice, when discretionary. – A court may take judicial notice of matters which are of
public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges
because of their judicial functions.
TEST OF NOTORIETY: Whether the fact involved is so notoriously known as to make it proper to assume its
existence without proof.
The fact that a belief is not universal, however, is not controlling for it is very seldom that any belief is
accepted by everyone. It is enough that the matters are familiarly known to the majority of mankind or
those persons familiar with the particular matter in question.
RANGE OF APPLICATION: Laws of the land and foreign laws. The latter must be alleged and proved, except
foreign statute accepted by the government is subject to judicial notice; common law.
Administrative regulations are as a general rule judicially noticed because although they are not
actually notorious, yet they would be capable of unquestionable demonstration, if desired, that no party
would think of imposing a falsity on the tribunal in the face of an intelligent adversary.
Official acts, proclamations, regulations, and reports may be judicially noticed.
Courts will take judicial notice of its own records of case pending before it.
The court is not authorized to take judicial knowledge of the contents of the record of other cases in the
adjudication of cases pending before them or even when said other cases have been heard or are
pending in the same court notwithstanding the fact that both cases may have been heard or are really
pending before the same judge.
Exceptions:
- Without objection or by agreement of the parties, it may be read into records or admitted as part of
the record of the case then pending.
- The other proceedings or causes are so closely interwoven or interdependent.
- Where the interests of the public are in ascertaining the truth are of paramount importance.
- In cases seeking to determine what is reasonable exercise of discretion or whether or not a previous
ruling applicable in a case under consideration.
- Finality of the judgment in another case that was previously pending determination, and therefore, res
judicata.
- Decisions of the CA which affect the case then pending.
The exceptions are applicable only when, in the absence of objection, with the knowledge of the
opposing party, or at the request or with the consent of the parties, the case is clearly referred to or
the original part of the records of the case are actually withdrawn from the archives and admitted as
part of the record of the case then pending.à
An appellate court is without authority to take notice or take into consideration, the judicial records of
a case previously decide by the trial court upon which said court did not have opportunity to pass.
An appellate court cannot consult the records in another case to ascertain a fact not shown by the
records of the case before it, but could go to its other decisions for the law that is determinative of or
applicable to the case under review.
Courts will take judicial notice of notorious historical happenings, geographical facts, laws and
phenomenon of nature, and arts and sciences.
To take judicial notice of a custom it must be generally known and established and uniformity acted
upon so as to raise a fair inference that it was known to both contracting parties and that they acted
upon it. A custom must be proved as a fact according to the rules of evidence.
Courts may take judicial notice of religious matters, certain commercial or trade practices, habits,
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traits and diseases of men, and diseases and frailties.
Judicial notice of entries in police report was allowed.
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.
DISTINCTION BETWEEN JUDICIAL NOTICE OF SOURCES AND JUDICIAL NOTICE OF FACTS: The court
may find that while the source is genuine, the fact recited therein is not clearly indisputable and should, therefore,
be subject to proof.
If evidence is not necessary to establish a fact that is beyond dispute, evidence is not admissible to
contradict the fact of which the court takes notice.
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.
GENERAL RULE: The allegations, statements, or admissions contained in a pleading are conclusive as against
the pleader.
The instrument need not be presented formally in evidence for it may be considered as an admitted fact.
An extrajudicial admission is not conclusive but disputable and must be formally offered in evidence
before the court may consider the admission as evidence.
Judicial admissions under this rule applies only to a pending case and may be made in pleadings either
expressly or impliedly.
The following are NOT deemed admitted: immaterial allegations, incorrect conclusions of facts drawn
from facts set out in the complaint, conclusions of law, general averments contradicted by specific
averments, unliquidated damages.
No admissions may be made in: annulment of marriage and legal separation. à
An admission in a pleading in one action may be received in evidence against the pleader or his
successor in interest on the trial of another action to which he is a party and material to the issues
involved in such action.
Allegations in an answer are not necessarily judicial admissions.
There can be no admission as to jurisdiction.
A party is bound by the admission contained on a pleading prepared by his attorney, although he did not
swear to or know of the statements therein and even though he had no actual knowledge of the existence
of the pleading.
However, when a lawyer acts beyond his authority, all he does is null and void although it may be
beneficial to the client.
A stipulation of facts is a judicial admission of all the facts stated therein.
An amended pleading supersedes the original pleading which disappears from the records. So that
defenses in the original pleading not reproduced in the amended pleadings are deemed waived and
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cease to be judicial admissions.
The parties to any action may agree, in writing upon the facts involved in the litigation and require the
judgment of the court upon the facts agreed upon, without the introduction of evidence.
A judicial admission in an affidavit used in the case when relevant, is competent evidence, even if merely
adopted and not made by the party against whom it is used. It may be competent evidence for the
adverse party on the trial of another issue different from that on which it was offered. The affidavit must,
however, be formally offered in evidence in order to render it available.
One who prays for judgment on the pleadings without offering proof as to the truth of his own allegation
and without giving the opposing party an opportunity to introduce evidence must be understood to admit
the truth of all the material and relevant allegations of the opposing party, and to rest his motion for
judgment on those allegations taken together with such of his own as are admitted in the pleadings.
RULE 130
Section 1: Object as evidence. – Object 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.
Sources of Evidence
1. Testimonial Evidence – there is an inference from the human assertion to the fact asserted; testimony of
man which may be oral or written.
2. Circumstantial evidence – inference from the circumstance to the thing producing it; that of any
circumstance not a human assertion nor an autoptic preference from which an inference may be taken as
to the existence or non-existence of a fact in dispute
3. Real Evidence or autoptic preference – omission of any step of conscious inference or reasoning and in
proceeding by direct self-perception or autopsy; that which is addressed to the senses of the court as
where the objects are exhibited for the personal observation of the judge (evidence of one’s own senses)
REAL EVIDENCE
Physical or tangible evidence presented to the trier of fact for inspection as relevant to an issue in the
case
Physical evidence is evidence to the highest order. It prevails over testimonial evidence.
Requirement of Authentication
The real evidence is what it purports to be or more precisely, that it is what its proponent say it is
Authentic – what it is claimed to be even though it consists of false information (falsified books kept by the
defendant is authentic if it is introduced by the prosecution for the purpose of showing its falsity)
Relevance
Even if a thing is authentic does not mean that it is relevant
Authentication is necessary:
1. To prevent the introduction of an object different from the one testified about
2. To insure that there have been no significant changes in the object’s condition
Types of Authentication
a. By testimony
b. Chain of custody – if the real evidence is of a type which cannot easily be recognized or can readily be
confused or tampered with
HOW? Establish a chain of custody: white powder seized from defendant and prosecution wishes
to testify that it is found by the chemist to be heroin. Seizing officer sealed it in an envelope and signed it,
placed it in a safe box which only he knows the combination, later took it out and delivered it to the
chemist. Chemist testify that he received said envelope from the police officer
Motion Pictures
Admissible under the same principle governing still pictures and photograph records
A movie tone duly authenticated as an accurate portrayal of the words and actions of a person is
admissible is relevant
Paternity Cases
A comparison of the physical characteristics of the baby and alleged father constitutes real evidence
Note: most courts will permit the exhibition under certain conditions (where child is sufficiently old to
possess settled features)
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Age of Person
If age of a person is in issue, the fact of age should be proved by sworn testimony; but where relative age
is to be determined the court may take into consideration the appearance of the person as the latter is
seen in court.
Demonstration
The court in its discretion may permit experiments or demonstrations to be performed in the courtroom
Requisites:
1. Relevancy
2. The present condition of the object must be the same at the time is issue
DEMONSTRATIVE EVIDENCE
Distinguished to Real Evidence: is not the real thing, instead, it has tangible or exemplifying purposes. It
is visual aid.
Distinction not always clear, depends on the use to be made of it
Our rule does not make such distinction: When an object is relevant to the fact in issue, it may be
exhibited to, examined or viewed by the court
Types:
a. Selected demonstrative evidence: e.g. existing, genuine handwriting specimens used as
standards of comparison by a handwriting expert
b. Prepared or reproduced demonstrative evidence: made specifically for trial
Testimonial Foundation Required
SCIENTIFIC EVIDENCE
Requirements for admissibility
1. Must be shown that the experiment was conducted under conditions substantially similar to those
existing at the time of the actual event being litigated
2. Expert Testimony
▪ Court may take judicial notice of the reliability of certain scientific tests
Types:
1. Psychiatry and Psychology
2. Toxicology: blood tests, breathalyzer (analyze sample of breath to determine alcoholic content),
nalline test for narcotics use
3. Forensic pathology
4. Photography, motion pictures and videotape
5. Microanalysis
6. Neutron Activation analysis
7. Fingerprinting
8. Firearms identification
9. Question document evidence
10. Polygraph testing
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▪ Parties must all sign a written stipulation agreeing to admission of results
▪ Admissibility still subject to judicial discretion
▪ Right to cross examination
11. Vehicular speed detection
12. Spectographic voice identification
Section 2: Documentary Evidence. – Documentary Evidence consist of writings or any material
containing letters, words, numbers, figures, symbols or other modes of written expressions offered as
proof of their contents.
Writing – handwriting, typewriting, printing, photostating, photographing and every other means of recording upon
any tangible thing any form of communication or representation, including letters, words, pictures, sounds or
symbols or any combination thereof,
General Rule : the exclusion of secondary evidence of the contents of a written instrument; original document
itself must be presented
Exception: some legal excuse can be shown for failure to produce the original writing.LCNP)
(
1. Original has been lost or destroyed or cannot be produced in court- without bad faith on the part
of the offeror;
2. Original is in the custody or under the control of the party against whom the evidence is offered
and the latter fails to produce it after reasonable notice;
3. Original consists of numerous accounts or other documents which cannot be examined in court
without great loss of time and the fact sought to be established for them is only the general result
of the whole;
4. Original is a public record in the custody of a public officer or is recorded in a public office.
Best evidence rule- misleading name; better referred to as the ORIGINAL WRITITNG RULE.
The duty to produce the original arises only when thesubject of the inquiry is the contents of the writing
Section 4. Original of document. –
(a) The original of a document is one the contents of which are the subject of inquiry.
(b) When a document is in two or more copies executed at or about the same time, with identical
contents, all such copies are equally regarded as originals.
(c) When an entry is repeated in the regular course of business, one being copied from another at
or near the time of the transaction, all the entries are likewise equally regarded as originals.
SECONDARY EVIDENCE
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Section 5. When original document is unavailable. – When the original document has been lost or
destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the
cause of its unavailability without bad faith on his part, may prove its contents by a copy or by a recital of
its contents in some authentic document, or by the testimony of witnesses in the order stated.
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Degrees of Secondary Evidence
a. American Rule: the secondary evidence which is admissible is the best secondary evidence
obtainable.
➢ If it appears that there is in existence secondary evidence of a more satisfactory kind
than the secondary evidence which a party offers, he will be required to produce the
better evidence if he can do so ; he will not be permitted to introduce the inferior
secondary evidence offered unless he can show that the better secondary evidence and
the original primary evidence are unavailable.
➢ Ex: copy of lost writing better than oral evidence in relation thereto
b. English Rule: Where the original of a writing has been lost, the copy and oral testimonies
relating to such writing are both secondary evidence, and both are competent evidence in
establishing the contents of the lost writing.
*We have adopted the AMERICAN RULE.
(EXCEPTION 2)
Section 6 WHEN ORIGINAL DOCUMENT IS IN ADVERSE PARTY’S CUSTODY OR CONTROL
Requisites: (PRSF)
1. Opponent’s possession or control of the original;
➢ Not necessary to show that the original is in the actual possession of the adversary;
➢ It is sufficient that the circumstances are such as to indicate that the writing is in his
possession or control.
2. Reasonable notice to the opponent to produce the original;
➢ The giving of notice at the trial satisfies the requirement.
➢ The notice must be so framed that there can be no reasonable doubt as to what papers are
meant. It is sufficient if the adverse party may reasonable understand that a certain document
is required.
3. Satisfactory proof of its existence;
4. Failure or refusal of the opponent to produce the original in court.
Original is a Public Record in the Custody of a Public Officer or Recorded in a Public Office (EXCEPTION
4)
- Exception to Exception: Upon order of court and where the inspection is shown to be essential to
the just determination of the case or action or proceeding pending.
➢ Meaning that the court will order the production of the original document in the custody of
the public officer.
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Kinds of Secondary Evidence:
- Under Exceptions 1 and 2:
1. By a copy thereof;
2. By a recital of its contents in an authentic document;
3. By recollection of witness.
- Under Exception 3: Summary of the voluminous documents or records.
- Under Exception 4:
1. Certified true copy;
2. Official Publication.
Section 8. Party who calls for document not bound to offer it. – A party who calls for the production of a
document and inspects the same is not obliged to offer it as evidence.
The mere production of documents upon the trial, pursuant to notice duly served, does not make such
documents evidence; it is not until the party who demanded their production examines them and
OFFERS THEM IN EVIDENCE that they assume the status of evidentiary matter.
Sec. 9 Evidence of written agreements: When the terms of an agreement have been reduced to writing, it is
considered as containing all the terms agreed upon and there can be, between the parties and their successors in
interest, no evidence of such terms other than the contents of the written agreement .
However, a party may present evidence to modify, explain or add to the terms of the written agreement if
he PUTS IN ISSUE IN HIS PLEADING: [ FIVE ]
1. The Failure of the written agreement to express the true intent of the parties thereto;
2. An Intrinsic ambiguity, mistake or imperfection in the written agreement;
3. The Validity of the written agreement;
4. The Existence of other terms agreed to by the parties or their successors in interest after the execution of
the written agreement.
The term “agreement” includes wills.
NOTE: Exceptions must be alleged in the pleadings and if not alleged parol evidence is inadmissible to prove the
true agreement.
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1. To give stability to a written agreement;
2. To remove the temptation and possibility of perjury;
3. To prevent possible fraud.
REQUISITES:
When no timely objection or protest is made to the admission of parol evidence, and when the motion to
strike out said evidence came too late and if the other party against whom such evidence was presented
cross-examined the witness who testified in respect to the contract, said party will be understood to have
waived the benefits of the law. Parol evidence under those facts is competent and admissible. (Abrenica
vs. Gonda, No.10100, August 15, 1916)
Parol Evidence – Any evidence aliunde which is intended or tends to vary or contradict a complete and
enforceable agreement embodied in a document.
NOTE: No express trust concerning an immovable or any interest therein may be proved by parol evidence (Art.
1443, Civil Code).
GENERAL RULE: Parol Evidence Rule applies only to INTEGRATED (finalized) AGREEMENTS (intended by
both parties as the final and exclusive written memorial of their dealings).
When the parties have reduced their agreement to writing, it is presumed that they have made the writing the
ONLY REPOSITORY and MEMORIAL OF THE TRUTH, and whatever is not found in the writing must be
understood to have been waived and abandoned.
EXCEPTION:
Collateral Oral Agreements
- A contract made prior to or contemporaneous with another agreement and IF ORAL and NOT
INCONSISTENT with written contract IS ADMISSIBLE within the exception to parol evidence rule.
RATIO: The parties to a contract cannot be presumed to have embodied in a single writing all the agreements
which they had on different subjects.
Parol evidence on a collateral agreement to reconvey is allowed where it appears that consideration
indeed was not the only consideration agreed upon by the parties, and that the purchaser succeeded in obtaining
from the vendor a deed of absolute sale under a false promise that he would later execute a deed authorizing the
vendor to repurchase the property within a period of time. Parol evidence is admissible because it tends to prove
fraud and the true considerations of contracts.
PAROL EVIDENCE RULE APPLICABLE TO “WILLS”
The general rule is that no evidence on the terms of the will and its attestation clause is admissible other
than the contents of the will. However, under Art. 789 of the New Civil Code, when there is an imperfect
description in the will, or when no person or property exactly answers the description, mistakes and omissions
must be corrected if the error appears from the contexts of the will or from extrinsic evidence, excluding the oral
declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the
application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking
into consideration the circumstances under which it was made, excluding such oral declaration.
A Xerox copy of a lost or destroyed will is admissible because comparison can be made with the standard
writing of the testator (Bonilla vs. Aranza).
“An erroneous description does not spoil the act.”
✷ False description does not injure or vitiate a document, provided that the thing or person intended has
once been sufficiently described.
✷ Where there are two descriptions in a deed, the one having been superadded to the other, and one
description being complete and sufficient of itself while the other which is subordinate and superadded is
incorrect, the incorrect description or feature of circumstance of the description is rejected as surplusage,
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and the complete and correct description is allowed to stand alone.
RULE ON MISTAKE
RATIO: It would be unjust and inequitable to allow the enforcement of a written instrument which does not reflect
or disclose the real meeting of the minds of the parties.
Elements of Mistake:
NOTE: The ground that the written agreement fails to express the true intent of the parties can only be invoked
when the contract is literally ambiguous or obscure in its terms and that the contractual intention of the parties
cannot be understood from the mere reading of the instrument.
RULE ON IMPERFECTION
Where a writing, although embodying an agreement is manifestly incomplete, and is not intended by the
parties to exhibit the whole agreement, but only to define some of its terms, the writing is conclusive as far as it
goes. But such parts of the actual contract as are not embraced within its scope may be established by parol.
Imperfection includes an inaccurate statement in the agreement, or incompleteness in the writing, or the
presence of inconsistent provisions therein.
Conditions qualifying the operation of a clear and complete written agreement are not allowed, for they
would tend to vary, alter or contradict terms of written agreement.
2. Conditions Subsequent— may not be established by parol evidence.
Parol evidence is admissible to prove fraud and the true consideration of the contract. Parol evidence may be
admitted to prove:
That no consideration was paid or received;
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That the consideration was greater or less than that which is expressed in the writing;
That the consideration has failed;
That a new consideration is agreed upon to take the place of a previous one which failed;
PROVIDED, it does not tend to change the terms of the contract as well as the recital of consideration.
➔ The judicial tendency is toward holding that the recital of consideration or the acknowledgment of
payment in a deed is open to almost unlimited explanation. However, it has been held that where the
consideration stated in the deed is not pecuniary and is SPECIFICALLY CONTRACTUAL in nature, a
different or additional consideration cannot be shown by parol.
Parol Evidence is ADMISSIBLE to show that an absolute sale or apacto de retro is an equitable mortgage
in any of the following cases:
1) The price of the sale is unusually inadequate;
2) The vendor remained in possession as lessee or otherwise;
3) Upon the expiration of the right to repurchase, another instrument extending or granting a new period is
executed;
4) The purchaser retains for himself a part of the purchase price;
5) The vendor binds himself to pay the taxes on the thing sold;
6) In any other case where it may be fairly inferred that the real intention of the parties is that the transaction
shall secure the payment of a debt or the performance of any other obligation.
Statute of Frauds
The term statute of frauds is descriptive of statutes which require certain classes of contracts to be in writing; its
purpose is to prevent fraud and perjury in the enforcement of obligations depending for their evidence upon the
unassisted memory of witnesses by requiring certain enumerated contracts and transactions to be evidenced by a
writing signed by the party to be charged.
➔ Its application is limited. It makes only ineffective actions for SPECIFIC PERFORMANCE of the contracts
covered by it.
➔ It does not apply to contracts which are either totally or partially executed BECAUSE the intention of the
parties becomes apparent by their execution, and execution concludes, in most cases, the rights of
parties.
N.B. The statute of frauds simply provides for the manner in which contracts under it shall be proved; the contract
exists and is valid.
Comparison of the Best Evidence Rule, Parol Evidence Rule and the Statute of Frauds
Parol evidence rule forbids varying of contracts. The best evidence rule forbids receiving evidence of the contents
other than the original document (even if it does not vary the document). The Statue of Frauds forbids parol
evidence to prove certain contracts to prevent enforceability.
Generally, rules on interpretation provided by the New Civil Code are followed.
Contracts should be so construed as to harmonize and give effect to the different provisions thereof.
Section 12. Interpretation according to intention; general and particular provisions. - In the construction
of an instrument, the instrument, the intention of the parties is to be pursued; and when a general and a
particular provision are inconsistent, the latter is paramount to the former. So a particular intent will
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control a general one that is inconsistent with it.
So a particular intent will control a general one that is inconsistent with it.
If the terms of the contract are clear and leave no doubt upon the intention of the contracting parties, the
literal meaning of its stipulations shall control. When the words appear contrary to the evident intention of
the parties, the latter shall prevail over the former. In order to judge the intention of the parties, their
contemporaneous and subsequent acts shall be principally considered.
To determine the nature of a contract, courts are not bound to rely upon the name or title given to it by the
contracting parties. Should the performance conflict with the name or title given the contract by the
parties, the former must prevail over the latter.
Section 13. Interpretation according to circumstances.- For the proper construction of an instrument, the
circumstances under which it was made, including the situation of the subject thereof and of the parties
to it, may be shown, so that the judge may be placed in the position of those whose language he is to
interpret.
Section 14. Peculiar signification of terms. - the terms of a writing are presumed to have been issued in
their primary and general acceptation, but evidence is admissible to show that they have a local,
technical, or otherwise peculiar signification, and were so used and understood in the particular instance,
in which case, the agreement must be construed accordingly.
Section 15. Written words control printed. - W hen an instrument consists partly of written words and
partly of a printed form, and the two are inconsistent, the former controls the latter.
Section 16. Experts and interpreters to be used in explaining certain writings. - W hen the characters in
which an instrument is written are difficult to be deciphered, or the language is not understood by the
court, the evidence of persons skilled in deciphering the characters, or whom understand the language, is
admissible to declare the characters or the meaning of the language.
Section 17. Of two constructions, which preferred.- When the terms of an agreement have been intended
in a different sense by the different parties to it, that sense is to prevail against either party in which he
supposed the other understood it, and when different constructions of a provision are otherwise equally
proper, that is to be taken which is the most favorable to the party in whose favor the provision was
made.
Contracts of Adhesion
One in which one of the parties imposes a ready-made form of contract which the other party may accept
or reject, but which the latter cannot modify.
When one of the parties merely takes it or leaves it, it is difficult to say that there is a common intention.
Section 18. Construction in favor of natural right. - W hen an instrument is equally susceptible of two
interpretations, one in favor of natural right and the other against it, the former is to be adopted.
Section 19. Interpretation according to usage. - A n instrument may be construed according to usage, in
order to determine its true character.
The usage or custom of the place shall be borne in mind in the interpretation of the ambiguities of a
contract, and shall fill the omission of stipulations which are ordinarily established.
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TESTIMONIAL EVIDENCE
QUALIFICATION OF WITNESSES
Section 20. Witnesses; their qualifications – Except as provided in the next succeeding section, all
persons who can perceive, and perceiving, can make known their perception to others, may be
witnesses.
Religious or political belief, interest in the outcome of the case, or conviction of a crime unless
otherwise provided by law, shall not be a ground for disqualification
Witness – is one who, being present, personally sees or perceives a thing, a beholder, spectator or eyewitness.
One who testifies to what he has seen or heard, or otherwise observed.
The performance of the citizen`s testimonial duty can only be invoked by the State after adequate notice
is given. The process used for this purpose is known as subpoena. It is issued only in connection with a
pending action or proceedings.
