VIII.

TESTIMONIAL EVIDENCE

A. Testimonies and Witnesses:

1. What is a testimony?
Testimony/ Testimonial or oral evidence is an evidence elicited
from the mouth of a witness. It is sometimes called viva voce
evidence which literally means “living voice” or by word of mouth. In
this kind of evidence, a human being (witness) is called to the stand,
is asked questions, and answers the question asked of him (Riano,
2016).

2. In what form may a testimony be given?

Testimony shall be given orally.

3. Who is a witness?

A witness is a person whose declaration under oath (or affirmation)

is received as evidence for any purpose, whether such declaration
be made on oral examination or by deposition or affidavit.

4. Who is a child witness?

As a rule, a child witness is any person who is below 18 years old at

the time of the giving of his testimony. A child includes one over 18
years but found by the court as unable to fully take care of himself
or protect himself from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or
condition. (Republic Act No. 7610)

a. Who is a facilitator?

“Facilitator” means a person appointed by the court to pose

questions to a child. (Republic Act No. 7610, Sec 4)

b. Who is a support person?

A “support person” is a person chosen by the child to

accompany him to testify at or attend a judicial proceeding or
deposition to provide emotional support for him. (Republic Act
No. 7610, Sec 4)

c. What is the procedure in testing the competency of a child

witness?

Every child is presumed qualified to be a witness. However, the

court shall conduct a competency examination of a child, motu
proprio or on motion of a party, when it finds that substantial
doubt exists regarding the ability of the child to perceive,
remember, communicate, distinguish truth from falsehood, or
appreciate the duty to tell the truth in court. (Republic Act No.
7610, Sec 6)

A party seeking a competency examination must present proof

of necessity of competency examination. The age of the child by
itself is not a sufficient basis for a competency examination. To
 rebut the presumption of competence enjoyed by a child, the
burden of proof lies on the party challenging his competence.

Examination of a child as to his competence shall be conducted

only by the judge. Counsel for the parties, however, can submit
questions to the judge that he may, in his discretion, ask the
child.

The questions asked at the competency examination shall be

appropriate to the age and developmental level of the child; shall
not be related to the issues at trial; and shall focus on the ability
of the child to remember, communicate, distinguish between
truth and falsehood, and appreciate the duty to testify truthfully.

The court has the duty of continuously assessing the

competence of the child throughout his testimony. (Republic Act
No. 7610, Sec 6)

d. How is the examination of a child witness done?

The examination of a child witness presented in a hearing or any

proceeding shall be done in open court. Unless the witness is
incapacitated to speak, or the question calls for a different mode
of answer, the answers of the witness shall be given orally.

The party who presents a child witness or the guardian ad litem

of such child witness may, however, move the court to allow him
to testify in the manner provided in this Rule. (Republic Act No.
7610, Sec 8)

5. Who is a state witness?

A state witness is an accomplice who gives evidence in criminal

proceeding usually in the expectancy of lighter punishment or
pardon.

A state witness is one of two or more persons jointly charged with

the commission of a crime but who is discharged with his consent
as such accused so that he may be a witness for the State.

6. What is the difference between a state witness under the rules on

criminal procedure and a state witness under RA 6981?

State witness under the rules of criminal procedure pertains to an

accused being a state witness, while in RA 6981, it may involve Any
person who has knowledge of or information on the commission of a
crime and has testified or is testifying or is willing to testify.

7. Who is a hostile witness?

 A hostile witness is one whose testimony is not favorable to the
cause of the party who called him as a witness. It may refer to:

a. a witness who manifest so much hostility and prejudice during

the direct examination that the party who called him is allowed to
cross-examine, i.e. to treat him as if he had been called by the
opposite party
b. one who surprises the party and unexpectedly turns against him

A witness may be considered as unwilling or hostile only if so declared

by the court upon adequate showing of his or her adverse interest,
unjustified reluctance to testify, or his or her having misled the party into
calling him or her to the witness stand. (A.M. No. 19-08-15-SC)

8. What are the qualifications of a witness?

Rule 130 (as per A.M. No. 19-08-15-SC)

Sec. 21. Witnesses; their qualifications. – All persons who can

perceive, and perceiving, can make known their perception to
others, may be witnesses. (20a)

9. Who is a competent witness?

A competent witness is one who is legally qualified to be heard to

testify in a cause. He is one who is not legally disqualified from
testifying in courts of justice by reason of mental incapacity, interest
on the commission of crimes, or other cause excluding him from
testifying generally, or respect of the particular subject matter, or in
the particular suit.