General Rule: Witnesses subpoenaed by the court are duty bound to appear and testify:
Exceptions:
1. Chief executive
2. Judges of superior courts
3. Members of Congress during sessions
4. Ambassadors
5. Consuls and other diplomatic officials when there is a treaty holding them exempt.
Qualifications of Witnesses
A prospective witness must show that he has the abilities
1. To observe, the testimonial quality of perception;
2. To remember, the testimonial quality of memory;
3. To relate, the testimonial quality of narration; and
4. To recognize a duty to tell the truth, the testimonial quality of sincerity
In the administration of justice, testimony should be given only after the witness has taken an oath or
made an affirmation that he will tell the truth. A party cannot be affected either in his person or his
property by the declaration of a witness made WITHOUT oath.If a party FAILS to object to the taking
of the testimony of a witness without the administration of an oath, he is deemed to have waived if the
party fails to inquire whether the witness has been sworn.
Test of Competency: Whether the individual has sufficient understanding to appreciate the nature and obligation
of an oath and sufficient capacity to observe and describe correctly the facts in regard to which he is called to
testify.
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General rule: A person who takes the witness stand is presumed to posses the qualifications of a witness.
This presumption may be questioned by an objection raised any time during the examination or cross-
examination but it should be made as soon as the facts tending to show incompetency are discovered.
A person is competent to be a witness if: (a) he is capable of perceiving at the time of the occurrence of the fact
and (b) he can make his perception known.
General Rule: Persons who are tendered as witnesses are presumed to be sane and competent to testify until
the contrary is shown; and the burden rests on the person asserting the contrary to shown that the mental
weakness of the witness is of such a nature and extent as to render him incompetent to relate the facts of the
case or to comprehend the nature and obligations of an oath.
N.B:
▪ Mental defectives may be witnesses if they appear to the court to have sufficient understanding or
comprehend the nature and obligation of an oath and to observe and to remember correctly, and
to be capable of giving a correct account of the matter what they have seen or heard.
▪ An insane may also testify if his testimony is offered during a lucid interval.
Admissibility of the Testimony of a Deaf-Mute:A deaf-mute if of sufficient mental capacity and able to
communicate his ideas by signs or writing, is a competent witness.
Such witness must have a system of communication.
Making Known DeafMute’s Perception to Others may be made through the interpreter (People v. Hayag)
▪ The method to be employed in eliciting the testimony of a deaf-mute should be that which is best suited to
attain the desired end, the particular method of examination resting largely in the discretion of the court.
▪ In the absence of showing as to what constituted the best method of taking a deafmute’s testimony, it will
be presumed to appeal that the trial court adopted the best method.
▪ In the conducting of the examination of a deaf-mute, it has been held that leading questions are allowed
in the discretion of the court.
▪ People v. De Leon: The accused was convicted of rape on the basis of the testimony of the deaf-mute
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victim interpreted by a teacher in the school for deaf-mutes.
▪ People v. Sasota: The accused was convicted of rape on the basis of the testimony of the deaf-mute
victim with the assistance of an instructor in the school for deaf-mutes, corroborated by her 7-year old
sister who was present when the crime was committed.
▪ People v. Bustos: The testimony of a deaf-mute, an alleged eyewitness, as interpreted by a teacher from
the school for deaf-mute , who did not teach the witness was not given credence.
Testimony of a Child of Tender Years : The testimony of a minor or minors of tender age will suffice to convict a
person accused of a crime so long as it is otherwise credible.
Requirements of a Child’s Competency: Determination Left to Court’s Discretion:
(a) Capacity of observation;
(b) Capacity of recollection; and
(c) Capacity of communication.
▪ It is not the age but the degree of intelligence of a child which determines the question of a child’s
competency as a witness. If the witness is sufficiently mature to receive correct impressions by
his senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth,
he is competent.
Other elements:
(a) A sense of obligation to speak the truth (understanding of the nature and value of an oath);
(b) Memory sufficient to retain an independent recollection of the observation made.
▪ People v. Sabater: The fact that the child was only 7 years old when he witnessed the killing of
his father is no ground for not giving credence to his testimony made years later.
▪ Unless a child’s testimony is punctured with serious inconsistencies as to lead one to believe that
he was coerced, if he can perceive and make known his perception, he is considered as a
competent witness
Tests for Ascertaining Competency of Child : age, intelligence or lack of intelligence and sense of moral and legal
responsibility, the capacity to observe events, to recollect and communicate them, has the ability to understand
questions and to make intelligent answers with an understanding of the duty to speak the truth.
Jones: The natural language of a child is that of innocence and truth, and its testimony is apt to be free
from the prejudice or sinister motives which too often affect the testimony of adults, yet the child’s
testimony has been said to be open to serious objections
Stephen: A child will have been taught to say that, if it tell s lie, it will go to the bad place when it dies,
long before it has any real notion of the practical importance of its evidence in a temporal point of view;
and also long before it has learned to distinguish between its memory and its imagination, or to
understand, in the least degree, what is meant by accuracy of expression.
Salonga: The ordinary child is a great weaver of romances. His imagination may induce him to relate
something he has heard or read in a story as a personal experience. His story should be searched for its
truth before he is called to the stand.
Other Reason:
1. Identity of interests. The spouses are two souls in one flesh;
2. The consequent danger of perjury;
3. The policy of the law deems it necessary to guard the security and confidence of private life even at the
risk of occasional failure of justice, and which rejects such evidence because its admission would lead to
domestic disunion and unhappiness;
4. There is danger of punishing one spouse through the hostile testimony of the other;
5. Preservation of marriage relation to domestic peace.
Exception: The disqualification does not apply in a civil case by one against the other, or in a criminal case for a
crime committed by one against the other or the latter’s direct descendants or ascendants
Reasons for the Exception:The identity of interests disappears and the consequent danger of perjury based on
that identity is non-existent. In such a situation the security and confidence of private life which the law aims at
protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home. (
People v. Francisco)
First Requisite: That the spouse for or against whom the testimony is offered is a party to the case
i. No one is said to be examined for or against one not a party to the action or proceeding in which such
witness is called to testify. And the testimony of a witness is not evidence for or against any one not a
party to the action or proceedings in which such testimony is tgiven.
ii. The testimony of a defendant charged with illegal possession of opium that the opium belonged to her
husband should not be excluded.
iii. Where the grounds of defense are several and distinct, and in no manner dependent on each other,
the wife of one defendant may be admitted as witness for another.
iv. Where there is a charge of fraudulent conspiracy- the co-defendant wife cannot be called as adverse
party witness, except their interests are separate or separable.
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Third Requisite: The marriage must exist at the time of giving testimony
▪ After the death or divorce of the spouses, the privilege ceases, for the reason ceases.
Fourth Requisite: That the case is not of one against the other.
▪ The disqualification does not apply in a civil case by one against the other, or in a criminal case
for a crime committed by one against the other or the latter’s direct descendants or ascendants.
▪ Ordona v. Daguigan: In a case of rape by the father against his daughter, the wife (also the
mother) may testify.
Where marital and domestic relations are so strained that there is no more harmony to be preserved nor
peace and tranquility which may be disturbed, by reason based upon such harmony and tranquility fails. In
such a case, identity of interests disappear and the consequent danger of perjury based on their identity is
non-existent.
▪ People v. Castaneda: The wife was permitted to testify in a falsification case against her husband
who made it appear in a deed of sale of conjugal property that his wife had given her consent
thereto.
▪ People v. Francisco: where the husband accused of killing his son imputed the crime to his wife,
the latter may testify against the husband in rebuttal.
▪ The rule of exclusion applies irrespective of the kind of testimony given by a witness. Even the
declaration of the accused’s spouse to a third person with reference to the accused’s guilt should
not be received against the accused where it was not made in his or her presence or by his or her
authority, although the rule is different if the declaration was made in his or her presence.
▪ Res gestae declarations of husband and wife are admissible for or against each other, even
though each is incompetent to testify.
▪ An accused can effectively seal the lips of a witness by marrying the witness.
Who may Object?: The privilege to object may be claimed only by the spouse-party and not the other spouse
who is offered as a witness.
Duration of Privilege: The privilege lasts only during the marriage. It terminates upon divorce or annulment or
death, in which event, the surviving spouse may testify on any matter not learned in confidence.
This is otherwise known as the dead man’s statute
▪ The incomptency to testify applies whether the deceased died before or after the commencement
of the action against him, if at the time the testimony was given he was already dead and cannot
disprove it, since the reason for the prohibition, which is to discourage perjury exists in both
instances.
Purpose of Rule: To guard against the temptation to give false testimony on the part of the surviving party, and
to put the parties to the suit upon the terms of equality in regard to opportunity to produce evidence.
Requisites:
(a) The witness is a party or assignor of a party to a case or persons in whose behalf a case is prosecuted;
(b) That the action is against an executor or administrator or other representative of a deceased person or a
person of unsound mind;
(c) That the subject-matter of the action is a claim or demand against the estate of such deceased person or
against person of unsound mind;
(d) That his testimony refers to any matter of fact which occurred before the death of such deceased person
or before such person became unsound mind.
▪ A party plaintiff may testify on the fraudulent transaction of deceased if the fraud has been clearly
established by other evidence. In other words, there must however be evidence aliunde of fraud.
▪ An assignor means an assignor of a cause of action which has arisen and not the assignor of a
right assigned before any of the cause of action has arisen.
▪ In a complaint filed against the administrator or executor in behalf of the estate of a deceased
person, defendant files a counterclaim against them. In such case the counterclaim is a claim
against the executor or administrator.
▪ If however, it is the estate which sets up the counterclaim, the plaintiff may testify to occurrences
before the death of the deceased to defeat the counterclaim. As defendant in the counterclaim,
he is not disqualified from testifying as to matters of fact occurring before the death of the
deceased, said action not having been brought against but by the estate or representative of the
deceased.
▪ A representative means that if a party is so placed in a litigation that he is called upon to defend
that which he was obtained from a deceased person, and make the defense which the deceased
might have had, if living, or to establish a claim which the deceased might have been interested
to establish, if living, then he may be said in that litigation to represent the deceased person.
▪ It should be noted that in order that the rule may apply, the action must be one which is a claim or
demand against the estate of a deceased person and that the action is against the executor or
administrator or representative of such deceased person.
Matters prohibited: The testimony should refer to those matters occurring in the presence and within the hearing
of the decedent to which he might testify of his personal knowledge if he were alive.
▪ Inasmuch as the statutes are designed to protect the interests of a deceased or incompetent
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person, they do not operate to exclude testimony which is favorable to the representative of such
person.
▪ Objection to the competency of the adverse party may be waived by the introduction of the
testimony of the deceased or incompetent person which has been preserved in a bill of
exceptions, or by the presentation of such testimony or testimony of the adverse party which has
been taken at a former trial or hearing.
Section 24. Disqualification by reason of privileged communication. — The following persons cannot
testify as to matters learned in confidence in the following cases:
(a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the
other as to any communication received in confidence by one from the other during the marriage except
in a civil case by one against the other, or in a criminal case for a crime committed by one against the
other or the latter's direct descendants or ascendants;
(b) An attorney cannot, without the consent of his client, be examined as to any communication made by
the client to him, or his advice given thereon in the course of, or with a view to, professional employment,
nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and
his employer, concerning any fact the knowledge of which has been acquired in such capacity;
(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice or treatment given by him or any information which
he may have acquired in attending such patient in a professional capacity, which information was
necessary to enable him to act in capacity, and which would blacken the reputation of the patient;
(d) A minister or priest cannot, without the consent of the person making the confession, be examined as
to any confession made to or any advice given by him in his professional character in the course of
discipline enjoined by the church to which the minister or priest belongs;
(e) A public officer cannot be examined during his term of office or afterwards, as to communications
made to him in official confidence, when the court finds that the public interest would suffer by the
disclosure. (21a)
1. PRIVILEGE is a rule of law that, to protect a particular relationship or interest, either permits a witness to
refrain from giving testimony he otherwise would be compelled to give, or permits someone, usually one
of the parties from revealing certain information. It enforces the broad legal guarantee of confidentiality or
privacy that encourages certain relationships by keeping confidential material out of evidence.
2. Since privileges operate to “shut off the light” on the otherwise competent testimony, many courts
construe them narrowly and give them limited application.
3. WHO MAY ASSERT PRIVILEGE- IN GENERAL
a. Holder of privilege- the person whose interest or relationship is sought to be protected
▪ A privilege is personal in nature.
▪ If the privilege is held jointly by 2 or more persons, each of them can claim the
privilege,
b. Authorized persons
▪ Examples: guardian, executor or administrator (since privileges generally survive the
death of the holder except the winding up of the holder’s estate)
▪ Court or other party may assert, although a privilege is personal, if neither the holder of
the privilege nor anyone entitled to assert it for him is present when the testimony is
sought to be introduced.
c. Persons to whom privileged statements were mademay assert the privilege for the absent holder
as long as the holder is alive and has not waived the privilege.
▪ Example: an attorney on behalf of an absent, living client
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SPECIFIC PRIVILEGES
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may still be invoked even if the communication is not confidential
c. P: lasts even after the death of either spouse; MD: ceases after dissolution of marriage
d. As to purpose
P: protects the hallowed confidences inherent in marriage between husband and wife and therefore
guarantees the preservation of the marriage and further the relationship between the spouses as it
encourages the disclosure of confidential matters without fear of revelation; MD: more concerned with
the consequences such as perjury and domestic disunity which may result if the rule is not there
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f. In controversies between attorney and client, the privilege is relaxed. This doctrine is based on the
ground of practical necessity that if effective legal service is to be encouraged, the privilege must not
stand in the way of the lawyer’s just enforcement of his rights to be paid a fee and to protect his
reputation.
g. The privilege does not extend to communications which have passed in furtherance of prospective
criminal acts. However, while communications made after the wrongful act are privileged, those made
beforehand is contemplation of the fraud or crime are not.
6. Presence of third persons and agents
▪ One who overhears the communication whether with or without the client’s
knowledge is not within the privilege. The same rule ought to apply to one who
surreptitiously reads or obtains possession of a document in original copy.
▪ Questions as to the effect of the presence of persons other than the client and
the lawyer depend upon whether the presence of the agent, clerk or secretary
was in the particular instance reasonably necessary to the matter in hand.
7. Waiver
a. Must be voluntary
b. By whom made:
i. By the client: the attorney is bound by the client’s waiver; the attorney has no right
to waive the privilege except to the extent that he is authorized to do so on behalf
of the client. The client waives the benefit of the rule:
▪ If he himself calls the attorney as witness in respect of the privileged
communications;
-But merely to call the lawyer to testify to facts known by him apart from his employment
should not be deemed a waiver of the privilege.
▪ If he testifies to conversations with his attorney in respect of the matters
claimed to be privileged; or
▪ If the privileged communication is received in evidence without objection
ii. By representatives: Executor, administrator, and heirs
8. Duration. In the absence of statute, the privilege is permanent. It may be claimed by the
client’s executor or administrator as against a stranger after the client’s death. However,
statements which have been made by a client to his attorneys by way of instructions to
be carried out by them after the client’s death, and which must then necessarily be
disclosed, are privileged only during the client’s life.
Exception: When the client’s will is attacked. The lawyer may disclose confidential
communications to uphold the will of the testator.
1. Reason: to facilitate and make safe full and confidential disclosure by the patient to the physician of all
facts, circumstances, and symptoms, untrammeled by apprehension of their subsequent and enforced
disclosure and publication on the witness stand, to the end that the physician may form a correct opinion,
and be enabled safely and efficaciously to treat his patient
2. Requisites: (must be proven by the person who claims this privilege)
a. The privilege is claimed in a civil case.
b. The person against whom the privilege is claimed is one duly authorized to practice medicine,
surgery or obstetrics.
▪ Test to determine whether an information given in the presence of third parties is privileged:
whether a third person was an agent of the doctor in a professional capacity
▪ Hence, the privilege extends to communications which have been addressed to the physician’s
assistants, including a professional nurse who appears to have acted as the physician’s assistant
or agent.
c. Such person acquired the information while he was attending to the patient in his professional
capacity.
▪ Personal capacity means when the doctor attends to a patient for curative treatment, or
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for palliative or preventive treatment.
▪ The physician may testify as to information or knowledge which has been acquired by
him while acting otherwise than in a professional capacity even though he has
previously been called to treat the patient.
d. The information was necessary to enable him to act in that capacity
e. The information was confidential, and if disclosed would blacken the reputation of the patient.
3. Scope: Only disclosure which would have been made to the physician to enable him safely and
efficaciously to treat his patient
It is the tenor only of the communication that is privileged. The mere fact of making a
communication, as well as the date of a consultation and the number of consultations, are therefore not
privileged from disclosure, so long as the subject communicated is not stated.
The privilege includes testimony, affidavit, certificate, and medical records of hospitals containing
privileged matters are prohibited. X-ray plates, radiographs are included.
4. Waiver. It is not a matter within the control of the physician or the parties but a right of the patient as such.
a. Express
▪ Example: Contractual stipulation waiving the privilege
b. Implied
▪ Waiver by failing to object
▪ Waiver by testimony of the patient as to the confidential matter in the course of his examination in
chief. However, waiver is not implied from the patient having testified if he did not act voluntarily
or with knowledge of the privilege.
▪ Where the patient examines a physician as to matters disclosed in consultation
5. Duration. The privilege continues after death of the patient. Hence, it may be waived by the personal
representative of the decedent.
6. Relevancy of Communication to Professional Employment
▪ The privilege does not preclude the introduction of statements which appear to have had no reference
to the condition of the patient.
▪ The physician may testify to facts which he has obtained knowledge from personal acquaintance with
the deceased, either before or after the relationship of physician and patient began.
7. Privilege not violated where doctor testified as expert. The predominating view, with scant authority
otherwise, is that the statutory physician-patient privilege, though duly claimed, is not violated by
permitting a physician to give expert opinion testimony in response to a strictly hypothetical question in a
lawsuit involving physical mental condition of a patient whom he has attended professionally, where his
opinion is based strictly upon the hypothetical facts stated, excluding and disregarding any personal
professional knowledge he may have concerning such patient. But in order to avoid the bar of physician-
patient privilege where it is asserted in such a case, the physician must base his opinion solely upon the
facts hypothesized in the question, excluding from consideration his personal knowledge of the patient
acquired through the physician and patient relationship. If he cannot or does not exclude from such
consideration his personal professional knowledge of the patient’s condition, he should not be permitted
to testify as to his expert opinion.
8. Information acquired by a physician from an examination, inspection or observation of the patient, after he
has submitted himself to such examination may appropriately be said to be acquired from the patient as if
the same information had been orally communicated with the patient.
If the information was obtained from observation and inspection of the patient’s body, the privilege
applies regardless of whether or not such information was necessary for the patient’s treatment.
9. Post-Mortem or Autopsical Information.
▪ Information which has been gained by physicians by observations while attempting
unsuccessfully to resuscitate a patient is privileged.
▪ Some authorities take the position that a corpse cannot be a patient, and that facts which have
been disclosed by an autopsy or post-mortem examination cannot be held to have been acquired
by the examining physician in confidence, and hence that the physician may testify thereto.
▪ If the physician who performed the autopsy was also the attending physician during the life of the
decedent, he cannot be permitted either directly or indirectly to disclose facts which came to his
knowledge while he was treating the living person.
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10. The rule cannot be invoked as a shield for the commission of a crime, and communications, however
confidential they may be, are not within the privilege if made in the furtherance of an unlawful or criminal
purpose. But the fact that a person is on trial on a criminal charge will not permit the disclosure of the
communication, where it was made in good faith to secure medical aid.
Mental or Physical Examination under Rule 28 of the 1997 Rules on Civil Procedure (See Sections 1 to 4 of Rule
28)
Duration of Privilege
Though the privilege continues after death of the patient, it may then be waived by the personal
representative of the decedent.
The confession must be Penitential in Character- A confession of sins with a view to obtaining pardon and
spiritual advice or assistance. It includes any disclosure made in the course of religious practice or consultation
which the member of the clergy would be expected to keep secret.
Notes:
1. Penitent cannot be compelled to disclose his confession.
2. A third person who overheard the confession is not disqualified.
3. Accused went to priest admitted bigamy. The purpose was to his wife to abandon the case. This is not
privileged.
The court may not require the disclosure of a confession to a clergyman to determine whether it is privileged, but
must determine the question from circumstances and facts leading up to the making of the confession.
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The SC of the US has recognized the existence of an executive privilege protecting confidential presidential
communications. This privilege is absolute where the communications relate to military, diplomatic, or national
security secrets. Other communications however, are only presumptively privileged and must yield to a
demonstrated specific needed for essential evidence in a criminal trial. (US v. Nixon)
3. Requisites
Before the privilege can be invoked, the ff. requisites must concur:
1. The holder of the privilege is the government, acting through a public officer;
2. The communication was given to the public officer in confidence;
3. The communication was given during the term of office of the public officer or afterwards;
4. The public interest would suffer by the disclosure of the communication.
Privileged Official Communication- the communication must be given to a public officer. A communication
given to an ordinary employee is not privileged.
The communication must be given to a public officer during his term of office or afterwards. Hence,
communication given to him before he became a public officer is not covered by the privilege.
The communication must be given in confidence.
If a communication is made to a public officer in official confidence but later is made public by him, its
confidential character is lost; hence, no privilege exists not to reveal it.
“Public interest” means more than a curiosity. Its means something in which the public, not only a
particular locality, has some interest by which the legal right or liabilities of the community at large are
affected.
The privilege of a public officer not to reveal information is strictly construed. The burden is upon the party
seeking to suppress the evidence to show that it is within the terms of the rule or statute.
1. Rule. “All deposits of whatever nature with banks or banking investments in bonds issued by the government of
the Phils., its political subdivisions and its instrumentalities, are hereby considered as an absolute confidential
nature and may not be examined, inquired or looked into by any person, gov’t official, bureau or office, except
upon written permission of the depositor, or in cases of impeachment, or upon order of competent courts in cases
of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject
matter of the litigation.” (RA 1405, Sec.2)
2. Reason of the Rule: The mantle of confidentiality is thrown around bank deposit in order to encourage people
to deposit their funds in banks.
3. When Disclosure Allowed
Under the law, a disclosure of the bank deposit is allowed:
1. When so authorized in writing by the depositor himself;
2. In case of impeachment proceedings under the Constitution;
3. Upon order of a competent court in cases of bribery or dereliction of duty of a
public official.
4. Where the money deposited or invested is the subject matter of the litigation.
5. In anti-graft cases.
2. Reason for Rule: The privilege is intended to facilitate the flow of information to the print media, which in
turn will publicize it in the exercise of freedom of the press.
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5.8 THE INFORMER’S PRIVILEGE
The prosecutor may not be compelled to present an informer to protect his identity and when his
testimony would be merely corroborative and cumulative.
Exceptions:
1. When the identity of informer is well known to the accused.
2. Where the disclosure of an informer’s identity is relevant and helpful to the defense of the accused, or is
essential to a proper disposition of the case.
3. The identity of the poseur-buyer is vital when the accused denied having sold marijuana to anyone.
4. Where the testimony was absolutely necessary because it could have helped the trial court in determining
whether or not the accused had knowledge that the bag contains marijuana as an essential ingredient of
the offense.
TESTIMONIAL EVIDENCE
Section 25. Parental and filial privilege.- No person may be compelled to testify against his parents, other
direct ascendants, children, or other direct descendants.
NOTES:
Art. 315 of the Civil Code of the Phils., grants a privilege to a descendant the option to testify or not to
testify against an ascendant. Rule 130, Sec. 25 (c) of the Revised Rules of Court disqualified the
descendant from testifying in a criminal case against an ascensdant. As the Rules of Court cannot amend
a substantive law and change the privilege to a disqualification, the 1989 Rules on Evidence reverted to
the CC provision but relocated it is a separate section (“Testimonial Privilege”) apart from the cluster of
provisions on disqualification “Qualification of Witnesses.”
A child cannot be compelled to testify if he does not want to but if he wants to testify he cannot be
prevented from doing so.
The Rule also expanded the privilege and granted ascendants the option to testify or not to testify against
descendants. The theory of extending the privilege to the ascendants with respect to their descendants is
that the parents have their children more than their children have their parents.
Sec. 25 of Rule 130 applies to both civil and criminal cases. The privilege applied only to a legitimate
family. Hence an illegitimate child may not invoke this privilege in a litigation involving his illegitimate
ascendants.
Section 26. Admissions of a party.-The act, declaration, or omission of a party as to a relevant fact may be
given in evidence against him.
A statement, oral or written, made by a party, or by someone for whom he is responsible as to the
existence of a relevant fact, constitutes an admission receivable in evidence against him.
Admissions are the words or acts of a party-opponent or a representative that are offered as evidence
against the party. They may be express admissions, which are statements of the opposing party or an
agent whose words may fairly be used against the party, or admissions by conduct.
A man’s act, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the
reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not.
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2. No Requirement of Personal Knowledge
A party’s admission will be competent evidence against that party even though she did not
actually have personal knowledge of the facts admitted; hence, an admission (hearsay) may be
predicated solely on another hearsay. This is one situation where a “hearsay on hearsay”
objection is ineffectual.
The admissibility of this class of evidence does not depend on the personal knowledge of the
admitter but rather is predicated upon the assumption that parties will not make significant
statements of fact unless they are satisfied that such statements are true.
3. Form of Admission
The admission may be judicial in which case it is conclusive (Sec.2, Rule 129); extrajudicial, in
which case it is rebuttable. It may be written or oral, it may be express or implied.
The admissions may, be in the form of an act, such as an offer of compromise in criminal cases
or by conduct (Sec. 27), a declaration, such as a confession (Sec.33) or omission, such as an
admission by silence.
Confession: declaration of an accused expressly acknowledging his guilt of the offense charged or of any
offense necessarily included therein.
Admission: statement by the accused, direct or implied, of facts pertinent to other facts, to prove his guilt.
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have been against his interest at the time (though often assumed in
judicial opinions); it is enough if it is present claim or defense.
4. Admissions are used only against the party admitting, whereas
declarations against interest may be admitted against third persons.
9. Testimonial Qualification
The admission must have been made by a party (or by one by whom he is legally bound). “By a
party” is meant party to the action who has been served with process.
The party making the admission need not meet the standards of competency established for ordinary
witnesses. The single exception calling for consideration is lack of mental capacity. It is not also
required that the party speak from firsthand knowledge.
14. The Declarations Need not be Against Interest by May not be Used Against not for Party making the
Admissions
In contrast to declarations against interest under the exception to the hearsay rule, statements or
declarations previously made by a person now a party to the action are admissible against him at
the trial free of the limitations peculiar to the “declarations against interest” exception. Similarly
statements and declarations by persons authorized or standing in a vicarious relationship to the
party are admissible against the party.
24. Non-flight
Generally, the decision of an accused not to flee despite an opportunity to do so is hardly
characteristic of a guilty person seeking to escape retribution for his crime but this is not without
exceptions.
In People v. Gardon, the court held “that appellant did not flee from the scene of the crime is not
necessarily indicative of a clear conscience. He may have smugly thought that the 2 men fishing
on the pier would not be able to identify him, or that they would keep ‘quiet about it’ at his behest.”
Thus, while flight from the scene of the felony is one of the indicia of a guilty conscience;
however, it is equally true that in exceptional cases culprit have become bolder by returning to
their prey under the pretext of feigning innocence to ensure that their victim has been
successfully eliminated (People v. Ocampo)
Demeanor During Trial and Other Conduct. The conduct and demeanor of a party at the trial
tending to show consciousness of liability or wrongdoing, such as false or deceptive explanation,
and suborning, fabricating, or suppressing testimony, may be shown.
Purpose of last par is to encourage the giving of charitable and meritorious aid to victims of accidental harm.
Compromise Offers – evidence of an offer to settle or compromise a claim is not admissible as an admission of
guilt. Even if the offer tends to prove liability, it is rejected.
Reasons: 1) relevancy of the offer will vary according to circumstances – relevancy increases as the amount of
offer approaches the amount claimed.
2) policy consideration is to promote the settling of disputes, which is discouraged if compromises are
admitted.
In Katarungang Pambarangay Law, no case involving any matter w/n the authority of the lupon shall be filed
directly in court unless there has been a confrontation btwn the parties b4 the lupon chairman or pangkat and the
there is a certification that no conciliation has been reached.
Under NCC, no suit btwn family members unless earnest efforts toward a compromise has been made, but failed.
Art 2030, NCC: No compromise in the ff cases:
1. civil status of persons
2. validity of a marriage or a legal separation
3. any ground for legal separation
4. future support
5. jurisdiction of courts
6. future legitime
7. habeas corpus and election cases
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To invoke exclusionary rule, there must be an actual dispute and an apparent difference of view btwn the
parties as to the validity of amount of the claim.
Claims should be paid in full. If the validity and amount of claim are undisputed, an offer to pay a lesser
sum or installments is admissible.
What is excluded? The offer itself only when it is tendered as an admission of the weakness of the
offering party’s claim or defense; suggestions or overtures of settlement.
It does not exclude admission of distinct or independent facts although such admissions are made during
the compromise or connected with the subject-matter of the controversy.
Ex. If a party admits a fact to be true bec it is a fact, it is admissible
The circumstances of the case and the intent of the party making the offer should be considered in
determining the admissibility of an offer of compromise
Ex. If party denies existence of debt and offers to pay for purposes of peace and avoiding litigation, offer
of settlement is inadmissible. If the party admits the debt and proposes to settle the claim amicably, the
admission is admissible to prove such debt.
Section 31. Admission by privies.- Where one derives title to property from another, the act, declaration,
or omission of the latter, while holding the title, in relation to the property is evidence against the former.
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3. during the existence of the partnership or agency
4. after the partnership or agency is shown by evidence other than such act or declaration
5. may be given in evidence against such party
Same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested
with the party.
A declaration by one partner, even if dormant or deceased, relating to the partnership business and
during its existence is admissible against the co-partners.
Proof of partnership must first be shown before one partner can be charged with the admission of
another.
Principle of conditional admissibility – discretionary upon the judge; admission of only one partner can be
proved at a time, declarations may be received where the existence of a partnership is alleged w/o proof
of the partnership at that time.
Admissions of a persons jointly obligated may be received in evidence against the others. To be binding,
essential that 1) joint interest be made to appear by evidence other than the admission itself, 2)
admission relates to the subject-matter of the joint interest, 3) at the time the admission was made, the
person admitting must still be jointly interested with the party against whom the admission is offered.
In a common obligation (joint debtors), admission of one debtor is not binding upon the other.
If one of the defendants sued as joint tortfeasors offers evidence of an admission of negligence by a co-
defendant to throw the blame onto the other defendant, such admission is inadmissible, unless qualifying
as res gestae statements, declarations against interest, or the like.
Persons w/ joint or several interest in property
1. admissions by administrator – not admissible against the heirs, devisees, coexecutor/administrator or
subsequent administrator; same is true although the administrator is also an heir; reason is cannot
prejudice interest of the estate.
2. admission by heirs – not admissible against a coheir/devisee/legatee, as their interests are several, not
joint
3. admission by tenants – admissions of a joint tenant or owner are admissible against the others on the
theory of privity of estate; but, admission of tenant in common are not admissible against co-tenant, as
the undivided interest of each is separate and distinct
Agents: 5 standards for admissibility of evidence of stmts when offered against his principal
1. stmt is an operative fact of a transaction and hearsay rule is not involved
2. principal has authorized agent to speak on his behalf w/ reference to specific matters
3. principal has ratified or adopted the instrument
4. stmt of agent is of res gestae quality or an act in the scope of the agency
5. when stmt is made by the agent w/n scope of agency
agency should be previously proved by evidence other than the admission itself
admission of guardian in giving away ward’s property is never binding; duty to conserve and protect
ward’s interests
parents cannot waive rights of their minor children; express prohibition to alienate minor’s properties w/o
judicial authorization
if party refers another to a third person for stmt, he is bound by stmts given by such accredited agent
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immaterial whether stmts are oral or written, express or inferable
no admission during trial shall be used in evidence against accused unless reduced in writing and signed
by him and accused; rule not apply to admissions of lawyer in the course of trial
out-of-court settlements (oral or written) by counsel and not within authority are not binding on client
unless made as a procedural act or pursuant to an express or implied authority
admissions by counsel in the course of casual conversation relating to the controversy are not binding
upon client, unless made in the presence of clients who do not object
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Exc 3: Admission by privies
Privies denotes the idea of succession – heirship, testamentary legacy, succession by singular title, acts
inter vivos, assignment, subrogation, purchase, substitution
Successor acquired interest burdened with same liability of having declarations w/c could have been used
against the predecessor; admissible in evidence if there is privity of interest (privity in law, obligation,
blood or estate); applies to both real and personal properties
Necessary that admission of former owner has been made while he is still the owner of the property in
order to bind the successor, unless there is collusion or fraudulent scheme btwn the grantor and grantee
Landlord and tenants: all who succeed the tenant is affected by the acts and acknowledgment of his
predecessor; but, declarations of a tenant are not admissible against his landlord, unless exception to the
hearsay rule or are relevant to the question of tenancy as evidence of reputation w/c landlord has
knowledge
When admissions not admissible: if made after the sale or other conveyance, unless conveyor remains in
possession or declaration is made in the presence of the transferee and acquiescence can be inferred or
unless there is collusion or fraud; admissions can not be received to contradict the terms of the written
instrument
Requisites
1. he must heard and understood the stmt
2. he must have opportunity to deny it
3. stmt relates to some matter affecting his rights or interests, calling for an answer
4. facts were w/n his knowledge
5. fact admitted or inference drawn from his silence would be material to the issue
party must have actually heard the stmt; fact that w/n hearing distance of the speaker is not sufficient
unless actually heard
understood it in the language known to him
Right to remain silent under custodial investigation for the commission of an offense: silence is not
admissible; prohibits inference of guilt from silence of accused who has been arrested, detained and
investigated
Reenactment: not part of formal investigation, but a police continuance; if accused consented and
willingly took part in it although silent, his acts are admissible against him; he should have protested
Judicial Hearing: silence as admission not apply in a judicial proceeding; but, evidence of party’s failure
while on the stand at a subsequent trial to deny or explain accusatory stmts by the court at a former trial
of the cause is admissible
P v Paragsa: admission by silence applied in failure of rape victim to rebut the claim of voluntary carnal
knowledge
Neglect or refusal of accused to be a witness shall not in any manner prejudice or be used against him
In civil cases, unreasonable delay in the enforcement of claims is an implied admission of lack of merit;
unless delay is satisfactorily explained
P v. Artieda: delay due to fear of reprisal is justified
Failure to report immediately casts serious doubt on the accuracy/veracity of the identification of the
accused; natural tendency is to report crime immediately and describe malefactors at the earliest
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opportunity
Initial reluctance to get involved in a criminal case is a judicial notice; the same should not detract from
witness’ credibility because of fear of their lives
Weight of admission: testimony should be received and applied with caution
Failure to reply to a letter or other written communication is not deemed an admission of the truth of the
matters therein stated; But, business letters that normally calls for a reply of denial if the stmts are untrue
may impose admission on the addressee if he fails to reply in the normal course; Reason: men use
tongue much more readily than the pen and more accustomed to reply and deny or correct a false stmt
verbally
If written stmt is read in the presence of others, the party’s failure to deny its assertions may be received
as an admission
If letter contains several stmts, states position on some but fails on some, such failure is admissible as an
admission with respect to those omitted stmts
If negotiations have been broken off by one party indicating that further communication would be fruitless
or that the letter was written after litigation was instituted, failure to answer is not deemed an admission
Account Stated Rule: failure to answer a letter containing a statement of account is an implied admission;
objection should be made w/n a reasonable time
Doctrine of Adoptive Admission: An adoptive admission is a party’s reaction to a statement or action by
another person when it is reasonable to treat the party’s reaction as an admission of something stated or
implied by the other person (Estrada vs. Desierto 356 SCRA 108).
Key Principle
Sec. 12, Art. III of the 1987 Consti – (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, violence, threat, intimidation or any other means which vitiate the free will shall be used vs.
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 Sec. 17 hereof shall be inadmissible in evi vs.
him.
(4) The law shall provide for penal and civil sanxns for violations of this section as well as compensation to
and rehabilitation of victims of torture or similar practices, and their families.
→ Purpose: to counteract the intimidating atmosphere of a custodial investigation <footnote 11>
Confession v. Admission
→ An admission is something less than a confession, and is but an acknowledgment of some fact or
circumstances which in itself is insufficient to authorize conviction, and which tends only to establish the
ultimate fact of guilt.
→ Under Sec. 3 of Rule 133, an extrajudicial confession made by the accused is NOT sufficient for conviction
unless corroborated by evi ofcorpus delicti.
→ The exclusionary rule encompasses both admission and confession.
Requisites
→ Under existing laws, for a confession to be admissible, it must be:
(a) Express (Sec. 33)
(b) Voluntary (Sec. 12(1), Consti)
(c) With assistance of competent and independent counsel (Sec. 12(1), Consti)
(d) In writing (R.A. 7438)
→ The CI report shall be reduced to writing by the investigating officer, provided that before such report is
signed or thumbmarked, if the person arrested or detained does not know how to read and write, it shall be
read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating
officer in the language or dialect known to such arrested or detained person, otherwise, such report shall be
null and void and of no effect whatsoever. (R.A. 7438)
→ Any extrajudicial confession made by a person arrested, detained or under CI, 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, elderbrothers and sisters, his spouse, the municipal mayor, the municipal
judge, district school supervisor, priest or minister of the gospel, as chosen by him; otherwise, such
extrajudicial confession shall be inadmissible as evi in any proceeding. (R.A. 7438)
→ In add’n, the accused must be asked whether he wanted to exercise or avail himself of such right.
Problem Areas
(1) When does the right of a person under investigation for an offense to be informed of his constitutional
right begin?
▫ threshold question: Wh en is a person (constitutionally) under investigation for the commission of an
offense?
→ Two Theories
(a) Restrictive View – ltd to “incustody” or CI
(b) Expanded View – the noncustodial interrogation includes “any investigation” of a person for an offense
even if not under custody
→ Preliminary Stmt
▫ There are generally two kinds of investigations where an interrogation may take place – nonCI and CI.
▫ The nonCI contemplates two situations – (a) the general inquiry into an unsolved crime when investigators i
nterview witnesses at random; and (b) when suspicion is focused on a particular person and questions are
asked from him to elicit admissions or info.
→ <CI as discussed in Miranda v. Arizona> Without proper safeguards the process of incustody interrogat
ion of persons suspected or accused of crimes contains inherently compelling pressures which work to
49 | Page
undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so
freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege vs. self-
incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those
rights must be fully honored.
The rights under CI do NOT terminate with the filing of the info
▫ [People v. Maqueda] – An Amended Info for Robbery with Homicide was filed vs. the accused who was
arrested by virtue of a warrant of arrest issued by the court. Accused wasbrought out from detention and his
stmt was taken by the police wherein he narrated his participation in the crime. The trial court admitted the
stmt of the accused although it was taken without the assistance of counsel because it was of the opinion that
since an info had already been filed in court vs. him and he was arrested pursuant to a warrant of arrest
issued by the court, the stmt was not therefore taken during CI. The First Division, speaking through Justice
Davide rejected the confession and held that the exercise of the rights to remain silent and to counsel and to
be informed thereof are not confined to that period prior to the filing of a criminal complaint or info but are
available at that stage when a person is “under investigation for the commission of an offense.”
◦ The interrogation in Maqueda was essentially “custodial” under a police dominated atmosphere within
the contemplation of Miranda and, consequently he is entitled to the rights of a person under investigation
for the commission of an offense.
(2) How shall the person under investigation for an offense be informed of his constitutional rights?
▫ The right of the person under interrogation to be “informed” implies a correlative oblig on the part of the
police investigator to explain and contemplates an effective communication that results in understanding what
is conveyed.
▫ Since it is comprehension that is sought to be attained, the degree of explanation req’d will necessarily vary
and depend on the education, intelligence, and other relevant personal circumstances of the person
undergoing investigation.
▫ [People v. Velasco (1981)] – Where appe llant was informed of his constitutional rights, but was not asked
whether he wanted to exercise or avail himself of such rights, there is a manifest failure to comply with the
constitutional req’t for the admissibility of extrajudicial confession.
(3) What is meant by the right to the assistance of a competent and independent counsel?
→ Counsel Must be of Suspect’s Own Choice
▫ [People v. Deniega (1995)] <competent and independent> Their add’n in the fundamental law of 1987 was
meant to stress the primacy accorded to the voluntariness of the choice, under the uniquely stressful condit
ions of a CI, by according the accused, deprived of normal conditions guaranteeing individual autonomy, an
informed judgment based on the choices given him by a competent and independent lawyer.
▫ [People v. Bandula (1994)] – He cannot be a special counsel , public or private prosecutor, counsel of the
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police, or a municipal atty whose interest is admittedly adverse to the accused. As a legal officer of the
municipality, he provides legal assistance and support to the mayor and the municipality in carrying out the
delivery of basic services to the people, including the maintenance of peace and order. It is thus seriously
doubted whether he can effectively undertake the defense of the accused without running into conflict of
interest. He is no better than afiscal or prosecutor who cannot represent the accused during CI.
▫ [People v. Januario (1997)] – An applicant for a position in the NBI who was asked to assist the accused
under investigation by the NBI is NOT an independent counsel.
▫ [People v. Hernandez (1997)] – The fact, however, that the lawyer who assisted the accused while being
investigated for kidnapping by the CIS is a retired member of the Judge Advocates office should not cast
doubt on his impartiality in assisting appellants during the invest
igation.
◦ Role of Assisting Lawyer – It is to prevent the accused from incriminating himself. The right to
counsel is designed to preclude the slightest coercion as would lead the accused to admit something
which is false.
◦ A lawyer cannot be faulted when he did not prevent the accused from truthfully answering the questions
propounded by the investigators. For allowing the free flow of truth, counsel cannot be deemed as an
incompetent counsel.
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Doctrine of Ratification
▫ [Estacio v. Sandiganbayan] – It was earlier held while it is true that petitioner’s waiver of his right to remain
silent and to assistance by counsel was not made in the presence of c ounsel, the defect was cured and the
req’t in Galit case was substantially complied with when Estacio’s lawyer arrived at the closing stage of the
interrogation, read the stmt and talked to accused before he signed it.
→ Doctrine of Ratification NOT Applied: Return to Burgos
▫ [People v. Compil (1995)] – The belated arrival of the Citizens’ Legal Assistance Office lawyer the day after
the interrogation even prior to the actual signing of the uncounselled confession does not cure the defect for
the investigators were already able to extract incriminatory stmts from the accused.
(4) Who has the burden of proving the voluntariness of the confession?
→ Prosecution must prove voluntariness and may no longer rely on presumption of regularity.
▫ [People v. Ramos] – The Court ruled that the verbal admission by the accused during CI was inadmissible,
although he had been apprised of his constitutional rights, for the reason that the prosecution failed to show
that those rights were explained to him, such that it could n ot be said that “the appraisal was sufficiently
manifested and intelligently understood” by the accused.
▫ [People v. Trinidad] – Prosecution must present evi to rebut claim of maltreatment; otherwise, the confession
will be considered illegally procured.
→ Return to Presumption of Voluntariness
▫ A confession is admissible until the accused successfully proves that it was given as a result of violence,
intimidation, threat, promise of reward, or leniency.
▫ The burden is on the accused to prove the volunta riness of the confession.
◦ Herrera: The foregoing pronouncements on the presumption of voluntariness is contrary to Miranda v.
Arizona which has been constitutionally adopted in this jurisdxn.
◦ Fr. Bernas: If the foregoing protections and warnings are not demonstrated during the trial to have been
observed by the prosecution, no evi obtained as a result of the interrogation can be used vs. him.
◦ [People v. Santos (1997)] – Thus, no presumption of constitutionality may be accorded any extrajudicial
confession until the prosecution convincingly establishes the regularity of its taking and its compliance
with the Consti. This is the price the prosecution has to pay before it can be allowed to use such
formidable evi vs. the accused.
→ Tricks, Threats and Promises
(a) Confession by Trickery
▫ Confession obtained thru trickery or fraud are admissible, f or the use of such means, accdg to Justice
Moran does not tend to induce the making of a false confession. Thus, confession obtained by a
detective posing as prisoner (State v. Brooks) or under promise of secrecy and help to escape were held
as admissible. (Rutherford v. Commonwealth)
◦ Herrera: Confessions obtained by fraud, artifice, trickery, or deception should be inadmissible for it is
in violation of the right of the accused not to be compelled to be a witness vs. himself regardless of
whether what he confessed is true or not. The issue should not be whether he was tricked into telling
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the truth or not, but whether he was compelled to be a witness vs. himself. The rationale behind
Miranda is not to merely avoid the use of force or intimidation in obtaining a confession but to prevent
the suspect from testifying vs. himself unless there is an intelligent waiver, as this would violate his
right vs. compulsory self-incrimination. This prohibition includes various techniques of interrogation
consisting mostly of artifice—without the assistance of counsel.
(b) Confessions procured by threats or promise of reward or leniency
▫ The promise must be made by persons in authority like a prosecuting officer. A promise of immunity by
a rankles officer does not render confession involuntary.
◦ person in authority – person who is engaged or concerned in the apprehension, prosecution, or
examination of the accused
▫ Exception: Where the accused discharged as a state witness confessed because of promise of
immunity and on retracts – confession is admissible
(c) Threats or promises by private person without sufficient authority does not render confession
involuntary
(d) Confession induced by spiritual exhortation
▫ The term “benefit” when used in connection with the procurement of a confession means a temporal or
worldly benefit. It is the enticement of a temporal benefit only that will affect the voluntary character of a
confession made in hope of it. Thus, exhortation of a moral, religious, or spiritual nature which results in
the making of a confession does not render it involuntary.
(e) Offer of reward or pardon renders confession voluntary and inadmissible
▫ The offer must have influenced the confession and not by mere fact that the promise was made.