10. Who is a credible witness?

A credible witness is one who testifies in a categorical,

straightforward spontaneous and frank manner and remains
consistent on cross examination.

Credibility of witnesses is determined by the conformity of their

testimonies to human knowledge, observation and experience.
(G.R. No. 161308, January 15, 2014)

11. Disqualification of Witnesses:

a. What is an absolute disqualification from being a witness?

1. An absolute disqualification from being a witness is one when

the person is disqualified from being a witness due to a
physical or mental cause. (Sec. 21, Rule 130 – this section is
deleted as per A.M. No. 19-08-15-SC)

The proposed witness is prohibited to take the witness stand.

(Herrera, 1999)

2. Disqualification by reason of marriage. (Sec. 22, Rule 130 –

Sec 23 as per A.M. No. 19-08-15-SC)
 b. What is a relative disqualification from being a witness?

Relative or partial disqualification from being a witness is one

when the witness is disqualified from testifying only on certain
matters but not as to others facts.

The proposed witness is prohibited to testify only on certain

matters due to interest or relationship, or to privileges of other
parties. (Ibid.)

Disqualification by reason of privileged communication. (Sec. 24,

Rule 130)

12. Give five grounds for the absolute disqualification of a witness. Give
the requisites for the application of each.

Sec. 23. Disqualification by reason of marriage. – During their

marriage, the husband or the wife cannot testify against the other
without the consent of the affected spouse, except in a civil case by
one against the other, or in a criminal case for a crime committed by
one against the other or the latter’s direct descendants or
ascendants. (22a) (As per A.M. No. 19-08-15-SC)

13. Give five grounds for the relative disqualification of a witness. Give
the requisites for the application of each.

Sec. 24. Disqualification by reason of privileged communications. –

The following persons cannot testify as to matters learned in
confidence in the following cases:

A. Marital privileged communications

a. Valid marriage between the husband and
wife
b. There is a communication received in
confidence by one from the other
c. Confidential communication was received
during the marriage

B. An attorney or person reasonably believed by the

client to be licensed to engage in the practice of law
cannot, without the consent of the client, be
examined as to any communication made by the
client to him or her, or his or her advice given
thereon in the course of, or with a view to,
professional employment, nor can an attorney’s
secretary, stenographer, or clerk, or other persons
assisting the attorney be examined without the
consent of the client and his or her employer,
concerning any fact the knowledge of which has
been acquired in such capacity, except in the
following cases:
a. Furtherance of crime or fraud. If the services
or advice of the lawyer were sought or
 obtained to enable or aid anyone to commit
or plan to commit what the client knew or
reasonably should have known to be a crime
or fraud;
b. Claimants through same deceased client. As
to a communication relevant to an issue
between parties who claim through the same
deceased client, regardless of whether the
claims are by testate or intestate or by inter
vivos transaction;
c. Breach of duty by lawyer or client. As to a
communication relevant to an issue of
breach of duty by the lawyer to his or her
client, or by the client to his or her lawyer;
d. Document attested by the lawyer. As to a
communication relevant to an issue
concerning an attested document to which
the lawyer is an attesting witness; or
e. Joint clients. As to a communication relevant
to a matter of common interest between two
or more clients if the communication was
made by any of them to a lawyer retained or
consulted in common, when offered in an
action between any of the clients, unless
they have expressly agreed otherwise.

C. A physician, psychotherapist or person reasonably

believed by the patient to be authorized to practice
medicine or psychotherapy cannot in a civil case,
without the consent of the patient, be examined as
to any confidential communication made for the
purpose of diagnosis or treatment of the patient’s
physical, mental or emotional condition, including
alcohol or drug addiction, between the patient and
his or her physician or psychotherapist. This
privilege also applies to persons, including
members of the patient’s family, who have
participated in the diagnosis or treatment of the
patient under the direction of the physician or
psychotherapist.

D. A minister, priest or person reasonably believed to

be so cannot, without the consent of the affected
person, be examined as to any communication or
confession made to or any advice given by him or
her, in his or her 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 or after

his or her tenure as to communications made to him
or her in official confidence, when the court finds
that the public interest would suffer by the
disclosure.
 14. What is the difference between testimonial privilege and testimonial
disqualification?

15. What is the difference between parental testimonial privilege and

filial testimonial privilege?