(f) Confession made under the influence of parental sentiment
▫ Moran: admissible BUT not credible
▫ Martin: NOT admissible
(g) “Better tell the truth confess” and “For the good of the service.” – NOT threats and are admissible
(h) A confession offered in evi and not objected to by the defendant is regarded as prima facie
voluntary.
→ Other Indicia of Voluntariness
(a) The untruthful stmt of facts in the confession
(b) Confession of an unschooled farmer – not a basis for conviction of a capital offense unless sufficiently
corroborated
(c) Hospitalization of the accused and his having a swollen elbow indicate quite strongly that he was coerced
into making the extrajudicial confession
(d) Confession in flawless Tagalog while accused is a Bicolano
→ Indicia of Voluntariness
(a) Abundance of details
▫ Exception: when the facts show that the jail guards and investigator had previously acq’d a detailed info
abt the killing; confession which was not completed until after several days and which was not signe d
cannot be given credence
(b) Failure to complain to swearing officer
(c) Failure to file criminal or administrative axn vs. the alleged torturers
(d) Absence of mark of violence in his body
(e) Response to every interrogatory is so fully informative even beyond the req’ts of the questions as to
indicate the mind to be free from extraneous retraints
(f) Contradictions between confessions and prosecution witnesses, and the fact that the same are mitigating
and evasive
(g) Confession followed by re-enactment in accordance with conf ession
(h) Presence of a press rep during the taking of an extrajudicial stmt and absence of press report of
manhandling – evi of lack of coercion
→ Duty of Swearing Officers
▫ Judges and fiscals, to whom persons accused are brought for swearing, to the truth of their stmts, would do
well to adopt the practice of having the confessants physically and thoroughly examined by independent and
qualified doctors before administering the oath, even if it is not requested by the accused. Or, if no doctor is
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immediately available, they should themselves examine the body of the accused for marks of violence.
◦ This would not only deter attempts to secure confessions through violence but ultimately shorten and
speed up criminal trials by precluding future controversies on whether the stmts were obtained through
torture or not.
→ Waiver of Right to Counsel
▫ [Filoteo v. Sandiganbayan (1996)] – The specific provi of the 1987 Consti requiring that a waiver by an
accused of his right to counsel during CI must be made with the assistance of counsel may not be applied
retroactively or in cases where the extrajudicial confession was made prior to the effectivity of said Consti.
◦ Although a number of cases held that extrajudicial confessions made while the 1973 Consti was in force
and effect, should have been made with the assistance of counsel, the definitive ruling was enunciated
only on 26 April 1983 when the Court, through Morales Jr. v. Enrile issued the guidelines to be observed
by law enforcers during CI. <reiterated in People v. Galit (1985)>
◦ Petitioner may not claim the benefits of the Morales and Galit rulings because he executed his
extrajudicial confession and his waiver to the right to counsel on 30 May 1982, or before 26 April 1983.
→ Rules on Admissibility of Receipts for Marijuana or Money Signed by Accused
(a) Cases where receipts were held admissible
▫ receipt and booking sheet report – They do not form part of the CI where the presence of counsel is
req’d.
▫ The accused signed money bills. The signature is not a confession or extrajudicial stmt.
(b) Cases where receipts held inadmissible
▫ signature on sack
▫ [People v. Wong Chuen Ming] – The signatures of the accused on the boxes and on the plastic bags are
tantamt to an uncounselled extrajudicial confession which isNOT sanctioned by the Bill of Rights and are,
therefore, inadmissible as evi.
▫ booking sheet reports – NOT confessions and are inadmissible to prove guilt
→ Confession or Admission Rejected Even if Confirmed by Subsequent Facts
▫ [People v. Jimenez] – The interrogation of Marcos Jimenez having been conducted without the assistance of
counsel, and no valid waiver of said right to counsel having been made, not only the confession but also any
admission obtained in the course thereof are inadmissible vs. him. xxx This is so even if it be shown that the
stmts attributed to the accused were voluntarily made, or are afterwards confirmed to be true by external
circumstances.
→ Qualified Admissibility: Identical or Interlocking Confessions
▫ While an extrajudicial declaration of a coconspirator may not be directly introduced in evi vs. another co
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conspirator as proof of specific facts, it may nevertheless under certain conditions be taken into consideration
as a circumstance in gauging the credibility of the testimony of an accomplice.
▫ Extrajudicial confessions that are identical in their material re spects are admissible, vs. all declarants as
confirmatory of the other. They are, therefore, alone admissible as circumstantial evi vs. the others, to show
the probability of the latter’s actual participation in the crime. They are also admissible as corroborative evi
vs. the other, it being clear from other facts and circumstances presented that persons other than the
declarants themselves participated in the commission of the crime proved and charged.
▫ Once conspiracy is established, the confession of the accused is admissible vs. the other as corroborative
evi of other facts that tend to establish the guilt of the co-conspirator.
→ Test to Determine Whether Admission is Corroborative
▫ Examine the other evi with a view to ascertain if these tend to connect the accused with the offense.
▫ Before extrajudicial confessions may be admissible as circumstantial evi vs. a person implicated to show the
probability of the latter’s participation in the commissi on of the crime, the ff. must be present: (a) several
confessions implicating another person; (b) the confessions are made independently without collusion; (c)
they are identical with each other in their essential details; (d) they are corroborated by other evi on record;
and (e) they were made soon after the commission of a crime.
→ Trend of Rulings on Vs. Whom Confession is Admissible Ltd. Only Vs. Confessant
▫ Illegallyseized articles inadmissible only vs. person whose right was violated
▫ illegallyobtained confessions are inadmissible even vs. third persons.
▫ [People v. Raquel (1996)] – (J. Regalado) The extrajudicial stmts of an accused implicating a coaccused
may not be utilized vs. the latter, unless these are repeated in open court. If the accused never had the
opportunity to crossexamine his coaccused on the latter’s extrajudicial stmts, it is elementary that the same
are hearsay as vs. said accused.
Form of Confessions
→ [Aballe v. People (1990)] – It has been held that any person otherwise competent as witness who heard
the confession is competent to testify as to the substance of what he heard if he heard and understood all of
it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance.
→ However, under R.A. 7438, any extrajudicial confession shall be in writing.
Weight of Confession
(a) Duty of Judges in Weighing Confessions
→ The most painstaking scrutiny must be resorted to by the trial courts in weighing evi relating to an
alleged voluntary confession of the accused and the courts should be slow to accept such confession
unless corroborated by other testimony.
→ In passing upon the weight and admissibility of a confession, the court may take into consideration the
circumstances and conditions under which it was obtained, and may consider claims that a stmt was
taken in circumstances which violate the standard of voluntariness – a standard grounded in the policies
of privileged self-incrimination.
→ It is not a sound practice for the Court to disregard a confession just because the accused repudiates it
at the trial. Before setting aside a confession, the reasons and motives for its repudiation should be
carefully scrutinized.
(b) The Language Used; NO Oath Req’d
→ A confession written in a language which the accused does not speak or understand is admissible,
provided it was translated to him.
→ If witness testified that he heard the confession thru the interpreter, it is hearsay.
→ It is a fact that the confession is made by the accused and vs. his own interest which gives confession
evidentiary value, and provided the fact isestablished, it does not matter whether it is under oath or not.
(c) Confession Must be Considered in its Entirety
→ A confession must be considered in its entirety including inculpatory or exculpatory stmts.
▫ confession of killing because accused caught his wife committing adultery must be presented in its
entirety
→ Portions may, however, be rejected if improbable, false or unworthy of credit.
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(d) Testimony of Eyewitness is NOT Necessary
→ Wellestablished is the rule that it is not necessary that an eyewitness should testify on having seen
the accused committing the crime or had seen him under circumstances indicating his having committed
the crime, before the accused may be held liable under his confession.
(e) Must be Corroborated by Evi ofCorpus Delicti (Sec. 3, Rule 133)
→ It does not mean that all the elements of the crime must be clearly established by evi independent of
that confession. It only means that there should be some evi tending to show the commission of the
crime apart from the confession.
Weight of Judicial Confession
→ Evi must be presented in capital offenses and the Court must be satisfied that the plea of guilty was
entered with full knowledge of meaning and consequences of his act.
→ Where There is NO Evi of Corpus Delicti
▫ [Allado v. Diokno (1994), citing U.S. v. Samarin (1902)] – Where the supposed victim is wholly unkown, his
body not found, and there is but one witness who testified to the killing, the corpus delicti is not sufficiently
proved. The SC refused to believe the testimony of the confessed killer that the body of the supposed victim
was completely burned to ashes with the use of gasoline and rubber tires from 10 p.m. to 6 a.m. leaving no
traces of his remains is highly improbable if not ridiculous. Even crematories use entirely closed incinerators
where the corpus is subjected to intense heat. Thereafter, the remains undergo a process where the bones
are completely ground to dust. Hence, the SC held that there is serious doubt on proof of corpus delicti.
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officer may take and introduce in evi. An officer making an arrest may take from the person arrested any
money or prop found upon his person which was used in the commission of the crime or was the fruit of the
crime or which might furnish the prisoner with the means of committing violence or escaping, or which may be
used in evi in the trial.
▫ The fruits of confession without assistance of counsel was considered inadmissible. Equally
inadmissible is the kitchen knife recovered from Aballe after his capture and after the police had started to
question him. Together with the extrajudicial confession, the fatal weapon is but a fruit of a
constitutionally infirmed interrogation and must consequently be disallowed.
→ Principle That Exclusion Ltd to Stmts and Does NOT Include Objects
▫ [People v. Paynor (1996)] – The constitutional rights under CI applies only vs. testimonial compulsion and
not when the body is proposed to be examined. In fact, an accused may validly be compelled to be photog
raphed or measured, or his garments or shoes removed or replaced, or to move his body to enable the
foregoing things to be done without running afoul of the proscription vs. testimonial compulsion.
◦ <footnote 20> The foregoing pronouncements do not appear to have considered the doctrine of the “fruit
of the poisonous tree” which applies to objects as fruits of an unsounseled confession.
→ Rule Ltd to Stmts of Accused NOT Those of Witnesses
▫ [People v. Bombesa (1988)] – The accused assailed the trial court for admitting in evi the affidavit of
prosecution witness Justo which was allegedly obtained from him by means of force or intimidation and
without the assistance of counsel. The court agreed with the Sol Gen’s argument that Justo is not an
accused, but merely a witness for the prosecution and held that the 1987 Consti appears to limit inadmissible
confessions to those executed by the accused himself, and does not include those stmts made by the
witnesses.
Second part of res inter alios acta rule; first part in sec 28
Conduct as evidence
General Rule: evidence that one did or did not do a certain thing at one time is not admissible to prove that he
did or did not do the same or a similar thing at another time
It is not proper to show proof of previous bad conduct that he has a propensity for committing a crime and
bec he committed other crimes on previous occasions he probably committed the crime in question
Reason: reason, justice and judicial convenience; commission of a past crime is not a guaranty of
commission of a present crime; mind, modes of life and conditions may change
EXCEPTION: Malig v. Sandiganbayan: it may be received to prove a specific intent or knowledge, identity,
scheme, plan, system, habit, custom or usage, and the like
In criminal cases, evidence of other crimes/wrongful acts of accused is not admissible to prove character,
but may be offered to prove intent, ……; to be admissible, evidence must show that the other offenses
are so related in time, place and circumstance to the offense charged as to have substantial probative
value
TC given discretion to determine whether similar acts are too remote or sufficiently near in point of time to
the specific act in issue; there must be logical connection that the accused is the one who committed it
Illustrative cases:
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1. forgery – evidences of other forgeries may be admitted to show intent, system, plan, …
2. acts of lasciviousness – evidence of other sex acts not too remote in time is admissible
3. homicide by poison – other mysterious or unexplained deaths in the HH is admissible
4. arson – proof that accused had set fire to bldg previous to the burning is admissible to prove intent
Specific Intent
Whenever mental state, guilty knowledge, or intent is an essential element of the act charged, evidence is
admissible acts committed by one party and his conduct at or about the time of the commission of the act
charged w/c tends to establish his knowledge, intent, motive for the commission of the crime
Malig v. Sandiganbayan: testimony of witness that COA auditors has received from previous construction
projects sufficiently establishes accused’ intent and habit of demanding and receiving money
Identity
Not admissible when not in issue; evidence of another crime is not admissible in another crime, unless it
is relevant as when it tends to identify the defendants as the perpetrators of the crime
Classifications of custom
1. general – prevailing throughout a country and becoming a law of that country, and their existence is to
determined by the court
2. local – prevailing only in some particular district or locality, city or town
3. particular – affects only the inhabitants of some particular district
Usage vs. customs: usage is a repetition of acts; customs is the general rule w/h arises from such
repetition
Habit vs. character: character evidence refers to the quality of a person’s conduct; habit evidence refers
to the person’s routine reactions in particular situations
Requirement for admissibility of habit evidence: must be specific, routine (performed w/o deliberation),
and continuous, and routine acts must be invariable
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Habit or custom may be proved by particular acts
Evidence of careful habit or reckless conduct of injured person by another’s negligence is not admissible
to show care on his part at the time of injury
to prove the whole case, other crimes may be disclosed in introduction of evidence; there must be causal
relation or connection btwn the two acts that they may logically be said to form part of one transaction
Section 35. Unaccepted offer. – An offer in writing to pay a particular sum of money or to deliver a written
instrument or specific personal property is, if rejected without valid cause, equivalent to the actual
production and tender of the money, instrument, or property.
TESTIMONIAL KNOWLEDGE
Section 36. Testimony generally confined to personal knowledge; hearsay excluded . – A witness can
testify only to those facts which he knows of his personal knowledge; that is, which are derived from his
own perception, except as otherwise provided in these rules.
GENERAL RULE: A witness can testify only to those facts which he knows of his personal knowledge; that is,
which are derived from his own perception, except as otherwise provided in these rules.
HEARSAY RULE
A witness testimony may be based on:
(i) the witness personal knowledge of the facts involved;(admissible)
(ii) her or his opinions, conclusions, or estimates about those facts;(often not)
(iii) reports of the facts obtained by the witness from other persons or sources.(depends)
2. NON-HEARSAY - Admissible. This occurs when the purpose for introducing the statement is not to prove the
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truth of the facts asserted therein but only the making of the statement and are admissible in evidence
when the making of the statement is relevant . These are so-called INDEPENDENTLY RELEVANT
STATEMENTS.
o purpose is not to prove the truth of facts asserted in statement
o to be admissible, the making or utterance of statement must be independently relevant regardless
of its truth or falsity
o statements to impeach credibility of witness e ( .g. prior inconsistent statements offered to impeach
credibility)
o classifications:
o statements which are the very facts in issue ( e.g. utterances in libel and slander, utterances in
offer and acceptance of contracts)
o promises of marriage(e.g.won a promise was made)
o as circumstantial evidence of the fact in issue(e.g. a statement of a person to show his physical
condition in an assault case)
o statement introduced to establish the fact that a party relied thereon(e.g. in an adultery case, son
told his father that he prefers the restaurant, in a motel, where his mother and doctor used to eat)
o statement of a person showing his physical condition, illness, etc.
o statement of a person from which an inference may be drawn as to the state of mind of another
person (to show defendant acted in the heat of passion w/no intent to kill- X testified that his
fiancée told him that she was pregnant by another man)
o statement identifying date, place, person, etc.
3. EXCEPTIONS TO THE HEARSAY RULE- Those which are hearsay but are considered as exceptions to the
hearsay rule and are therefore admissible. These are from Sections 37 to 47 of Rule 130, namely:
o Dying Declaration;
o Declaration Against Interest;
o Act or declaration about pedigree;
o Family reputation or tradition regarding pedigree;
o Common reputation;
o Res Gestae;
o Entries in the ordinary course of business;
o Entries in official records;
o Commercial lists;
o Learned treatises;
o Testimony or deposition at a former proceeding.
DEFINITION
- oral testimony or documentary evidence as to somebody’s words or actions outside of court, where they
are offered to prove the truth of the matters they assert(Wigmore)
- kind of evidence which does not derive its value solely from the credit to be attached to the witness himself
but on some other person from whom the witness has received his information (Jones)
- includes all assertions which have not been subject to opportunity for cross-examination by the adversary
at the trial in which they are being offered against him
- signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is
elicited and which consequently is not subject to cross-examination
- matters not derived from his own perception and is not competent to prove the truth of the matters
asserted in the perception
CHARACTERISTICS
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- original source is not a party to the action nor an agent of a party
- statements wee made out of the hearing of the party to be charged
- such other person who made the statements and who should be the one to testify cannot be cross-
examined
- the witness cannot swear to its truth beyond what he has heard or been told
- objectionable because it is not the proof o the fact in question but merely a proof as to what a person has
said as to such fact
ELEMENTS
(i) an assertion or conduct amounting to an assertion;
(ii) made by an out-of-court declarant or actor;
(iii) offered to prove the truth of the matter asserted at the trial in which it is offered.
ADMISSIBILITY OF NONASSERTIVE CONDUCT(acts not intended by the actor to be assertive but by inference
or translation is assertive) e.g. flight from arrest not intended to reflect guilt by the actor but such conduct is
considered an awareness of guilt
1st view: [under Wigmore] not treated as hearsay and is admissible not only to show the declarant’s state of mind
but to prove the truth of the matter asserted(reason is the notion that action speaks louder than words
)
2nd view: [under Morgan] hearsay, where it is offered as proof of some fact, it is an implied assertion of the actor’s
beliefs regarding such fact and hence objectionable as an express assertion
Hearsay Cases:
- a certificate stating the result of an autopsy without the person issuing the certificate being called to the
stand
- affidavits of witnesses presented against accused (right of confrontation precluded)
- a baptismal certificate presented as proof of filiation
- a police blotter to prove a crime
- a diary kept by the accused if used in his favor
- a newspaper clipping presented by accused to show that as reported therein, it was another person who
drove the get away car
- statements during preliminary investigations by other accused
- testimony of a witness for the defendant that a third party confessed to the killing
Hearsay within hearsay is admissible to prove the included statement, if both meet the tests of exception
to hearsay rule. e.g.reports of investigations by law enforcement agency admissible as an official report but not
its contents unless proved a hearsay exception
Testimony of a witness as to statements made by nonhuman declarants not hearsay. e .g. a witness on
stand states that radar equipment said that X was driving 90miles an hour.
Hearsay evidence not objected to may be admissible but, whether objected to or not, has no probative
value and as opposed to direct and primary evidence, the latter always prevails.However, relaxation of the
rule applied in some cases when it appears reliable in certain cases (see Tison v CA).
Nonprobative Value Principle should not be confused with the effects of a valid waiver of x-examination where
utterances may be given weight that it deserves in the discretion of the court.
- ante mortem statements made by a person after the mortal wound has been inflicted, under a belief that
death is certain, stating the facts concerning the cause of, and the circumstances surrounding the attack
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- applies to any case where the death of the declarant is the subject of the inquiry
REQUISITES:
(i) That declaration must concernthe cause and surrounding circumstances of declarant’s death;
(ii) That death is imminent and the declarant is conscious of such fact;
(iii) That declarant is competent to testify;
(iv) That the declaration is offered in a case wherein thedeclarant’s death is subject of the inquiry;
(v) That the statement is complete in itself (People vs. De Joya, 203 SCRA 343).
Cause and circumstancesinclude, among others, themeans used and by whom the declarant was injured.
There must be an inevitable, imminent or actual danger of death and hopelessness as manifested by his
utterances, the actual character and seriousness of his wounds and the circumstances.
HERNANDEZ DOCTRINE: When death supervenes speedily after the declaration is made, the
inference that the deceased realized his condition may be obvious. In a case in which thedeclarant died
immediately after stating who had attacked him, his declaration was admitted. In another case, where the
declarant was seriously wounded and died a few minutes after stating the name of his assailant, the
statement was held admissible.
Declarant must not be insane or incapacitated and dying declaration of wife or husband is admissible against the
other.
A dying declaration may be oral, written or made by signs which could be interpreted and testified to by a
witness therein.
Dying declaration may also be regarded as part of the res gestae as they were made soon after the startling
occurrence without the opportunity for fabrication or concoction.
To be complete in itself, does not mean that the declaration must recite everything that constituted the res
gestae of the subject of his statement, but that his statement of any given fact should be a full expression of all
that he intended to say as conveying his meaning in respect of such fact.
A dying declaration may be attacked on the ground that any of the requisites for its admissibility are not present
and the same may be impeached in the same manner as the testimony of any other witness on the stand.
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REQUISITES:
(i) That declarant must be unavailable as a witness(dead or unable to testify);
(ii) That declaration must relateagainst the interests of the declarant;
(iii) That declaration must concern a fact cognizable by the declarant (had the opportunity to observe the
facts at the time he made the declaration);
(iv) That circumstances must render it improbable that a motive to falsify existed and believed such
declarations to be true.
Declarant was aware that the statement was contrary to his actual, real or apparent interest at the time he made
the declaration.
May be admissible against third persons (e.g. state, sureties, or even accused {victim admitted, in a kidnapping
case, that he was having an affair with the wife of the accused – showing motive of accused}).
DECLARATIONS ADMISSIONS
AGAINST
INTEREST
May be used
Made by a person even if the
who is unavailable declarant is alive
or unable to testify and available as
a witness
Need not be
against the
interest of the
declarant
Admissible only
May be admissible as to him but not
against 3rd persons against 3rd
persons
Must be made ante May be made
litem motam any time.
Declarant must Declarant need
have competent or not have
actual knowledge personal
of the matter stated knowledge of the
fact admitted
Unavailability includes: Exercise of a privilege, Refusal to testify,Claimed lack of memory (if false-contempt),
Death, physical or mental illness, absence(depositions if outside the country), incompetence(child)
Definition: includes relationship, family genealogy, birth, marriage, death, dates and places where these facts
occurred and names of the relatives
Reason: natural expressions of persons who must know the truth. Although hearsay, it is the best that the nature
of the case admits and because greater evil might arise from the rejection of such proof than from its admission.
Requisites:
1. declarant must be dead or unable to testify
2. pedigree is in issue or is relevant thereto
3. person whose pedigree is in question must be related to the declarant by birth or marriage
4. declaration must be made before the controversy (ante litem motam)
5. relationship btwn declarant and person whose pedigree is in question must be shown by
evidence other than such declaration
Nature of relation
➢ Declarant must be related to person whose pedigree is in issue; need not be related to the other person
said to be related to the subject person.
➢ Closely related relatives given more weight than distantly related
➢ Blood or marriage
➢ Must be legitimate unless legitimacy itself is in issue. EXC: 1) when the subject of the stmt is the
declarant’a own relationship to another person, 2) when the subject of the declaration is the illegitimate
relationship btwn 2 persons, and declarant is legitimately related to one of them.
➢ Declaration of husband’s relatives regarding pedigree of wife’s relatives or vv is inadmissible.
Time of declaration
➢ Ante litem motem; b4 commencement of the suit and b4 any controversy arises; not necessary that there
is litigation.
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5. relationship may be by blood or marriage
➢ relationship of declarant to family proved by direct or circumstantial evidence such as bearing of family
name, identical name, recognition or declaration by the family, mention in family conveyances and other
disposition of property.
Form of declaration
➢ When expressed in words, may be oral or written.
➢ If written, foundation proof must be offered authenticating the writing as that of relatives.
➢ Formal solemn manner or informal character
➢ It is proper to admit stmts and recitals appearing in books, papers, wills, deeds of conveyances, public or
quasi-public records, and registers where genealogical facts are recorded
➢ Essential that its identity and authenticity be first established
➢ If it appears in a family bible, it is not essential to prove that the written declaration was made by any
particular person.
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registrar is null and void; mere cert by the registrar w/o the signature of the father is not proof of voluntary
acknowledgment; birth cert must bear the signature under oath of the acknowledging parent/s.
➢ Matters of pedigree may be proved by reputation in the family, by the testimony of witnesses who have
knowledge of that repute and of the conduct of the members of the family; it is required that witness must
be a member of the family by affinity or consanguinity.
➢ Person may testify as to his age as he had learned it from his parents and relatives and his testimony in
such cases is an assertion of family tradition.
➢ Reason: necessity since tradition is often the sole method by which proof of matters of pedigree can be
obtained; family members likely the best acquainted with the nature of the ties of relationship.
Requisites:
1. there is controversy w/ respect to the pedigree of any member of a family
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2. reputation or tradition of the pedigree of the person existed previous to the controversy
3. witness testifying to the reputation or tradition is a member of the family of said person by affinity or
consanguinity.
➢ Testimonies of witnesses, offended party and grandfather as to offended party’s age is not hearsay evi
bec exception.
➢ Declarations of husband of a person connected w/ the family by birth or his wife is admissible; but,
declarations of father or sister of wife w/ respect to pedigree of husband’s family is incompetent.
➢ Reputation is the common report w/c others make about him; prevailing belief in the community as to the
existence of a certain fact.
➢ Reputation on the moral character of a person must be among people who have had an adequate
opportunity of observing the person’s conduct.
Reputation Rumor
Involves a general Loose talk w/c the
estimate by the community community has not had an
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as a whole opportunity to evaluate
and accept or reject
Implies definite and final Implies merely a report
formation of opinion by the that is not yet fully credited
community
Predicated upon a general Thought of as signifying a
trait of character particular act or
occurrence
Cannot be shown on an
inquiry as to character or
reputation unless so
common and prevalent
When admissible
1. matters of public interest more than 30 yrs old
2. matters of general interest more than 30 yrs old
3. respecting marriage or moral character
➢ Reason: because of the public interest in such stmts of reputation there is good reason to believe that
falsity can be exposed or corrected by testimony.
➢ Reputation admissible in defamation action damages and intemperance of employee bec reputation is an
ultimate fact in the case.
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➢ Ancient means old enough to exclude in theory declarants of the present generation.
➢ Until maps are shown to be ancient w/n the meaning of the rule, not admissible unless proved to be
correct.
➢ Ancient surveys made by competent authorities recorded or accepted as a public doc and produced from
proper custody is admissible; those not officially authorized or made for a public purpose is inadmissible.
➢ Ancient maps kept in public offices and are public records are admissible although not conclusive.
➢ Maps made by early explorers admissible but may be shown to be incorrect.
➢ Private boundary proved by common reputation only:
1. when it affects a public or general interest
2. more than 30 yrs old
3. ancient
4. formed in the community concerned
5. ante litem motam
➢ Form of reputation: oral or written
Character Reputation
Refers to the inherent Applies to the opinion w/c
qualities of the person others ay have formed and
rather than to any opinion expressed of his character
that may be formed or
expressed of him by
others what he really is
What the man is What he is supposed to be
in what people say
Depends on attributes Depends on attributes w/c
possessed others believe one to
possess
Signifies reality Merely what is accepted to
be reality at present.
Place of reputation
➢ Place where such person lives; not susceptible of exact geographical definition and simply describes the
area where the person is well-known and not necessarily synonymous to domicile or residence.
Qualifications of witness
➢ Must show that he is familiar w/ the esteem, or lack of it, in w/c the person is held in the community or the
social or business grp in w/c he moves.
➢ Expected that character witnesses would come from the same community, but residence in the same
place is not always essential.
➢ A person employed to investigate the character of a person cannot qualify to testify as to his reputation.
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Time to w/c reputation relates
➢ Sufficiently close to the time of the occurrence in question as to have probative value; no precise rule on
proximity of time; each case calls for considerable judicial discretion.
Common reputation existing previous to the controversy respecting marriage may be given in evidence.
➢ A formal marriage proven to be repute is not admissible to establish that there was no marriage.
Section 42. Part of the res gestae. - Statements made by a person while a startling occurrence is taking
place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given
in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the
issue, and giving it a legal significance, may be received as part ofres gestae.
Res Gestae
→ “transaxns” or “things done”
→ in common law, the circumstances which are automatic and undersigned incidents of the particular act in
issue, and which are admissible in evi when illustrative and explanatory of the act
→ [People v. Sanchez] – those exclamations and stmts made by either the participants, victims, or spectators to
a crime immediately before, during, or after its commission, when the circumstances are such that the stmts
were made as a spontaneous rxn or utterance inspired by the excitement of the occasion and there was no
opportunity for the declarant to deliberate and to fabricate a false stmt
→ Test of Admissibility: whether the act, declaration or exclamation is so intimately interwoven or connected
with the principal fact or event which it characterizes as to be regarded as part of the transaxn itself, and also
whether it clearly negatives any premeditation or purpose to manufacture testimony
Grounds of Admissibility
(1) Trustworthiness
→ The stmt is made instinctively, while the declarant’s mental power for deliberation in concocting matters
are controlled and stilled by the shocking influence of startling occurrence, so that all his utterances at the
time are the reflex product of immediate sensual impression unaided by retrospective mental axn and,
therefore, they are but pure emanations of the occurrence, the facts speaking thru the party not the party
talking abt the facts.
(2) Necessity
→Natural and spontaneous utterances are more convincing than the testimony of the same person on the
stand.
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→ admissibility of those stmts are predicated upon the common experience that utterances made under such
circumstances are devoid of self-interest, and the probability of falsehood is too remote as to be negligible
Requisites
(1) That the principal act be a startling occurrence;
(2) That the stmts were spontaneously made before the declarant had time to contrive or devise; and
(3) That the stmts made must concern the occurrence in question and its immediately attending circumstances
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corresponding taxes made by a person while occupying said land, are admissible as evi to show GF and
adverse possession on which the title of prescription may be founded.
▫ Declarant need not be physically on the land – Possession, in the eyes of the law, does not mean that a
man has to have his feet on every square meter of ground before it can be said that he is in possession of
it.
Requisites
(1) That the entrant made the entry in his professional capacity or in the performance of a duty
→ Bookkeeping entries made by the treas of a school on matter s not coming within his authority, are
inadmissible.
→ It is not essential that the entrant shall have been under an absolute duty to make entry. It has been held
to be sufficient “if the entry was the natural concomitant of the transaxn to which it relat es and usually
accompanies it.”
→ A duty selfimposed by the entrant has been held to satisfy the rule.
(2) That the entry was made in the ordinary course of bus or duty
→ Bus means any occupation.
→ Duty means either legal duty or any other kind of duty, as r eligious or contractual duties.
▫ Legal duty is one specially enjoined by law.
▫ religious duty: duty of a parish priest to enter in a book records of marriages and baptisms
▫ contractual duty: duty of persons employed under a contract to make the entrie s
→ [Consolidated Mines, Inc. v. CTA] – Books of accts are admissible as entries in the course of bus. The
phrase “entries in the ordinary course of bus or duty” means that the entries have been made regularly, as
is usual, in the mgt of trade or bus. Th ere must be regularity in the entries. The regularity of the entries
may be proved by the form in which they appear in the corresponding book.
→ [Aboitiz v. De Silva] – Par. 1 of this article <Art. 48 of the Code of Commerce..see p.730 of Herrera>
makes the entries in the books of merchants conclusive evi vs. themselves. But our SC had already ruled
that entries in books of acct of a merchant can only be regarded an admission vs. interest which may be
overcome by other competent evi, unless the adverse party has been misled to his prejudice.
(3) The entries must have been made at or near the time of the transaxn to which they relate
→ They must not be a recital of past transaxns, but a record of contemporaneous one—otherwise they are
merely self-serving declarations concerning past events.
→ Whether an entry made subsequent to the transaxn has been made within a sufficient time to ren der it
within the exception depends upon whether the time span bet the transaxn and the entry was so great as to
suggest a danger of inaccuracy by lapse of memory. The failure to make a timely record may suggest non-
regularity in the making of the stmt.
(4) The entrant must have been in a position to know the facts stated in the entries
→ Entry of Baptism
▫ While baptismal and marriage certificates may be considered public docus, they are evi only to prove
the admin of the sacraments on the dates therein specified – but not the veracity of the status or
declarations made therein wrt to his kinsfolk and/or citizenship. Such stmts, in order that their truth may
be admitted, must indispensably be shown by proof recognized by law.
→ Salonga <citing Chisolu v. Beaman Co., 160 NE 796>: The courts now generally recognize, even in the
absence of statute, entries made thru info from several persons are admitted on the sole testimony of one
who knows them to be the books of regular entries kept in that establishment provided the report from
which the entry is made should have been communicated under the sanction of a duty or oblig, and not
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casually or voluntarily.
(5) The entrant must be deceased or unable to testify
Proofs of Entries
→ Jones: While it is still the gen rule that the entries must, where possible, be authenticated by the entrant,
current decisions disclose a tendency to relax the rule because entries are frequently the composite act of
several persons, some or all of whom may not be available. In such cases, the courts of many jurisdxns have
permitted proof of the authenticity of the entries by a person under whose supervision or at whose direction they
were made, the regularity of the entries having been established.
Special Situations
(a) Hospital Records
→ Cleary: While hospitals are not commercial establishments, most courts now allow hospital records to be
admitted in evi on the same basis as other regularly kept commercial records. If the subj matter is relevant
to the diagnosis of a treatment, it is within the regular course of bus.
▫ The admission of the entry, however, is just for the purpose of proving the assertion of the facts
contained in the entries. The entry is not admissible to prove the truth of assertions made in it because
the declarant’s axn in relating the history was not a part of a bus routine of which he was a regular
participant. The declaration may be admissible under one of the exceptions to the hearsay rule.
(b) Computer Printouts
→ Cleary: The admissibility in evi of computer printouts is governed by the hearsay exception for regularly
kept records.
▫ Unlike typewritten or handwritten records, electronically processed data is not a visual counterpart of
the machine record and for the most part is not subj to visual inspxn until it ta kes the final form of a
printout. There must therefore be a trustworthy process of collecting and recording data. Mistakes may
result from mechanical defects or human element. The stages at which human error may enter in may
be at the programming and the data entry process.
(c) Bus. Records
→ Records, such as diaries, if of a purely personal nature not involved in declarant’s bus activities, do not
fall within the rule, but if kept for bus purposes are within the rule.
(d) Accident reports
→ [Palmer v. Hoffman (1943)] – An accident report may aff ect that bus in the sense that it affords info on
which the mgt may act. Unlike payrolls, accts receivable, accts payable, BOL and the like, theses reports
are calculated for use essentially in court, NOT in bus. Their primary use is in litigating, not in railroading.
➢ Reason: necessity and trustworthiness; necessity consists in the convenience and difficulty of requiring
the official’s attendance as a witness; so that public business be not deranged; trustworthiness consists in
the presumption of regularity of performance of official duty.
Requisites:
1. entries were made by a public officer or private person in the performance of his duty
2. performance of duty is especially enjoined by law
3. public officer or private person had sufficient knowledge of the facts stated by him, w/c he acquired
personally of through official information
Proof of marriage
➢ Church registers no longer public docs but they are admissible as evidence of the facts stated therein
without the necessity of calling the priest who prepared it; priests may keep registers and issue
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certificates therefrom.
➢ In the absence of marriage cert, oral evidence may be considered if not objected to.
Illustration of requisites
➢ Courts cannot take judicial notice of priests bec they are not public officers, thus, certs issued by them
must be authenticated as private writing. But, once cert is transmitted to the proper public officer, cert and
the certified copy becomes a public doc and may be admitted in evi w/o previous authentication.
➢ Person making the stmt need not be a public officer devoted in general to official business.
➢ “official information” means acquired by officers who prepared the reports, the persons who made the
stmts must have personal knowledge of the fact stated and the duty to give such stmts for the records.
➢ Not essential for the officer making the official stmt to have personal knowledge of the facts stated by him;
It is enough that he acquired such knowledge from persons whose duty it was to make a report provided
such persons have personal knowledge of the facts reported by them.
Proof of entries
➢ Records of public docs may be evidenced by a copy attested by the officer having legal custody of the
record or by his deputy; if record not kept in phil, there must be a cert from officer having custody such as
embassy official and authenticated by the record of his office.
➢ A certificate is a stmt in writing by an official that certain matters of fact are so or have happened; it is not
part of the public records of the issuing office.
➢ In the absence of statute to the contrary, the cert cannot just summarize or prephrase the entries; the
attestation must state in substance that it is a correct copy of the original or part thereof; attestation must
be under the official seal of the officer.
➢ Admissible w/o showing the unavailability of the person who made the entry.
➢ a police blotter is not a confession by a suspect; incomplete and refutable; summary report of the
occurrence of a matter.
Probative value
➢ Entries in public records made by a public officer in the performance of duty are prima facie evidence of
the facts stated therein.
➢ Entries must refer to facts, not opinions or conclusions.
➢ Admissible stmts are concerns matters required by the official to be stated; stmt on other matters not
admissible
➢ A death cert issued by the priest is only proof of death but not the cause of death; death cert admissible
to prove residence at time of death.
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stated therein, not the truth of such facts.
➢ Entries not necessarily entitled to full credit for it could be incomplete and inaccurate.
➢ Inaccuracies and omissions may be explained in trial.
Requisites:
1. stmts of matters of interest to persons engaged in an occupation
2. stmts must be contained in a list, register, periodical or other published compilation
3. compilation is published for use by persons engaged in that occupation
4. generally relied upon by them
Probative value
➢ Admissible as tending to prove the truth of any relevant matter so stated therein.
Law reports
➢ Rule applicable to official and unofficially published law reports, foreign and domestic.
➢ Admissible as official stmts bec these reports are prepared and published by official reporters appointed
for the purpose.
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market selling prices
Newspapers
➢ Admissible to prove the fact of publication of an article.
➢ News stories seldom based on first hand knowledge of reporter, thus inaccurate.
Section 46. Learned Treatises. – A published treatise, periodical or pamphlet on a subject of history, law,
science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes
judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise,
periodical or pamphlet is recognized in his profession or calling as expert in the subject.
➢ Books or treatises pertaining to medicine, surgery, mechanics are barred by hearsay rule since facts or
opinions only.
➢ Alabama Rule: standard medical treatises and works are admissible in so far as they are relevant to the
issues in the particular case.
Judicial notice
➢ But if the matter is not a proper subject of JN, it becomes necessary that the facts be established by
presenting in evidence, learned treatises on the subject matter.
➢ E.g Ballantyne Scale of Values – judicial notice bec widely known, a publication of general interest, played
and impt part in the contemporary political history of the country
➢ Tables of logarithms, tables of weights, measures and interest, tables and charts of braking distance and
reaction time of cars , standard mortality tables, almanacs, market reports and similar data are admissible
bec of their acceptance as scientific, standards by men in the particular business to w/c the information
relates.
➢ Stms in the tables are not necessarily binding upon the court esp if its adoption would mean manifest
injustice.
➢ Almanacs are admissible to prove the hour at w/c the sun or moon rises at a given time.
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Section 47. Testimony or deposition at a former proceeding. – The testimony or deposition of a witness
deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving
the same parties and subject matter, may be given in evidence against the adverse party who had the
opportunity to cross-examine him.
Requisites:
1. The testimony or the depositors of a witness deceased or unable to testify;
2. The testimony was given in a former case or proceeding, judicial or administrative;
3. Involving the same parties;
4. Relating to the same matter;
5. The adverse party having had the opportunity to cross-examine him.
➢ Upon compliance with the requirements designed to guarantee an adequate opportunity for x-
examination and after showing that the witness is unavailable, testimony previously given may be
received in the pending case in the form of a written transcript or an oral report of the testimony.
➢ The testimony may have been given during a deposition or at a trial either in a separate proceeding or in
an earlier hearing of the present case.
“unable to testify” - refers to physical not legal inability like death, sickness more or less permanently disabling
in character, witness was of advanced age or absent from the court’s jurisdiction, when witness cannot be found
after a diligent search or a public officer absent from jurisdiction on an official business but not if defendant has
procured the absence of the witness or to tampering with witnesses.
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on the prosecution to show that every effort has been made to produce the witness at the trial.
➢ Media of Proof. The prevailing practice and most convenient mode of proving former testimony is to read court
stenographic notes with proper authentication, which statutes allow the same, otherwise it may be used to
refresh his memory or as past recollection recorded. In any event, it must be shown to be complete and
accurate.
➢ Oral testimony of any person who was present at the trial and heard the witness testify may be used.
Opinion Rule
Expert Evidence – testimony of one possessing in regard to a particular subject or department of human activity
knowledge not usually acquired by other persons.
➢ Expert testimony is allowed when the subject of the inquiry is sufficiently beyond common experience that the
opinion of an expert would assist the trier of facts.
➢ The opinion of a witness on a matter requiring special knowledge, skill, experience or training may be received
in evidence only when he is shown to possess such competence. This includes oral testimony of witness
skilled in unwritten law.
➢ When characters are difficult to decipher or the language is not understood by the court, evidence of the
person skilled to interpret and experts thereon may be used in explaining certain writings.
➢ To warrant the use of expert testimony the subject of the inference must be so distinctly related to
some science, profession, business, or occupation as to be beyond the ken of laymen and that the
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witness must have sufficient knowledge, skill, experience or training to the particular field or calling
as to make it appear that his opinion or inference will probably aid the trier in the search for truth.
➢ Some cases say the judge has discretion in administering this rule while they may have general
knowledge, expert opinion may be utilized to aid the understanding of the fact in issue.
Qualifications of Experts
➢ It must be shown that the witness is really an expert; determination of his competency is a preliminary
question.
➢ An expert is a man of science; a person conversant with the subject-matter; a person of skill having particular
and special knowledge on the subject; a person possessed of science or skill respecting the subject matter;
one who has made the subject which he gives his opinion a matter of particular study, practice or observation.
➢ One may be an expert although his knowledge has been derived from the study of a subject and not from
actual experience or practice of the business or profession. However, to qualify an expert witness to express
an opinion as to specific phase of the general subject should extend to and comprehend that specific phase
and not limited to experience and understanding of the general subject of which the other is a specific part;
otherwise the opinion is of little weight.
➢ Courts take notice that certain pursuits are so intimately connected with others as to give those ff one unusual
opportunities and facilities for becoming acquainted with the other, hence a person may be an expert although
engaged in some other occupation or has abandoned the business to which the inquiry relates.
➢ Where the subject of the opinion requires professional skill, the mere fact that the person holds a public office
which deals with such matters does not of itself qualify him to give an expert opinion.
➢ Question as to competency or qualifications of an “expert” witness are to be determined preliminarily by the
court and will not be reversed on appeal unless shown to be based on error of law or abuse of judicial
discretion.
➢ The witness himself may be examined as to opportunities and means of knowledge of the subject, other
witnesses may testify regarding the preliminary question but not the opinion of the person himself regarding
his qualifications.
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2) Let him give his factual testimony, if he has knowledge of the facts;
3) Begin the hypothetical question by asking him to assume certain facts are true; (Premise of question)
4) Conclude the question by, 1st, asking the expert if he has opinion on a certain point assuming that these facts
are true, and 2ndly , asking him, after he has answered affirmatively, to give his opinion on the point;
5) After he has stated his opinion, ask him to give his reasons.
➢ A hypothetical question may be objected to on any grounds that demonstrate that it is improper under some
evidentiary principle, incomplete, vague, misleading and so on.
➢ The competence of a hypothetical question is whether it is a full and fair recital of all the essential evidence
disclosed by the record on the particular issue which is involved.
➢ The better practice is to keep the hypothetical question as brief as possible so as not to confuse the witness
and the court..
➢ It is the duty of the court to see that the hypothetical questions are properly framed, that they are responsive to
the issues in question, and that they assume only facts as one supported by some evidence in the record.
➢ Fairness is the ultimate test of a hypothetical question. The court shall reject a question which unfairly selects
parts of the facts proved and omits material facts. E.g. expert testimony was properly rejected when he was
made to answer a hypothetical question in relation to allegations of facts which have not been proven but are
disputed by the prosecution.
➢ Whatever liberality may be allowed in calling for the opinions of experts or other witnesses, they must not
usurp the province of the court and jury by drawing conclusions of law or determining the true facts upon which
the decision of the case depends.
➢ Direct testimony supporting the fact assumed is not required. It is sufficient if the fact is fairly inferable from the
circumstances proved.
➢ A hypothetical question should be so framed as to make a fair summary of the evidence on the subject most
favorable to the counsel’s case. It is not required that the question shall include the proofs or the theory of the
adversary, since this would require the party to assume the truth of that which he generally denies.
Cross-examination of Expert
➢ The rules governing the x-examination of witnesses generally are applicable to the x-examination of expert
witnesses with respect to the form and framing of the questions and the answers which are called for, and as
to the definiteness, certainty, requiring bare conclusions and the like.
➢ Great latitude is ordinarily allowed in the x-examination of such witnesses. Although on the direct examination,
the hypothetical questions must be based upon the facts which the evidence tends to prove, no such limit is
imposed upon x-examination; for the purpose of testing the accuracy and credibility of the expert, of the value
of his opinions, he may be interrogated as to pertinent hypothetical cases concerning which no evidence has
been given.
➢ The inquiry on x-examination should be allowed as wide a range may be reasonably necessary to test the skill
and reliability of the witness. The x-examiner is not confined to the scope of the evidence already given in the
case but is allowed to ask questions which would be wholly irrelevant except for the purpose of ascertaining
the value and credibility to be attached to his testimony.
➢ X-examination of an expert directed at establishing bias through financial interest is proper. X-examiner may
seek to establish financial interest in the case at hand by reason of remuneration for services, including
services performed which enable him to testify, continued employment by a party, or the fact of prior testimony
for the same party or the same attorney.
Certainty of Expert’s Opinion
➢ The opinion should at least be stated in terms of probability if not absolute certainty.
➢ Opinion testimony in terms of possibility, while admissible, is insufficient in itself to establish the point, and that
there must be corroborating evidence. The fact that the witness is asked to give his opinion regarding
possibility rather than probability or certainty, goes to the weight of his testimony, not its competency.
➢ An expert witness, in answering a hypothetical question, must accept as true every asserted fact stated
therein, but the judge cannot consider the answer of the expert unless they find that the evidence establishes
the truth of all such asserted facts. The witness’ answer must be so drawn as not to involve his own conclusion
from the whole evidence or a part thereof, or his opinion as to the weight of the evidence or the credibility of
the witnesses.
Weight of Expert’s Testimony
The probative value of expert testimony depends on the ff considerations – the comprehensiveness of the factual
information utilized by the expert, the extent to which the facts upon which he relies are believed by the trier of the
facts to be true, and the reasonableness of the conclusions drawn as they appear to the fact finder.