Parental testimonial privilege refers to conduct of parents in

testifying against his children while filial testimonial privilege is the
children’s conduct of testifying against the parents. In both cases
they cannot be compelled to testify against each other.

Sec. 25. Parental and filial privilege. – No person shall be

compelled to testify against his or her parents, other direct
ascendants, children or other direct descendants, except when such
testimony is indispensable in a crime against that person or by one
parent against the other. (25a) (as per A.M. No. 19-08-15-SC)

16. What is a privileged communication?

Privileged Communication is a conversation that takes places within

the context of a protected relationship, such as that between an
attorney and client, a husband and wife, a priest and penitent, and a
doctor and patient. The law often protects against forced disclosure
of such conversations.

17. What are the obligations of a witness?

Rule 132 (as per A.M. No. 19-08-15-SC)

Sec. 3. Rights and obligations of a witness. – A witness must

answer questions, although his or her answer may tend to establish
a claim against him or her.

18. What are the rights of a witness?

Rule 132, Section 3 (as per A.M. No. 19-08-15-SC)

(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 or her to a
penalty for an offense unless otherwise provided by law; or
(5) Not to give an answer which will tend to degrade his or her
reputation, unless it be to the very fact at issue or to a fact from
which the fact in issue would be presumed. But a witness must
answer to the fact of his or her previous final conviction for an
offense. (3a)
B. Examination of Witnesses

1. Why must testimonies be given in open court?

Testimonies should be given in open court because open court
examination allows the court the opportunity to observe the
demeanor of the witness and allows the adverse party to cross-
examine the witness. (Riano, 2016)

2. Why must testimonies be given orally?

The main and essential purpose of requiring a witness to appear and

testify orally at a trial is to secure for the adverse party the
opportunity of cross-examination. (G.R. No. L-41166 August 25,
1976)

3. What are the exceptions to the rule that testimonies must

be given orally?

The exceptions to the rule that testimonies must be given orally are:
a. Rule 132, Sec 1
- the witness is incapacitated to
speak, or
- the question calls for a different
mode of answer
b. In civil cases, by depositions pursuant to and
under the limitations of Rules 23 and 24
(Regalado, 2008);
c. In criminal cases, by depositions or
conditional examinations, pursuant to Secs.
12-15, Rule 119;
d. In criminal cases covered by the Rule on
Summary Procedure, the affidavits of the
parties shall constitute the direct testimonies
of the witnesses who executed the same
(Riano, 2016, citing Sec. 15, Rule on
Summary Procedure);
e. In civil cases covered by the Rules on
Summary Procedure, the parties are merely
required to submit the affidavits of their
witnesses and other pieces of evidence on
the factual issues, together with their position
papers, setting forth the law and the facts
relied upon (Riano, 2016, citing Sec. 9, Rule
on Summary Procedure); and
f. Under the Judicial Affidavit Rule, the judicial
affidavit shall take the place of direct
testimonies of witnesses. (Sec. 2, Judicial
Affidavit Rule)

4. What is the difference between an oath and an affirmation?

Oath is an outward pledge made under an immediate sense of

responsibility to God or a solemn appeal to the Supreme, or being in
attestation of the truth of some statement while an affirmation is a
substitute for an oath and is solemn and formal declaration that the
witness will tell the truth.

The option to take either an oath or affirmation is given to the witness

and not to the court. (Riano, 2016)
5. Why must a witness be sworn?

A witness must be sworn for him to tell the truth during examination.
If the witness is later found to have lied whilst bound by the
commitment, they can be charged with the crime of perjury. The
types of commitment can include oaths, affirmations and promises.

6. What are the duties of a witness?

The duties of a witness include:

a. To testify
b. to answer questions
c. to answer truthfully

Rule 132 (as per A.M. No. 19-08-15-SC)

Sec. 3. Rights and obligations of a witness. – A witness must

answer questions, although his or her answer may tend to establish
a claim against him or her.

7. Who shall examine the witness?

The following may examine the witness:

a. His own counsel
b. Opposing counsel

8. What is a voir dire examination under the Philippine setting?

Voir Dire Examination is the examination conducted by the court on

the competency of a witness whenever there is an objection to the
competency of the witness and is usually made before the witness
starts with his testimony. The party objecting maybe allowed to
present evidence on his objection or the court itself may conduct the
questioning on the witness.

9. What is the procedure in conducting a competency test for a

child witness?