➢ Inherent infirmities in expert testimony appear when experts of equal credibility and skill draw directly opposite
conclusions from the same facts. In such a case, either the testimony can have little or no weight.
➢ Thus, WON the courts are bound by the testimony of the expert witness depends on the nature of the subject
of inquiry. Whether it comes within the general knowledge of judges or where the virtues of scientific inquiry
are acknowledged and common knowledge inadequate, expert opinion has high evidentiary value in
proportion to the need for it, and the party depending on the scientific proposition cannot succeed without
expert evidence.
➢ Although courts are not bound by the testimony of the expert, they may place whatever weight they chose in
accordance with the facts of the case. The relative weight and sufficiency of expert testimony may be
determined considering the ability and character of the witness, his actions upon the witness stand, the weight
and process or reasoning by which he has supported his opinion, his possible bias, the fact that he is a paid
witness, etc.
➢ The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion
of the trial court whose ruling is not reviewable in the absence of abuse of that discretion.
➢ The more learned the witness is, the more weight his opinion will deserve.
➢ The value of an opinion of a handwriting expert depends upon the assistance he may afford in pointing
distinguishing marks, characteristics and discrepancies in and between the specimens of writings which would
ordinarily escape detection by an untrained observer and not his mere statement WON the handwriting is
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genuine.
➢ The courts make a distinction between matters which are still at the stage of unproven dubious theories and
those generally accepted and recognized.
➢ It is improper to ask how the wounds are actually inflicted as this would be trespassing upon the province of
the judge. Instead, what kind of weapon must have been used or caused the same or whether it could have
been self-inflicted.
Criminalistics – the science of crime detection based upon the application of chemistry, physics, physiology,
psychology, and other sciences (broader in scope than forensic science)
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➢ The identity of a person about whom he has adequate knowledge; – witnesses who are shown to be
qualified by their opportunities for observation are permitted to testify as to the identity of persons,
handwritings or things. This may be based on voice identification provided it is made under conditions
insuring an impartial and objective opinion.
➢ E.g. the witness was able to identify the accused by the sound of his voice, despite the darkness, as it was
shown that she and the accused had known each other intimately since their youth and having live in the same
barrio for many years (US v. Manabat).
➢ A handwriting with which he has sufficient familiarity; - lay witnesses who are acquainted with the
characteristics of the handwriting of a person are permitted to describe a document as being that person’s
handwriting but only an expert may give conclusions from the comparison of samples of handwriting.
➢ The liberality which the courts have shown toward non-expert opinion on handwriting arises from the fact that
such testimony is for authentication purposes. When the writing is in dispute, the non-expert opinion, while
admissible, does not carry the weight of the expert opinion.
➢ The mental sanity of a person with whom he is sufficiently acquainted. – the ground for admission being
that it is often impossible for witnesses to adequately describe the axns, looks, or symptoms which properly
constitute the basis for forming a conclusion or opinion
➢ The general rule, requiring a witness to relate facts upon which his conclusion is based, held not applicable to
witnesses who have attested the execution of a will may be called to testify as to the competency or capacity
of the testator.
Instantaneous Conclusions of the Mind; “Shorthand Rendering of Facts”
➢ The impression or conclusion is the sum of what he saw, and in its final analysis, the offer is to prove a fact not
an opinion.
➢ When a subject is relevant to the matter in suit and the lay witness has had the means and opportunity of
acquiring knowledge of the subject through the use of his senses, and the opinion or impression is formed
from constituent facts and conditions wc are numerous or so complicated to be incapable of separation, he
may be permitted to testify to the impression or conclusion obtained by him from them, leaving it to x-
examination to develop the foundation for the impression or conclusion.
➢ There must have existed between the witness and the other an intimacy of such character and duration as to
clearly indicate that the witness’s testimony is one of some probative value.
Other opinions
➢ A person who has habitually observed the passage of railroad trains, automobiles or vehicles may give an
estimate of their rate of speed but not as to the distances within wc they can be stopped.
➢ A witness may give his opinion as to the comparative speeds of colliding vehicles although he is not able to
estimate the speed of either vehicle in kilometers per hour.
➢ The witness, before he is qualified to express an opinion as to value, must have some means of knowledge
as to the nature and the quality of the article in question. They must have the means of knowledge as to the
subject matter of their testimony than the jury might possess in common with all other persons.
Character Evidence
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Section 51. Character Evidence not generally admissible; Exceptions:
(a) In Criminal Cases:
(1) Accused may prove his good moral character which is pertinent to the moral trait involved in the offense
charge.
(2) The prosecution may not prove bad moral character of the accused unless in rebuttal when the latter
opens the issue by introducing evidence of his good moral character.
(3) As to the offended party, his good or bad moral character may be proved as long as it tends to establish
the probability or improbability of the offense charged.
Exceptions:
(i) Proof of the bad character of the victim in a murder case is not admissible if the crime was committed
through treachery and premeditation; and
(ii) In prosecution for rape, evidence of complainant’s past sexual conduct, opinion thereof or of his/her
reputation shall not be admitted unless, and only to the extent that the court finds that such evidence
is material and relevant to the case. R
( ape Shield, RA 8505 Sec. 6)
(b) In Civil Cases: The moral character of either party thereto CANNOT be proved UNLESS it is pertinent to the
issue of character involved in the case.
(c) As to witnesses, both criminal and civil: Evidence of his good moral character is not admissible until such
character has been impeached.(Sec. 14, Rule 132)
Character Evidence
➢ Evidence of the general character of the party or witnesses almost always has some probative value wc may
be slight and the potential for prejudice large.
➢ The instances where legal relevancy and admissibility are recognized are limited in scope. Otherwise, the trial
would be a popularity contest rather than a factual inquiry into the merits. After all,“the business of the court
is to try the case, and not the man; and a very bad man may have a very righteous cause.”
Character – the moral predisposition or habit or aggregate of ethical qualities, wc is believed to be attached to a
person, on the strength of the common opinion and report concerning him. A person’s fixed disposition or
tendency, as evidenced to others by his habits of life, through the manifestation of wc his general reputation for
the possession of a character, good or otherwise, is obtained. The opinion generally entertained of a person
derived from the common report of the people acquainted with him. The estimate attached to the individual or
thing in the community.
Character Reputation
What a man is What he is supposed to be in
what people say he is
Depends on Depends on attributes w/c
attributes others believe one to
possessed possess
Signifies reality Signifies merely what is
accepted to be reality at
present
One of the means in proving
character
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some other purposes.
➢ The prosecution is generally forbidden to initiate evidence of bad character of the defendant but when the
table is turned and the latter offer evidence of his good character to imply that he is unlikely to commit the
crime, the general rue against propensity evidence is not applied.
Rape Cases
➢ While the character of the woman is not ordinarily in issue, evidence of previous unchastity may be
circumstantially relevant and admissible on the question of her consent, where absence of consent is an
essential element of the crime or when a certain type of feminine character predisposes the imaginary or false
charges of this sort and is psychologically inseparable from the tendency to make advances in similar
offenses against chastity. However, the same cannot be used as a defense to the charge of rape where it is
proved that the illicit relation complained of was committed with force and violence.
➢ In the 1970’s, however, “rape shield” laws were enacted, which barred the reputation and opinion evidence of
the victim’s past sexual conduct but permits evidence of specific incidents if certain substantive and
procedural requirements are met.
➢ If the evidence pertains to past sexual behavior of the victim with the accused who claims consent, it may be
admitted to prove or disprove consent. If the evidence involves acts of victim with other individuals, the same
may be used to prove that someone else was “the source of the semen or injury”. Finally, in exceptional
cases, the defendant may have a right under the due process or confrontation clauses, to introduce certain
evidence of the victim’s past sexual conduct.
RULE 131
BURDEN OF PROOF and PRESUMPTIONS
Sec. 1. Burden of proof. – Burden of proof is the duty of a party to present evidence on the facts in issue
necessary to establish his claim or defense by the amount of evidence required by law.
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Def’ns
→ Proof – the establishment of a requisite degree of belief in the mind of the trier of fact as to the facts in issue
→ Burden of Proof – a term used loosely to refer to two separate concepts:
(a) A party’s oblig to produce the degree of evi req’d to prove the facts which he relies – the burden of
persuading the trier of fact that the burdened partysi entitled to prevail;
(b) A party’s oblig of introducing or going forward with the evi – sometimes called the burden of evi or of
“going forward”
Basis
→ [Martin v. CA] – It is based on the maxim “El incumbit probatio qui dicit, no qui negat” which means “He who
asserts, not he who denies, must prove.”
Specific Applications
(a) In an axn for tort , the burden is on the plaintiff, in the first instance to prove the defendant’s wrongful
conduct, as alleged by him, his own injury proximately caused thereby, and the damages suffered by him
therefrom; and this burden rests on him throughout the trial subj to the shifting of the burden under
applicable rules or statutes relating to presumptions.
(b) Causation is rarely established as a matter of law but is an issue of fact; and the burden is on the party
asserting the causal connection to establish a “reasonable basis for the conclusion that it was more likely
than not that the conduct of the defendant was a substantial factor in the result.”
(c) Wrt to conditional contracts , the plaintiff must assume the burden of proof as to the happening of the
condition upon which liab of the other party to the contract eventuates.
(d) Where title to real prop is claimed by reason of adverse possession, the claimant has the burden of proving
the essential facts of continuous adverse possession for the req’d pd. The burden rests on the state where
is has no legal title but relies on a claim of adverse possession.
(e) Ordinarily, the gen. rule applies in the case ofmotion during the progress of an axn. Upon the moving party
rests the burden of sustaining the grounds of his motion; and the other party is put to the necessity of
prodxn evi to meet and overweigh or counterbalance that of the moving party.
▫ In a petition for bail by an accused charged with a capital offense, the burden of proving that the evi of
guilt is strong to warrant a denial of the motion rests on the prosecution.
(f) In labor cases, the burden of proving that the Ees have been dismissedfor cause is on the Ers.
(g) Affirmative defenses – Where the defendant admits the making of the contract in suit but sets up the
defense that it is w/in the Statute of Frauds, the plaintiff is relieved of the burden of proving the contract.
(h) Insurance Cases
▫ In an axn to recover on a policy, the plaintiff has the true burden of proving every fact that may be
essential to enforcement of the insurer’s liab w/in the terms of the policy.
▫ An insurer, who sets up an affirmative defense to an axn on a policy, there by expressly or impliedly
admitting the allegations of the plaintiff’s pleading, has the burden of proof to establish the defense as
alleged.
(i) The gen. rule that a plaintiff who allegesnegligence as the essence of his cause of axn vs. a defendant has
the burden of proving negligence is applicable to all axns that are based on negligence, regardless of the
relationship bet the parties or the instrumentality involved.
▫ applies in suits vs. physicians and other professional men for malpractice
(j) GF is always presumed, and upon him who alleges BF on the part of the possessor rests the burden of
proof.
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Matters Which Need NOT be Proved
(a) Immaterial allegations
(b) Facts admitted or not denied provided they have been sufficiently alleged
(c) Agreed and admitted facts
(d) Facts subj to judicial notice
(e) Facts legally presumed
PRESUMPTIONS
Def’n:
→ an interference as to the existence of a fact not actually known, arising from its usual connection with another
which is known
→ [Martin v. CA] – a conjecture based on past experience as to what cours e human affairs ordinarily take
Nature of Presumption
→ Ordinarily, when a fact is presumed, it implies that the party in whose favor the presumption exists does not
have to introduce evi to establish that fact, and in any litigation where that fact is in issue, the party denying it
must bear the burden of proof to overthrow the presumption.
Classes of Presumption
(a) Presumption Juris – a dedxn which the law expressly directs to be made from particular facts
▫ When the basic fact is established in an axn, the existence of the presumed fact must be assumed.
▫ Classes:
(1) Rebuttable or disputable – may be accepted and acted on when there is no other evi to uphold the
contention for which it stands, or one which may be overcome by other evi
(2) Conlusive or absolute (Sec. 2, Rule 131)
(b) Presumption Hominis (inference) – a dedxn which reason draws from the facts proved without an express
direction to that effect
→ Inference vs. Presumption
▫ While presumption is based upon the probative strength of the basic evidentiary fa ct, the presumption is
not the fact itself but the legal consequence attached to it. Where the legal consequence is removed, there
is no more presumption but a mere inference, a matter of reasoning which is usually called a presumption
of fact.
Martin v. CA
→ As the employment relationship bet the owner of the automobile and Martin (the driver) could not be
presumed, it was necessary for the plaintiff to establish it by evi. Plaintiff had the burden of proof. Failure to do
this was fatal to his axn. It was enough for defendant to deny the alleged employment relationship, without
more, for he was not obligated to prove this averment.
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▫ Contra Presumption of Agency <The SC may have overlooked the wellfounded principle that when the
plaintiff has been injured by the negligent operation of a vehicle, then upon proof of further facts (such as
ownership of the vehicle) he may have the benefit of presumptions in moving vs. the driving defendant. The
plaintiff seeking to prove agency may secure the advantage of the presumption that the person driving the
vehicle was doing so in the scope of his employment and in the course of bus of the defendant, merely by
proving that the defendant was the owner. Reasons: probability, fairness in the light of the defendant’s s
uperior access to the evi, and the social policy of promoting safety by widening the responsibility in
borderline cases of owners for injuries caused by their vehicles.>
Presumptions as Evi
→ Presumptions like JN and admissions relieve the proponent from presenting evi on the facts that he alleged
and such facts are thereby considered as duly proved.
→ Bursting Bubble Theory or the Thayerian Rule – when the opposing evi comes into the case, the
presumption, having served its purpose, is NO longer operative and the issue is determined on the evi just as
though no presumption had ever existed
▫ Deviations From the Theory – where the presumptions are based upon particularly strong and visible
policies, such as the presumption of legitimacy arising from proof that a child was born during the course of
the marriage, the presumption of agency or consent arising from ownership of a vehicle
Conflicting Presumptions
→ Presumption of Innocence Prevails
▫ Generally speaking, no legal presumption is so highly favored as that of innocence; ordinarily most other
presumptions yield to it in case of conflict.
→ Presumption of Continuance of Life
▫ In order that the presumption of the continuance of life may be overcome when the validity of a sec ond
marriage is involved, reliance upon a presumption of death of the former spouse of seven yrs. absence is
unnecessary. But it does not follow that the presumption of innocence will prevail in all cases where the
presumption of the continuance of life would impute crime.
→ Presumption of Dissolution of Former Marriage
▫ When a person marries twice, the second marriage is presumed valid and the former one is presumed to
have been dissolved by death or <divorce>. However, the presumption must yield to circumstances.
From Where May Presumption Arise
(a) Judicial knowledge
(b) Establishment of basic facts
▫ basic fact that a person has been missing for at least seven yrs. – presumed fact of death arises
(c) By the pleadings, by stipulation or by evi which compels a finding of the basic fa
ct
Elements of Laches
(1) Conduct on the part of defendant, or of one whom he claims, giving rise to the situation of which complaint
is made and complainant seeks a remedy;
(2) Delay in asserting complainant’s rights, having knowledge of defendant’s conduct and opportunity to
institute a suit;
(3) Lack of knowledge on part of defendant that complainant would assert his rights; and
(4) Injury or prejudice to defendant in the event relief is granted to complaint or suit is not barred.
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→ Laches is applicable if knowledge may be imputed to plaintiff by reason of the existence of opportunity to
acquire such knowledge. Since, however, estoppel is founded on ignorance, and everyone is conclusively
presumed to know the law, want of knowledgeof the law cannot be the basis of estoppel.
Estoppel by Deed
→ a bar which precludes a party to a deed and his privies from asserting as vs. the other and his privies, any
right or title in derogation of the deed, or from denying the truth of any mtl fac
t asserted in it
The absentee shall not be considered dead for the purpose of opening his succession till after an
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absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall
be sufficient in order that his succession may be opened.
The following shall be considered dead for all purposes including the division of the estate among
the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who
has not been heard of for four years since the loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part in armed hostilities, and has been
missing for four years;
(3) A person who has been in danger of death under other circumstances and whose
existence has not been known for four years;
(4) If a married person has been absent for four consecutive years, the spouse present
may contract a subsequent marriage if he or she has well-founded belief that the absent
spouse is already death. In case of disappearance, where there is a danger of death the
circumstances hereinabove provided, an absence of only two years shall be sufficient for
the purpose of contracting a subsequent marriage. However, in any case, before marrying
again, the spouse present must institute a summary proceedings as provided in the
Family Code and in the rules for declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.
(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the
law or fact;
(y) That things have happened according to the ordinary course of nature and ordinary nature
habits of life;
(z) That persons acting as copartners have entered into a contract of copartneship;
(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful
contract of marriage;
(bb) That property acquired by a man and a woman who are capacitated to marry each other and
who live exclusively with each other as husband and wife without the benefit of marriage or under
void marriage, has been obtained by their joint efforts, work or industry.
(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each
other and who have acquire properly through their actual joint contribution of money, property or
industry, such contributions and their corresponding shares including joint deposits of money
and evidences of credit are equal.
(dd) That if the marriage is terminated and the mother contracted another marriage within three
hundred days after such termination of the former marriage, these rules shall govern in the
absence of proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the subsequent
marriage is considered to have been conceived during such marriage, even though it be
born within the three hundred days after the termination of the former marriage.
(2) A child born after one hundred eighty days following the celebration of the subsequent
marriage is considered to have been conceived during such marriage, even though it be
born within the three hundred days after the termination of the former marriage.
(ee) That a thing once proved to exist continues as long as is usual with things of the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or published by public authority,
was so printed or published;
(hh) That a printed or published book, purporting contain reports of cases adjudged in tribunals of
the country where the book is published, contains correct reports of such cases;
(ii) That a trustee or other person whose duty it was to convey real property to a particular person
has actually conveyed it to him when such presumption is necessary to perfect the title of such
person or his successor in interest;
(jj) That except for purposes of succession, when two persons perish in the same calamity, such
as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular
circumstances from which it can be inferred, the survivorship is determined from the probabilities
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resulting from the strength and the age of the sexes, according to the following rules:
1. If both were under the age of fifteen years, the older is deemed to have survived;
2. If both were above the age sixty, the younger is deemed to have survived;
3. If one is under fifteen and the other above sixty, the former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to
have survived, if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those ages, the latter is
deemed to have survived.
(kk) That if there is a doubt, as between two or more persons who are called to succeed each
other, as to which of them died first, whoever alleges the death of one prior to the other, shall
prove the same; in the absence of proof, they shall be considered to have died at the same time.
Presumption of Innocence
→ applies in both civil and crim cases
In Crim Cases
→ Basis
▫ founded on the principle of justice and is intended not to protect the guilty but to prevent, as far as human
agencies can, the conviction of an innocent person
▫ based upon the wellrecognized fact which the courts judicially notice that men generally obey the rules of
the crim law, and upon the impossibility of obtaining, and the consequent injustice of requiring, affirmative
proof from the accused that he has done so in this particular case
▫ “Injuria non praesumitur” (a wrong is not presumed).
▫ “Ipsa non praesumitur” (odious things are not presumed).
→ Purpose: an absolute protection vs. conviction and punishment, except either, first, on confession in open
court; or second, on proof which places the guilt beyond any reasonable doubt
▫ It has been held that the presumption of innocence disappears after conviction and the appellate court
then will presume the accused guilty.
Distinguished From “Reasonable Doubt” and “Burden of Proof”
→ The presumption established the necessity for the prosecution to take the laboring of and produce affirmative
evi of guilt. The reasonable doubt rule defines the quality of proof req’d.
→ The former refers to a substantive right in the nature of evi and is a leg al inference growing out of the fact
that persons generally are not criminals. The latter is that engendered by an investigation of the whole proof
and inability, after such investigation, to let the mind rest easy upon the certainty of guilt.
→ The presu mption is a rule of substantive law existing before any evi is offered and accompanying the
accused throughout the trial down to the moment of his conviction. But the burden of proof, designed merely as
a rule of procedure, confers only a temporary benefit upon him. Under the latter, the prosecution is compelled
in the first instance to make out a prima facie case proving the essential facts embraced in the crim transaxn
alleged.
Every Circumstance Favoring the Innocence of the Accused Should Be Taken Int o Acct
→ [People v. Dramayo] – In a crim proceeding, it is req’d that every circumstance favoring innocence be duly
taken into acct. The proof vs. him must survive the test of reason; the strongest suspicion must not be
permitted to sway judgment. The co nscience must be satisfied that on the defendant could be laid the
responsibility for the offense charged; that not only did he perpetrate the act but that it amted to a crime.
Probability of Innocence Prevails Over That of Guilt
The prosecution must rely on the strength of its own evi, not on the weakness of the defense.
In Civil Cases
→ Jones: While it is the universal rule that, in prosecution for crime, the commission of the crime must be
proved beyond reasonable doubt, the authorities are in conflict on the question as whether the same rule
obtains in civil axns.
▫ England – sustained by the weight of authority
▫ U.S. – preponderance of evi is sufficient to establish the commission of a crime in a civil axn; but
authorities may be found in which higher degree of proof of guilt has been req’d
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Presumptions Conflicting With Presumptionof Innocence
→ In this jurisdxn, a presumption de jure of a woman’s virginity in a seduction case arises whenever it is shown
that she is over 12 but under 18 years old, single and of good reputation an continuous until overthrown by
proof to the contrary.
→ The sanity of a person is presumed unless his state of insanity is proved in which case, the burden of proof is
then shifted to one who asserts that the act was done while the person was insane.
→ In civil cases, the presumption of validity of marriage has been held to be superior to the presumption of
continuance of an invalidating state of insanity.
Presumption of Innocence Includes –
(a) Presumption of morality and decency; marriage; legitimacy and chastity
(b) Presumption of dissolution of former marriage
(c) Legitimacy
(d) Chastity
(e) Presumption of good reputation
(f) Presumption of GF, fair dealing, and honesty
Care: The Law Presumes That a Person Takes Ordinary Care of His Concerns
→ It is presumed that a man would not sell his land for less than 1/7 part of its value and less than ½ of its rent
for he is presumed to take ordinary care of his concerns.
→ Men may do foolish things, make ridiculous contracts, use miserable judgment, and lose money by them –
indeed, all they have in the world; but NOT for that alone can the law intervene and restore. There must be, in
add’n, a violation of law , the commission of what the law knows as an axnable wrong , before the courts are
authorized to lay hold of the situation and remedy it.
→ Art. 1332, CC: When one of the parties is unable to read, or if the contract is in a lang not u
nderstood by him,
and mistake or fraud is alleged, the person enforcing the contract must show that the terms thereof have been
fully explained to the former.
▫ Where the insurer sought to avoid payment of a life insurance policy on the ground that the ins ured
concealed her state of health, said insurer is not obliged to show that the English terms of the contract were
read and explained to the insured, a Chinese, since that duty devolves on the beneficiaries, who would like
to enforce the agreement.
Presumption of regularity
➢ Person in public office regularly appointed or elected. REASON: cause great inconvenience to public if
strict proof is required of election and appointment.