Every child is presumed qualified to be a witness. However, the

court shall conduct a competency examination of a child, motu
proprio or on motion of a party, when it finds that substantial doubt
exists regarding the ability of the child to perceive, remember,
communicate, distinguish truth from falsehood, or appreciate the
duty to tell the truth in court. (Republic Act No. 7610, Sec 6)

A party seeking a competency examination must present proof of

necessity of competency examination. The age of the child by itself
is not a sufficient basis for a competency examination. To rebut the
presumption of competence enjoyed by a child, the burden of proof
lies on the party challenging his competence.

Examination of a child as to his competence shall be conducted only

by the judge. Counsel for the parties, however, can submit
questions to the judge that he may, in his discretion, ask the child.
The questions asked at the competency examination shall be
appropriate to the age and developmental level of the child; shall not
be related to the issues at trial; and shall focus on the ability of the
child to remember, communicate, distinguish between truth and
falsehood, and appreciate the duty to testify truthfully.

The court has the duty of continuously assessing the competence of

the child throughout his testimony. (Republic Act No. 7610, Sec 6)

10. What are the purposes of:

a) Direct examination?

The purpose of a direct examination is to elicit facts about the

client’s cause of action or defense. (Riano 2016)

b) Cross-examination

The purpose of a cross-examination is to:

- To bring out facts favorable to
counsel’s client not established
by the direct testimony; and
- To enable counsel to impeach
or to impair the credibility of the
witness. (Ibid.)

c) Re-direct examination

The purpose of a re-direct examination is to:

- afford opportunity to the
witness to explain or
supplement his answers given
during the cross-examination;
and
- To rehabilitate a witness whose
credibility has been damaged.
(Ibid.)

d) Re-cross examination

The purpose of a re-cross examination is to:

- To overcome the proponent’s
attempt to rehabilitate the
witness; and
- To rebut damaging evidence
brought out during redirect
examination
11. What is a judicial affidavit?

A judicial affidavit is a written sworn statement of fact voluntarily

made by an affiant or deponent under an oath or affirmation
administered by a person authorized to do so by law. Such
statement is witnessed as to the authenticity of the affiant's signature
by a taker of oaths, such as a notary public or commissioner of
oaths.

12. What are the rules on the application of the Judicial Affidavit
Rule in:
a) civil cases

In civil cases (with the exception of small claims), the

application of the JAR is mandatory regardless of the amount
of money claimed. (A.M. No. 12-8-8-SC)

b) criminal cases

The judicial affidavit rule shall apply to all criminal actions:

1. Where the maximum of the imposable penalty does
not exceed 6 years
2. Where the accused agrees to the use of judicial
affidavits, irrespective of the penalty involved; or
3. With respect to the civil aspect of the actions,
whatever the penalties involved are. (Sec 9, JAR)

13. When may a witness be allowed to use a memorandum?

Rule 132, Sec 16 (When witness may refer to memorandum)

A witness may be allowed to use a memorandum to refresh his or

her memory respecting a fact by anything written or recorded
by himself or herself, or under his or her direction, at the time when
the fact occurred, or immediately thereafter, or at any other time
when the fact was fresh in his or her memory and he or she 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 or she chooses, cross-examine
the witness upon it and may read it in evidence. A witness may also
testify from such a writing or record, though he or she retains no
recollection of the particular facts, if he or she is able to swear that
the writing or record correctly stated the transaction when made; but
such evidence must be received with caution. (16a)

14. Define the two kinds of memoranda.

The 2 kinds of memorandum are the following:

a. Present recollection revived

This memorandum applies if the witness remembers the facts
regarding his entries.

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 later so long as the fact was fresh in his memory
and he knew that it 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.

b. Past recollection recorded

This applies where the witness does not recall the facts involved.

A witness may also testify from such a writing or record, though

he retains 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.
(Sec. 16, Rule 132)

15. What is impeachment of a witness?

It is a technique employed usually as part of cross-examination to

discredit a witness by attacking his credibility. (Riano, 2016)

16. Who may be impeached as witnesses?

All witnesses presented may be impeached. However, except with

respect to unwilling or hostile witnesses or 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, the party presenting the witness is not allowed to
impeach his or her credibility.