➢ Omnia praesumuntur rite esse acta donec probetur in contrarium (all things are presumed to have been
done regularly and with due formality until the contrary is proved)
➢ Official duty regularly performed, w/n the scope of authority, in compliance w/ law, in good faith, and in the
exercise of sound judgment, in the absence of evidence to the contrary; presumption applies in criminal
100 | Page
and civil cases. REASON: innocence is to be presumed; official oath will not be violated.
➢ Presumption rebuttable; not supply proof of a substantive fact; no probative force and not evidence to be
weighed in the scale against evidence rebutting it.
➢ Presumption applies to every class of officers, sheriffs and similar officers, acts of attys, notaries, and
quasi-public officers.
101 | Page
tribunals performing quasi-judicial functions, artificial persons, business enterprises, and private
transactions.
➢ Non-compliance or non-performance of law or duty will not be presumed; presumption is that law has been
obeyed, similar to presumption of innocence.
Negotiable instruments
➢ Every NI is deemed prima facie to have been issued for a valuable consideration and every person whose
signature appears thereon is a party for value.
➢ In NI, no recital of consideration in the instrument is needed to raise presumption.
➢ Presumption that an indorsement made w/o date was made b4 maturity; in absence of contrary,
indorsement presumed to have been made at the time of execution and at the place where the instrument
is dated; rule not apply to non-negotiable papers.
➢ If time is material, maker should show that it was made after maturity, and thereby destroy the legal
presumption.
Written instruments
➢ If regular on its face, presumed to have been properly executed and have all essential formalities to their
validity.
➢ Presumption does not apply where a deed is offered to support an action one not privy to it; delivery on the
date of the writing; there’s a motive for collusion or fraud.
Presumption of Death
➢ Ordinary: after 7 yrs of unknown absence, presumed dead for all purposes, except for those of
succession; 10 yrs b4 open succession; 5 yrs if age 75.
➢ Extraordinary: presumed dead for all purposes
1. person on board a vessel lost during a sea voyage, or an airplane w/c is missing, who has not been
102 | Page
heard of for 4 yrs;
2. person in the armed forces who has taken part in war and has been missing for 4 yrs;
3. person in danger of death under other circumstances and his existence has not been known for 4
yrs.
➢ In sea voyage, it should be lost, unaccounted, fate unknown, cannot be located.
➢ If conditions not present, rule on preponderance of evidence applies to establish the fact of death.
➢ Sec 4 Rule 73: applicability of rule in spec pro – for purposes of settlement proceedings, person presumed
dead if absent and unheard from for the pds in the NCC. If such person proves to be alive, he is entitled to
the balance of the estate after debt payments recoverable by motion in the same proceeding.
➢ Can be invoked in an action or spec pro, but no independent action or spec pro for presumption of death.
➢ Presumption of death must yield to preponderance of evidence of death, w/o waiting anymore for the
period to expire.
child born w/n the same 300 days; 3) child born b4 180 days after solemnization ofst1marriage.
➢ Child to be child of the 2 nd marriage: 1) mother remarried w/n 300 days; 2) child born w/n the same 300
days; 3) child born after 180 days after solemnization of nd
2 marriage.
➢ Legitimate children: 1) if conceived and born during marriage; 2) if conceived b4 marriage but born during
marriage; 3) if conceived during marriage but born after.
➢ Artificial insemination is the impregnation of a female w/ semen from a male w/o sexual intercourse.
➢ Presumption of sexual intercourse; unless, shown beyond reasonable doubt that there is physically
impossibility of access by the husband to the wife during conception.
➢ Scientific test like human leucocyte antigen (HLA) can prove non-paternity or legitimacy, but rules do not
yet take them into account.
➢ Issue of legitimacy cannot be attacked collaterally. This action can only be brought by the husband and in
exceptional circumstances, his heirs and w/n the pd fixed by the FC.
➢ Child legitimate although the mother may have declared against its legitimacy or sentenced as an
adulteress.
Rules on survivorship
➢ If 2 persons perish in the same calamity such as wreck, battle, conflagration, and not shown who died first
and no circumstances to infer, survivorship presumed from the probabilities resulting from strength and
age of the sexes, accdng to the ff rules:
1. if both under 15 age, the older is presumed the survivor;
2. if both above 60 age, younger is presumed the survivor;
3. if one under 15 and other above 60, former is the survivor;
4. if both over 15 and under 60, and sexes diff, male is the survivor; if sexes the same, then the older is the
survivor;
5. if one under 15 or over 60, and other btwn those ages, latter is the survivor.
➢ To invoke this presumption, there should be no other facts w/c might prove survivorship, either direct or
indirect, substantial or inferential bec if there are such facts, rule on preponderance of evidence governs.
➢ Illegitimate children:
1. children born of couples not legally married or common law marriages
2. children born of incestuous marriage
3. children born of bigamous marriages
4. children born of adulterous relations btwn the parents
5. children born of marriages void for reasons of public policy
6. children born of couples below 18 whether they are married (w/c marriage is void) or not
7. children of other void marriages under art 35
➢ Legitimate if parties believed in good faith that solemnizing officer had authority, children of marriages void
under art 36 and 53.
RULE 132
PRESENTATION of EVIDENCE
A. Examination of witness
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Section 1. Exam to be done in open court . The examination of witnesses presented in a trial or hearing
shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak,
or the questions calls for a different mode of answer, the answers of the witness shall be given orally.
Presentation of Evi
→ Any party wishing to introduce any evi should first have the thing marked by the clerk for ID as an exhibit for
the party. Having done so, the proponent should “lay the foundation” for its introdxn as an exhibit by having it
appropriately identified orauthenticated by the testimony of a witness who is qualified to do so.
→ Next, the proposed exhibit should be submitted to the opposing atty for his inspxn, at least upon his request,
and then the proponent should present it to the judge – “Plaintiff offers this docu marked Plaintiff’s Exhibit No. 2
for ID, as Plaintiff’s Exhibit No. 2.” At this pt, the opponent may make his objxn to its receipt in evi, and the
judge will make his ruling upon the objxn.
Oath or Affirmation
→ It is generally held that where a witness testifies w/o having been sworn, the judgment will be set aside if the
error is not discovered until after judgment.
→ If a party fails to obj to the taking of the testimony of a witness w/o the admin of an oath, he will be deemed
to have waived his objxn.
→ Under Sec. 1 of Rule 71, refusal to be sworn or to ans as a witness constitutesdirect contempt.
Section 2. Proceedings to be recorded . - The entire proceedings of a trial or hearing, including the
questions propounded to a witness and his answers thereto, thestatements made by the judge or any of
the parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or
stenotype or by other means of recording found suitable by the court.
A transcript of the record of the proceedings made by the official stenographer, stenotypist or
recorder and certified as correct by him shall be deemed prima facie a correct statement of such
proceedings.
Sec. 3. Rights and obligs of a witness. - A witness must answer questions, although his answer may tend
to establish a claim against him. However, it is the right of a witness:
(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting
demeanor;
(2) Not to be detained longer than the interests of justice require;
(3) Not to be examined except only as to matters pertinent to the issue;
(4) Not to give an answer which will tend to subject him to a penalty for an offense unless
otherwise provided by law; or
(5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at
issue or to a fact from which the fact in issue would be presumed. But a witness must answer to
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the fact of his previous final conviction for an offense.
Scope of Privilege
(a) Only prohibits incriminatory stsmts NOT obj evi
→ simply a prohibition vs. legal process to extract from the accused’s own lips, vs. his will, admiss ion of his
guilt
→ admission of the wallet of the accused together with the contents does NOT violate such right
(b) Only prohibits testimonial compulsion
→ testimonial compulsion – if the axn is sought as an indication of the subj’s intentional expression of his
knowledge or belief concerning factual matters
→ compulsion – witness is req’d to ans over his valid claim of the privilege
→ does NOT include the exam of his body as evi when it may be mtl
(c) Observing physical char – permissible
→ fingerprinting; photographing; measurements; to assume a stance; to make a particular gesture; to write
or speak for ID
(d) Compulsory blood analysis – not violative of the privilege
(e) Flight is not testimonial
→ not an intentional communication by the accused of the contents of his thoughts
(f) Breath test for blood alcohol
→ [South Dakota v. Neville] – A suspect’s refusal to participate in such test was like flight and thus
noncommunicative conduct rather than testimonial communication.
▫ Such refusal is not an act coerced by the officer and trial use of evi of that refusal is not barred by the
privilege.
(g) Instances when expressly articulating a desire not to incriminate one’s self is deemed inappropriate
▫ person’s ability to make a free choice is impaired
(1) During custodial law enforcement interrogation
(2) Where a person is confronted with such significant penalties for invoking the privilege that his failure to
so cannot be reasonably regarded as a free choice
(3) <Cases in which federal tax req’ts imposed on gamblers require potentially incriminating filings with the
gov’t>
(h) Privilege extends to prodxn of inculpatory docus
→ McCormick: By producing an item in response to a subpoena, a person may make one or more of
several explicit or implicit representations: (1) they believe that items described by the subpoena exist; (2)
that such items are w/in their possession or control; (3) that the items produced are w/in the description of
the subpoena.
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▫ testimonial communications, although made by conduct
(i) Extends to any evi “communicative in nature” acq’d under circumstances of duress
→ forced reenactment
→ Compelling the accused to write and give specimens of his handwriting, in order to determine whether it
was he who wrote alleged falsified docus, is equiv to compelling him to perform testimonial act.
(j) Includes not only the right to remain silent in the face of incriminatory questions but also a right to suffer no
penalty for such silence
Privilege May Be Invoked in Any Civil, Crim or Administrative Proceeding and in Congressional
Investigations
→ accorded to every person who gives evi, whether voluntarily or under compulsion of subpoena
→ An accused may remain silent e ven on arraignment but in a civil (or administrative) case the adverse party
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may be called as a hostile witness. <See, however, Sec. 6, Rule 25 on effect of failure to remove written
interrogatories>
Extent of Waiver
→ The accused, by offering himself as a witness to disprove the charge waives his pri vilege as to all relevant
facts connected with the offense, except those facts that merely affect his credibility.
→ He may decline to ans any question which might implicate him for a diff. offense.
→ If the witness discloses part of a transaxn in which he was criminally concerned, he cannot hold back the
rest. His waiver is not partial.
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Sec. 4. Order in the exam of an individual witness . - The order in which the individual witness may be
examined is as follows;
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent.
Sec. 5. Direct exam. - Direct examination is the examination-in-chief of a witness by the party presenting
him on the facts relevant to the issue.
Form of Questioning
→ In General – ltd to questions calling for specific responsesby witnesses
→ Testimony in narrative form
▫ not permitted by many courts bec it is too difficult to determine whether specific portions of the testimony
might be objxnable before uttered – remedy of adverse party is a motion to strike
▫ If a witness is to be examined by the narrative method, counsel must plan to be ready to interrupt with
specific questions, if necessary, or to supplement the narrative by specific questions which bring out omitted
facts.
▫ When Allowed – (a) witness is her own counsel; (b) when allowed by the trial court
Limitations
(a) Questions calling for conclusions or opinions
→ [Michelson v. U.S] – Unless they are w/in the legitimate realm of opinion testimony, whether of lay or
expert witnesses, the questions should not call for the conclusions of the witness or embody propositions of
law.
→ “Why did the defendant strike the plaintiff?” – NOT allowed bec it calls for a conclusion as to defendant’s
state of mind
(b) Repetitive questions
→ objxn – question has been “asked and answered”
→ Repetitive questions may be more readily permitted in crossexam.
→ There is, however, no prohibitory rule which prevents asking a question already answered in another
form in order to make certain that the question and the ans are understood.
(c) Compound questions
→ A compound question which embraces more than one inquiry to be answered is not only awkward and
ambiguous but improper, and a question should be rejected which, along with proper elements, embraces
one which is improper.
(d) Erroneous Assumption
→ It is NOT permissible on direct exam to put to a witness a question which assumes erroneously that a mtl
fact in issue has been proved or that the witness has given certain testimony.
Section 6. Cross-examination; its purpose and extent. - Upon the termination of the direct examination,
the witness may be cross-examined by the adverse party as to many matters stated in the direct
examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and
truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing
upon the issue.
Importance
➢ Inviolable in civil cases and right of the accused in crim case.
➢ It is the most reliable and effective way known of testing the credibility and accuracy of testimony.
➢ Essential element of due process; a matter of absolute right of the highest value.
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X-examination must be complete
➢ Oral testimony is taken into account only when witness was wholly x-examined by adverse party or the
right was lost thru the fault of adverse party.
➢ If x-examination cannot be done or completed due to causes attributed to offeror of the witness, the
uncompleted testimony is incompetent.
➢ If no responsibility ascribed to offeror of witness, then direct testimony can be admitted.
Extent of right
➢ The right is superior to technical rules of evidence.
Purpose of confrontation
➢ Right of confrontation is a personal privilege w/c can be waived by accused expressly or impliedly by
conduct amtng to renunciation of the right.
➢ Chief purpose is to secure the opportunity for x-examination.
➢ Minor purpose is that the tribunal may observe the deportment and appearance of the witness; this can be
dispensed with.
➢ Savory Luncheonette case: if party had the opportunity to x-examine but failed to avail of it, he forfeits
such right and testimony in direct examination will be received.
➢ Partial x-examination sufficient.
Scope
➢ Liberality of the courts; allows any matter related to the subject testified to on direct.
➢ X-examine proper to rebut matters actually testified to on direct and any inference or deductions w/c may
be drawn therefrom.
➢ English rule – covers all matters material to the issue, examination not only confined to matters inquired
about in the direct examination; to be conducive, systematic and orderly trial of causes.
➢ American rule – restricted to facts and circumstances connected w/ the matters state in the direct
examination of the witness.
➢ No x-examination if testimony is given in direct evi but subsequently stricken out; testimony not testified to
by the witness unless he himself testified as to it; as to evi not offered in evi;
➢ E.g. if direct examination of payee of note confined to question of genuineness of signature, adverse party
cannot x-examine as to consideration.
➢ In consolidated axns, all parties to the several axns are entitled to x-examine any witness called upon by
any other party.
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Method, form and length
➢ Permitted to employ any type of questioning
➢ Leading questions are permitted.
➢ Improper questioning:
1. Misleading - ? that cannot be answered w/o making an unintended admission. E.g. Do u still beat your
wife?
2. Compound - ? that requires a single answer to more than 1 ?; E.g. Did u see and hear him?
3. Argumentative – a leading ? that also reflects examiner’s interpretation of the facts; E.g. why were u
driving so recklessly?
4. Assuming facts not in evi - ? that assumes that a disputed fact is true although it has not yet been
established in the case; E.g. After he ran the stop sign he honked his horn, didn’t he?
5. Conclusionary - ? that calls for an opinion or conclusion that the witness is not qualified or permitted to
make; E.g. Did your wife understand this also?
6. Cumulative - ? that has already been asked and answered; more repetition allowed on cross than on
direct, but if cross is not getting anywhere, judge may disallow the ?
7. Harrassing/Embarrassing – judge has discretion to disallow cross that is unduly embarrassing; E.g. R u a
homosexual?
Liberal X-examination
➢ On the part of an accomplice to show hopes of leniency.
Limitation on right
➢ Court’s discretion to determine method and extent of xexamination; may interfere if inconsistent w/
decorum or conducted in an unfair manner, needlessly protracted.
➢ May not be x-examined as to matters w/c by law are not admissible in evidence.
➢ Cannot introduce hearsay in cross, unless volunteers to and does not ask the same to be stricken out.
➢ Limits inquiries to questions of fact.
➢ Cannot inject unfair insinuations upon the conduct of the witness or comments upon his testimony.
➢ Questions tending to insult, abuse, or intimidate witness not permitted.
➢ May not exceed bounds of propriety.
➢ Judge discretion to allow or deny privilege of repeating ?s w/c have already been fully answered.
➢ Refrain from making frivolous objections.
Procedural limitations
➢ Such evidence should be direct and positive, not remote or uncertain.
➢ If judge excludes testimony w/c would clearly show bias of witness, it is error and may be a ground for new
trial.
➢ If x-examination reveals that witness is prejudiced or hostile feelings, the inquiry may not be pressed
further to show grounds of such hostility or prove details of the facts showing bias.
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Rights of witnesses under x-examination
➢ Witness must answer questions.
1. to be protected from irrelevant, improper or insulting ?s, and from harsh and insulting demeanor
2. not to be detained longer than the interest of justice require
3. not to be examined except only as to matters pertinent to the issue
4. not to give answer w/c will tend to subject him to a penalty for an offense unless otherwise provided by
law
5. not to give an answer w/c will tend to degrade his reputation, unless it be the very fact in issue
Scope
➢ Matter of right, but time at w/c it may be had is discretionary on the court.
➢ REASON: prevent injustice to witness by affording opportunity to explain or amplify testimony given on
cross, and explain contradictions or insistencies in stmts.
➢ Purpose: to explain or rebut adverse testimony or inferences developed on cross, and to rehabilitate a
witness whose credibility has been impeached on cross.
➢ Question on matters not dealt w/ during the cross may be allowed by the court in its discretion; but no right
to go further and introduce matter w/c is new and not explains the expressions and motive of the witness.
Section 8. Re-cross examination. - Upon the conclusion of the re-direct examination, the adverse party
may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other
matters as may be allowed by the court in its discretion.
Purpose: to overcome other party’s attempts to rehabilitate a witness or to rebut damaging evi brought out on x
examination.
➢ Not a matter of right to touch on matters not brought out on the redirect examination of the witness; limited
on new matters brought out on the redirect examination.
Section 9. Recalling witness. - After the examination of a witness by both sides has been concluded, the
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witness cannot be recalled without leave of the court. The court will grant or withhold leave in its
discretion, as the interests of justice may require.
➢ Not a matter of right; cannot be detained longer than the interest of justice requires; w/n the sound
discretion of the court.
➢ If other evi is produced, the witness may be recalled for direct of cross.
Section 10. Leading and misleading questions. - A question which suggests to the witness the answer
which the examining party desires is a leading question. It is not allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and intelligible answers from a witness who is
ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or
private corporation or of a partnership or association which is an adverse party.
A misleading question is one which assumes as true a fact not yet testified to by the witness, or
contrary to that which he has previously stated. It is not allowed.
Leading questions
➢ Leading if it suggests to the witness the answer desired by the examiner; not leading if it merely suggests
a subject w/o suggesting an answer or a specific thing.
Misleading questions
➢ ?s containing facts not in evi since they make witness’ answer implicit w/ admission of the unestablished fact.
➢ Error of judge in allowing a witness to answer a leading ? may be cured by subsequent proceedings as where
the same ? is asked and answered on cross.
Impeach – to discredit a witness’s testimony
Right to Impeach a fundamental right on xexamination, since witness’s credibility is always in issue
Methods of Impeachment of Adverse Party’s Witness
By contradictory evidence
By general reputation for truth, honesty or integrity is bad
By previous inconsistent statements
Contradictory Evidence
Party producing him may contradict him by other evidence
When a witness denies contradictory statement, another witness may be asked whether particular words
denied were in fact used by the witness
The content of a witness’s testimony may be rebutted by proof of facts contrary thereto
Relevancy is required, otherwise such testimony may run afoul the rule against impeachment on a
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collateral matter and of the rule against impeaching one’s own witness
Collateral matter – matter on which evidence could not have been introduced for any relevant purpose (because
proof of this contradiction would be a new matter) which would waste time and confuse the issues; matter itself is
not relevant in the litigation to establish a fact of consequence
If a “collateral” fact happens to have been drawn out on direct, rule against contradiction should still be
applied. The danger of surprise is lessened, but waste of time and confusion of issues stand as
objections.
General Reputation Impeachment by evidence that his general reputation for truth, honesty or integrity is bad
Proof of a witness’s character or reputation is a recognized means of impeaching him or discrediting his
testimony, subject to the restriction against impeaching one’s own witness
General reputation is presumed to be indicative of actual character, and hence it is regarded as of
importance when the credibility of the witness is in question
Where a witness is called to give impeaching testimony as to character, he may speak only of the general
reputation for the truth and veracity not immorality
Where a person’s character has not been called in question justifies inference that his character is good. But an
impeaching witness must be able to show that he has actual knowledge of the reputation of the impeached
witness.
Evidence of “particular wrongful acts” or specific types of bad traits is not admissible unless there is a showing of
previous conviction by final judgment.
Defect on observation, memory and narration may be used such as showing that he had no opportunity to
observe the facts testified to.
Inconsistent Conduct and Bias may be shown to impeach the witness by testing his freedom from interest and
bias, ascertaining his disposition or wishes.
Bias of impeaching witness toward the party to be impeached is always pertinent on the question of his
credibility such as emotional influence such as kinship or hostility or motives of pecuniary interest
Partiality or any acts, relationships or motive reasonably likely to produce it, may be used to impeach
credibility
Rehabilitation of Witnesses:
Opponent must be given an opportunity to meet impeachment or attack against his credibility by evidence
sustaining or rehabilitating (to restore the witness’s credibility) the witness.
It must appear that the witness’s credibility has been attacked and not mere contradiction or rebuttal of
the witness’s testimony by other witness’s.
Depending on the nature of the impeachment evidence, (1) introduction of supportive evidence of good
character; or (2) introduction of inconsistent statements of the witness who has been attacked may be
shown.
Where witness is impeached on bias, it is proper to introduce contradictory evidence to disprove the
existence of such bias, though such bias may not be proved justifiable.
Where witness is impeached on poor reputation for truthfulness, testimony by other witnesses to prove
good reputation for truthfulness may be shown.
Where witness is impeached on criminal conviction, evidence of the witness’s truthfulness may be
admitted to rehabilitate or a brief explanation of the felony of conviction.
The effect of Impeachment is not to strike out or disregard the testimony but to consider the same with caution or
at the judge’s discretion may believe the witness despite impeachment evidence.
Section 12. Party may not impeach his own witness . — Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his
credibility.
A witness may be considered as unwilling or hostile only if so declared by the court upon
adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party
into calling him to the witness stand.
The unwilling or hostile witness so declared, or the witness who is an adverse party, may be
impeached by the party presenting him in all respects as if he had been called by the adverse party,
except by evidence of his bad character. He may also be impeached and cross-examined by the adverse
party, but such cross-examination must only be on the subject matter of his examination-in-chief.
Rule against impeachment of party’s own witness
Traditional view: A party is not allowed to impeach his or her own witness or belonging to the party first calling
them because they vouched for the credibility of those witnesses and is barred from impeaching them.
How to Show Witness is Hostile: Under Sec. 12 a witness is unwilling/hostile if declared by the court upon
showing of: (UMA)
a) Adverse interest
b) Unjustified reluctance to testify
c) Misleading party to call him as witness
The unwilling or hostile witness so declared or an adverse party witness may be impeached in all
respects except by evidence of his bad character or upon x-examination on the subject matter of his
examination-in-chief.
If a party has been misled and surprised by the testimony of his witness, it is unnecessary for him to show
surprise or hostility to justify the Impeachment.
Grounds and procedure for impeachment the same as on x-examination Due to Constitutional limitations
not applicable to criminal cases
Lack of certainty goes to the weight of the testimony but does not affect admissibility
Section 13. How witness impeached by evidence of inconsistent statements. — Before a witness can be
impeached by evidence that he has made at other times statements inconsistent with his present
testimony, the statements must be related to him, with the circumstances of the times and places and the
persons present, and he must be asked whether he made such statements, and if so, allowed to explain
them. If the statements be in writing they must be shown to the witness before any question is put to him
concerning them.
2nd A: If the W admits the making of such contradictory stmt, the accused has the benefit of the admission, while
the witness has the opportunity to explain the discrepancy, if he can.
2nd B: If the W denies, the accused has the right to prove that the W did not make such stmt; and if the fiscal should
refuse upon due notice to produce the document, 2 ndary
evidence of the contents thereof would be admissible.
Rule Applies to Out-of-Court Statements but if made in court, the same can be used against him w/o the need of
laying the predicate.
Effect of witness’s denial of making statement, the adverse party should call in rebuttal a witness to prove that the
statement was in fact made.
Effect of failure to object to the presentation of evidence for impeachment purposes is admissible.
Improper Impeachment exists when the record is silent as to the substance of the stmt in question or to introduce
more of the previously contradictory stmt than is reasonably necessary.
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Prior Inconsistent Statements for Rehabilitation
W impeached by contradictory evidence, may not redeem his credibility by evidence of consistency of his
testimony nor a W be corroborated by proof of his former consistent stmts merely because other Ws have
testified to a different state of facts
Section 14. Evidence of good character of witness. — Evidence of the good character of a witness is not
admissible until such character has been impeached.
General Considerations
Where the reputation of a W has been attacked by the adverse party, such reputation may be sustained
by testimony of other Ws that it is good and that they would believe the W under oath.
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An exception is when the testi imputes gross fraud to a deceased subscribing W to will, evi has been
received to sustain the W character.
Section 15. Exclusion and separation of witnesses. — On any trial or hearing, the judge may exclude from
the court any witness not at the time under examination, so that he may not hear the testimony of other
witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing
with one another until all shall have been examined.
“Placing Witnesses under Rule:”
The court may direct the exclusion of witnesses from courtroom while the testi of other Ws is being given,
the purpose is to prevent the testi of one W from being influenced by that of another.
Section 16. When witness may refer to memorandum. — A witness may be allowed to refresh his memory
respecting a fact, by anything written or recorded by himself or under his direction at the time when the
fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and
knew that the same was correctly written or recorded; but in such case the writing or record must be
produced and may be inspected by the adverse party, who may, if he chooses, cross examine the witness
upon it, and may read it in evidence. So, also, a witness may testify from such writing or record, though
he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly
stated the transaction when made; but such evidence must be received with caution.
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contents to be correct;
Writing in question is not recognized by the W as one wc he remembers to have seen before, and does
not awaken his memory to the recollection of anything that is contained in it, but knowing that the writing
is genuine and is so convinced that he is able to swear positively to the fact.
Admissibility of “Recorded Memory” Writings in Evidence
Depends whether the writing is used to refresh the present or the past recollection of the W
Present Recollection Revised.Where the W has testified independently of or after his testi has been
refreshed by the memorandum of the events in dispute, such memorandum is not admissible as
corroborative evi.
The express injunction of the rule itself is that such evidence must be received w/ caution, if only bcoz it is
not very difficult to conceive and fabricate evidence of this nature.
The party who uses the memorandum to refresh the memory of the W has no right to introduce it in evi
and should not as a rule, be read to the jury.
Writing as Evidence of Past Recollection Recorded . Rule developed to meet the need arising from
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memory wc has failed, or from human incapacity to remember a multitude of figures or details, and the
like.
Unless they may be introduced under the hearsay rule or one of its exceptions, the memoranda are not
evi. Consequently, a copy may be used w/o accntg for the original.
However, where the W upon seeing the writing states that her memory is not revived by it as the facts
were fresh in her mind, the writing itself becomes the evi. The difference rests on the reliability of a writing
wc the W swears is a record of her past recollxn providing the safeguards required are observed.
Section 17. When part of transaction, writing or record given in evidence, the remainder, the remainder
admissible. — When part of an act, declaration, conversation, writing or record is given in evidence by
one party, the whole of the same subject may be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation,
writing or record necessary to its understanding may also be given in evidence.
Rule of Completeness
Where the W, on direct, has testified to part of an event or conversation or writing, it is proper on x-
examination to inquire into any other part thereof necessary to make understandable the part already
introduced.
Extends to any other related act or event necessary to make the transaction understandable.
Section 18. Right to respect writing shown to witness. — Whenever a writing is shown to a witness, it may
be inspected by the adverse party.
When part of a writing is introduced in evi by one litigant, his adversary is entitled to use other parts relevant to
the issues in the case and has the right to inspect the writing and to require its production in court.
I. CLASSIFICATION OF DOCUMENTS
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Section 19. Classes of Documents . — For the purpose of their presentation evidence, documents are
either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign authority, official bodies
and tribunals, and public officers, whether of the Philippines, or of a foreign country;
(b) Documents acknowledge before a notary public except last wills and testaments; and
(c) Public records, kept in the Philippines, of private documents required by law to the entered
therein.
Document – a deed, instrument or other duly authorized paper by wc something is proved, evidenced or set
forth; as evi, consists of writings or any mtls containing letters, words, numbers, figures, symbols or other modes
of written expressions offered as proof of their contents.
Public Document – a doc in the execution of wc a person in authority or a notary public takes part
Only private docs requires proof of their due execution and authenticity before they can be received as
evi
Failure to deny due execution and authenticity of the pleadings or actionable docs are deemed as
admission of the same
Offer of Evidence
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The court shall consider no evi wc has not been formally offered and purpose of the offer must be
specified.
Must identify and describe the doc
Offer the same as an exhibit
Necessary because it is the duty of the judge to rest his findings of facts and his judgment only and
strictly upon the evi offered by the parties at the trial
May be made orally or in writing sufficient to show that the party is ready and willing to submit the evi to
the court
Section 20. Proof of private document. — Before any private document offered as authentic is received in
evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be.
Authentication:
The act or mode of giving authenticity to a statute, record or other written instrument, or a certified copy
thereof, so as to render it legally admissible in evi; verifications of judgment;
Attestation made by a proper officer by wc he certifies that the record is in due form of law, and that the
person who certifies it is the officer appointed to do so.
Acts done in view of causing an instrument to be known and identified
Introduction of evi sufficient to sustain a finding that it is the writing that the proponent of the evi claims it
is;
Establishment of such facts by any other means provided by law
A condition precedent to the admissibility of evi satisfied upon a showing that the matter in question is
what its proponent claims
Private writing is not self-authenticating and would require proof of their due execution and authentication
before they can be received in evi, otherwise it will be excluded. It is set up by the rules to prevent
spurious docs.
PROOF OR AUTHENTICITY
Opinion testimony
Opinion testimony as to the handwriting identification is admissible or may be authenticated by evi of the
handwriting of the maker of by a person familiar thereto.
A letter should be authenticated before it can be offered as evi by establishing its identity as the letter of
the person by whom it purports to be written thru a showing that the same is signed or handwritten by
said person, or by indirect or circumstantial evi.
The partial destruction or obliteration of the copies of the letter will not render them inadmissible if
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identified by competent evi.
Authentication by proving document produced by reliable process such as x-rays and computer rintouts provided
that testi describing the process and reliability thereof is shown.
Telegrams
Similar to the rules of admissibility of private docs, the difference resulting to the fact that such msgs are 1
st
written by the sender and are again written by the operator at the end of the line. The best evi is still the
orig msg.
Authenticity requires proof that it is genuine and was written and actually sent by the sender; it may be
shown by indirect and circumstantial evi.
Computer Records
Elements of identification and authentication of a readout are:
The proponent uses a computer;
The reliability of a computer;
The proponent has developed a procedure for inserting data into the computer;
The procedure has built in safeguards to insure accuracy and identify errors;
The proponent keeps the computer in a good state of repair;
The W had the computer readoutcertain data;
The W used the proper procedure to obtain the readout;
The computer was in working order at the time the proponent obtained the readout
Self-Authenticating Documents
Docs by their nature are prima facie of its own authentication:
Official records under seal
Notarized docs
Certified copies of public records
Section 21. When evidence of authenticity of private document not necessary . — Where a private
document is more than thirty years old, is produced from the custody in which it would naturally be found
if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its
authenticity need be given.
Ancient Documents
An exception to the GR and the subscribing Ws are presumed to be dead. The ancient rule is strong that
the instruments are said to prove themselves even when the W is in court.
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Rebuttable presumption that applies also to maps or plats
Requirements of Rule:
1) The private doc is more than 30 y.o.;
2) It is produced from a custody in wc it would naturally be found if genuine; and
3) It is unblemished by any alterations or circumstances of suspicion, no other evi of its authenticity need be
given.
Preliminary proof.
The doc offered in evi must on its face be free from suspicion, come from proper custody, and
accompanied by some corroborating evi. If no.2 rqmt is absent, proof of execution and genuineness is
required.
Proper custody – they are in the place in wc, and under the care of the person w/ whom, they would
naturally be unless it is proved to have had a legitimate origin or circumstances to render the origin
probable. It is when doc is in the proper custody wc credit of genuineness is given, removing
presumptions of frau and strengthen the genuineness of the belief.
In some cases, proper custody may be dispensed w/ upon showing of the internal bearing of the doc evi
that manifests its age and authenticity.
Conditions of Custody
Determined by the circumstances of the case. While there may be one place absolutely and strictly
proper, there are various places wc are reasonable and natural. And the former is not required.
Docs wc affect real property must be recorded w/ the appropriate RD to bind rd3parties.
Methods of authentication
1. testimony of purported writer
➢ except to the extent that certain formalities of proof are required by the rules relating to attesting
witnesses, or rules requiring formal certification.
➢ No preferential rule in favor of the same as best evi.
2. testimony of a witness who had seen writer sign name or actually make the writing.
➢ Any witness who believes it to be the handwriting of such person bec he has seen him write or has
seen writing purporting to be his upon w/c the witness has acted or been charged, or by a
comparison made by witness or court w/ admitted or genuine writings
3. non-expert opinion
➢ proved by direct evi by any1 who saw the doc executed or signed, or opinion evi where genuineness
of handwriting is in issue.
➢ Opinion evi received in evi if witness has sufficient familiarity w/ the handwriting.
➢ Admissible even if witness has not seen the person write for many yrs b4 the trial or seen him write
on only one occasion.
➢ Qualified even if not expert and saw him write his name or surname only or never.
➢ Knows writing if had frequently come into his possession or scrutiny or submitted to him docs.
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➢ Knows handwriting through exam papers, letters, being a custodian of docs, doc’s prescriptions, daily
reports, pleading
➢ Handwriting experts not mandatory.
Expert opinion
➢ In comparison, only expert opinion testimony admissible.
➢ Qualifications: knowledge and skill acquired by special study or practical experience.
➢ Weight: depends on the assistance he may afford in pointing out the distinguishing marks, characteristics
and discrepancies btwn the genuine and false specimens.
Section 23. Public documents as evidence. — Documents consisting of entries in public records made in
the performance of a duty by a public officer areprima facie evidence of the facts therein stated. All other
public documents are evidence, even against a third person, of the fact which gave rise to their execution
and of the date of the latter.
➢ Rule on authentication not apply; admissible w/o further proof of due execution and genuineness.
➢ REASON: necessity – practical impossibility of requiring the official’s attendance as a witness;
trustworthiness – it is the official duty, routine, disinterested; made by a public officer w/n scope of his duty
ad attached w/ presumption of regularity, legality and accuracy.
Probative value
➢ Prima facie evi of the facts therein stated.
➢ Public docs are evi even against a third person.
➢ High degree of proof needed to overcome presumption.
➢ A notarized public doc is evi that the facts are clear, unequivocal manner; presumption of regularity; evi
must be clear, convincing and more than merely preponderant to overcome presumption.
Section 24. Proof of official record . — The record of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if
the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in
which the record is kept is in foreign country, the certificate may be made by a secretary of the embassy
or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service
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of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the
seal of his office.
Section 25. What attestation of copy must state. — Whenever a copy of a document or record is attested
for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of
the original, or a specific part thereof, as the case may be. The attestation must be under the official seal
of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such
court.
Attesting cert
➢ Signatory states that the attached doc is a copy of an official record on a specific part thereof, in his
custody; must be under official seal of court or attesting officer.
➢ Recital in the cert of acknowledgment is prima facie evi of the fact that he was such an officer.
➢ Copy shld be properly identified and connected w/ the original; accuracy and veracity established
➢ Exam may be made either by one person reading both orig and copy, or by 2 persons one reading orig
and the other the copy; not necessary that each alternate read both; witness must have knowledge that
copy is correct, or if gives parol evi of a lost doc, show competent knowledge.
➢ Officer’s cert is conclusive only to the extent that it is made so by the statute.
➢ If a law provides for its authentication, it must be followed.
Foreign docs
➢ Competent evi if duly authenticated by an official of the govt of the country in w/c the docs are located.
Foreign judgments
➢ It is written act or record of an official body or tribunal of a foreign country, thus a public writing, follow secs
24 and 25, Rule 132.
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3. Be the cert of an officer authorized by law
4. If they are all beyond reach, other testimony inferior in nature may be received.
➢ Authenticatin sufficient if application has been made to the clerk of court for a copy, and if witness assisted
in comparing copy w/ record and in affixing the seal.
➢ Sufficient to show by an expert that record is authenticated and authorized in the right manner.
➢ There must be some extrinsic proof of the genuineness of the signatures and seals if foreign judgment.
➢ Great seal of the govt or state proves itself; no need for cert of officer of court.
Section 26. Irremovability of public record. — Any public record, an official copy of which is admissible in
evidence, must not be removed from the office in which it is kept, except upon order of a court where the
inspection of the record is essential to the just determination of a pending case.
REASON: wud make it impossible for the time being for others to use the record; serious risk of loss and constant
addtl wear and tear; delays and hinders the official use of the files
➢ GR: irremovable
EXC: inspection of the record is essential to the just determination of a pending case.
Section 27. Public record of a private document . — An authorized public record of a private document
may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record,
with an appropriate certificate that such officer has the custody.
Proved by
1. Orig record
2. Copy thereof attested by legal custodian w/ cert that such officer has custody
➢ If priv doc inserted in pub doc, its incorporation becomes a public doc but does not make the priv doc itself
a public doc.
➢ E.g. entries in a public registry of a priv doc presented for reg; possessory info duly recorded in the registry
of property.
Section 28. Proof of lack of record. — A written statement signed by an officer having the custody of an
official record or by his deputy that after diligent search no record or entry of a specified tenor is found to
exist in the records of his office, accompanied by a certificate as above provided, is admissible as
evidence that the records of his office contain no such record or entry.
➢ E.g. cert by Board of Medical Examiners that no records of accused as a registered doctor is admissible in
evi of such fact.
Section 29. How judicial record impeached. — Any judicial record may be impeached by evidence of: (a)
want of jurisdiction in the court or judicial officer, (b) collusion between the parties, or (c) fraud in the
party offering the record, in respect to the proceedings.
Section 30. Proof of notarial documents. — Every instrument duly acknowledged or proved and certified
as provided by law, may be presented in evidence without further proof, the certificate of
acknowledgment beingprima facie evidence of the execution of the instrument or document involved.
➢ Notarial doc is one duly authorized b4 a notary public; it is public doc; recital in acknowledgment is prima
facie evi of fact that he was such an officer.
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➢ Execution and authenticity need not be proved; not pub need not testify; presumed that NP has performed
his duties.
➢ If discrepancy btwn date of deed and date of acknowledgment, latter prevails; copy of record of such deed
cannot be objected to on account of such discrepancy.
➢ If words omitted in acknowledgment by mistake but supplied by reference to the body of the deed, the
acknowledgment is good.
➢ Acknowledgment is an ex parte act, and only prima facie proof of execution and rebuttable by showing that
NP is incompetent or out of his jurisdiction.
Section 31. Alteration in document, how to explain. — The party producing a document as genuine which
has been altered and appears to have been altered after its execution, in a part material to the question in
dispute, must account for the alteration. He may show that the alteration was made by another, without
his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or
innocent made, or that the alteration did not change the meaning or language of the instrument. If he fails
to do that, the document shall not be admissible in evidence.
Test of materiality
➢ Material if it alters the terms, language of the instr or changes the rights, obligations or interests of the
parties.
➢ Material alterations in nego instr governed by sec 125, NIL.
➢ Immaterial
Alteration Spoliation
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Made by a party or agent Made by a stranger
Parol evi admissible to
impeach instr by proof of
material alterxn.
Immaterial alterations
➢ Not necessarily follows that contract is vitiated by every sort of alteration that may have been made by a
party or privy after delivery of the instr.
➢ Alterations of little importance, made to correct obvious clerical errors, to make it conform to actual
agreement , does not change liability of parties
Section 32. Seal. — There shall be no difference between sealed and unsealed private documents insofar
as their admissibility as evidence is concerned.
➢ If doc required by law to be stamped, cannot be recorded or admitted in evi if not stamped
➢ Doc not admissible if doc stamp not paid when it is subject to be paid; court gives chance to comply w/ doc
stamp
➢ No doc stamp in a will is not fatal since probate court can require proponent to affix the same in notarial
acknowledgment.
➢ Non-admissibility for absence of doc stamp subsists only until the required doc stamps have been affixed.
➢ Doc stamp must be affixed in the orig; a copy of the doc need not bear the stamp if stamp is affixed on the
orig; presumed that orig is stamped.
→ [Sec. 7, Art. XIV, Consti] – For purposes of communication and instrxn, the official lang of the Phils. are Fil and,
until otherwise provided by law, Eng.
→ affidavit executed in Ilonggo – The trial court had discretion to deny the party an opportunity to secure a
translation of the affidavit
→ The translation must shown to be accurate.
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(2) It should be identified and marked for ID.
(3) It should be formally offered in evi to the court and shown to the opposing party so that the latter may have
an opportunity to obj thereon.
→ Sec. 34, Rule 132
→ It is the duty of the judge to rest his findings of facts and his judgment only and strictly upon the evi
offered by the parties at the trial.
→ offer may be made orally or in writing
Waiver
→ [People v. Salison Jr. (1996)] – Where there was no objxn to the admissibility of a written stmt in Cebuano
dialect which was not accompanied with a translation in Eng or Fil, the court in the interest of justice may
consider the docu and order an official translation to be made.
Section 34. Offer of evidence . — The court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be specified.
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→ When the evi is inadmissible for the purpose stated in the offer, it must be rejected, though the same may be
admissible for another purpose.
→ There is NO need to specify the specific purpose if such has been specified duringthe ID of the docu by the
witnesses of the proponent.
Section 35. When to make offer. — As regards the testimony of a witness, the offer must be made at the
time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a party's testimonial
evidence. Such offer shall be done orally unless allowed by the court to be done in writing.
Section 36. Objection. — Objection to evidence offered orally must be made immediately after the offer is
made.
Objection to a question propounded in the course of the oral examination of a witness shall be
made as soon as the grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after notice of the unless
a different period is allowed by the court.
In any case, the grounds for the objectionsmust be specified.
Necessity of Objxn
→ The right to raise an objxn belongs to teh opposing party and the latter can waive such right. If NO objxn is
interposed, the court has NO power on its own to disregard the evi.
Requisites
(1) One has to obj to the evi;
(2) The objxn must be timely made; and
(3) The grounds for the objxn must be specified
→ Jones: In crim cases where error in the admission of highly prejudicial evi is so serious as to amt to a denial
of due process of law, failure of the defendant to make timely objxn does NOT preclude him from rai sing the
objxn on appeal.
Effect of Cross-exam
→ A party who objs to the intro of testimony on direct does not waive the objxn by his crossexam of the witness
wrt this testimony. Neither does the objector waive his objxn by his intr
o of testimony defensive to the testimony
objected to, and weakening it or impeaching the witness.
→ [Limketkai Sons Milling, Inc. v. CA] – the lawyers prefaced the crossexam with an objxn to the admission of
evi in affidavit form. The court held that wh ile said counsels cross-examined the witnesses, this did not
constitute a waiver of the parol evi rule.
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▫ testimonies in affidavit form – prompt objxn to inadmissibility is hardly possible
Section 37. When repetition of objection unnecessary. — When it become s reasonably apparent in the
course of the examination of a witness that the question being propounded are of the same class as
those to which objection has been made, whether such objection was sustained or overruled, it shall not
be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing
objection to such class of questions.
→ In making a continuing objxn, counsel may reserve his right to make specific objxns whenever he wishes to
illustrate specific weakness in the evi.
Section 38. Ruling. — The ruling of the court must be given immediately after the objection is made, unles
s the court desires to take a reasonable time to inform itself on the question presented; but the ruling
shall always be made during the trial and at such time as will give the party against whom it is made an
opportunity to meet the situation presented by the ruling.
The reason for sustaining or overruling an objection need not be stated. However, if the objection
is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify
the ground or grounds relied upon.
“Por Lo Que Puedo Valer” Principle
→ The SC encourages the admission of borderline evi “for whatever it is wo rth.”
→ express ruling NOT req’d if there’s no objxn interposed
→ Such rulings are interlocutory in nature and may not be the subj of separate appeal or review on certiorari but
are assigned as errors and reviewed on appeal properly taken from the decision rendered by the trial court.
→ An exception is where the trial court in overruling the objxn to the evi, commits a patent mistake amting to a
grave abuse of discretion, or a violation of a constitutional right of the accused, or the admission of unauthori
zed tapes contrary to law.
Section 39. Striking out answer. — Should a witness answer the question before the adverse party had
the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the
court shall sustain the objection and order the answer given to be stricken off the record.
On proper motion, the court may also order the striking out of answers which are incompetent,
irrelevant, or otherwise improper.
Failure to Cross-examine
→ A motion to strike is also the remedy in case a witness dies or become incapacitated to testify when the other
party has not been given the opportunity to cross-examine the witness.
→ If the witness was not crossexamined bec of the postponement asked by the party who claims the right of
cross-exam, the direct exam may be used. The reason is that the party who had a right to cross-examine took
a chance in losing it.
Section 40. Tender of excluded evidence. — If documents or things offered in evidence are excluded by
the court, the offeror may have the same attached to or made part of the record. If the evidence excluded
is oral, the offeror may state for the record the name and other personal circumstances of the witness
and the substance of the proposed testimony.
Offer of Proof
→ It should be made in such a form as to be understandable and state the manner and evi by which the proof is
to be made. The offer must fully and clearly state the facts which counsel desires to prove and must indicate
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the purpose for which the evi is offered.
When Offer NOT Req’d
(a) When the question to which an objxn has been sustained clearly reveals on its face the substance, urpose p
and relevancy of the excluded evi.
(b) When the substance, purpose and relevancy of the excluded evi was made known to the court earlier in the
courts of the proceedings and such fact appears on record.
(c) Where evi is inadmissible when offered and excluded, but thereafter becomes admissible, it must be re-
offered, unless the court indicates that a second offer would be useless. The same procedure should be
followed where the court has reserved its ruling as to its admissibility. It is the proponent’s duty to renew
the offer and insist on a ruling thereon.
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