17. How may a witness be impeached?

Sec 11, Rule 132. A witness may be impeached by the party

against whom he or she was called, by contradictory
evidence, by evidence that his or her general reputation for
truth, honesty, or integrity is bad, or by evidence that he or she
has made at other times statements inconsistent with his or her
present testimony, but not by evidence of particular wrongful
acts, except that it may be shown by the examination of the
witness, or record of the judgment, that he or she has been
convicted of an offense. (11a)

Other modes of impeaching the witness:

1. By involving him during cross-examination in contradiction;

2. By showing the impossibility or improbability of his testimony
3. By proving action or conduct of the witness inconsistent with his
testimony; and
4. By showing bias, interest or hostile feeling against the adverse
party. (Herrera, 1999)

18. What is the difference between “laying the predicate” and

“laying the foundation”?

19. What is the One Day Examination of Witness Rule?

The One-Day Examination of Witness Rule is a provision in A.M. No.
03-1-09-SC which states that a witness has to be fully examined in
one (1) day only, and such shall be strictly adhered to subject to the
courts' discretion during trial on whether or not to extend the direct
and/or cross-examination for justifiable reasons. (Par. 5(i) of
Supreme Court A.M. No. 03-1-09-SC)

20. When may the testimony of a witness be expunged from the

record?

The testimony of a witness may be expunged from the record on the

following grounds:
a. When the witness answers prematurely before there is
reasonable opportunity for the adverse party to object, and
such objection is found to be meritorious;
b. When the answers are incompetent, irrelevant, or improper
(Sec. 39, Rule 132);
c. When the witness becomes unavailable for cross-
examination through no fault of the cross-examining party;
d. When the answer is unresponsive;
e. When the testimony was allowed conditionally and the
condition for its admissibility was not fulfilled (Riano,
2016);
f. When a witness has volunteered statements in such a way
that the party has not been able to object thereto;
g. When a witness testifies without a question being
addressed to him;
h. When a witness testifies beyond the ruling of the court
prescribing the limits within which he may answer
(Herrera, 1999); or
i. Uncompleted testimonies where there is no opportunity for
the other party to cross- examination. (Ibid.)

21. When may a witness be recalled?

A witness may be recalled when the examination has not been

concluded and if the recall of the witness was expressly reserved by
a party with the approval of the court. In these two cases the recall of
a witness is a matter of right. (Regalado, 2008)

{GR: After the examination of a witness by both sides has been

concluded, the witness cannot be recalled without leave of court. The
court will grant or withhold leave in its discretion, as the interests of
justice may require. (Sec. 9, Rule 132)}
C. Rules on Testimonies

1. What is testimonial knowledge?

2. Dead Man Statute

a. What are the other terms for this rule?

The other terms for this rule are:

A. Disqualification by reason of death or insanity of the
adverse party
B. Surviving Party Rule
C. Survivorship Disqualification rule

b. What is the Dead Man Statute?

Dead Man Statute is a provision in the Rules of Court which

states that: Parties or assignors of parties to a case, or
persons in whose behalf a case is prosecuted, against an
executor or administrator or other representative of a
deceased person, or against a person of unsound mind,
upon a claim or demand against the estate of such
deceased person or against such person of unsound mind,
cannot testify as to any matter of fact occurring before the
death of such deceased person or before such person
became of unsound mind (Sec. 23, Rule 130).

NOTE: THIS PROVISION IS ALREADY REMOVED UNDER

THE A.M. No. 19-08-15-SC.

The original Section 23 deals with a similar matter as that

contained under the amended Section 39. The old Section
23 was also known as the “Dead Man's Statute”, which
provides that if one party to the alleged transaction is
precluded from testifying by death, insanity, or other mental
disabilities, the surviving party is not entitled to the undue
advantage of giving his own uncontradicted and unexplained
account of the transaction. But before this rule can be
successfully invoked to bar the introduction of testimonial
evidence, it is necessary that:
1. The witness is a party or assignor of a party to a case or
persons in whose behalf a case is prosecuted.
2. The action is against an executor or administrator or other
representative of a deceased person or a person of unsound
mind;
3. The subject-matter of the action is a claim or demand
against the estate of such deceased person or against person
of unsound mind;
4. His testimony refers to any matter of fact which occurred
before the death of such deceased person or before such
person became of unsound mind. (Sunga- Chan v. Chua, G.R.
No. 143340, August 15, 2001)

The presence of the foregoing requisites under the old Section

23 renders the testimonial evidence inadmissible.
 Under the new rule, any statement of the deceased or the
person of unsound mind, may now be received in evidence,
provided that:

1. the statement was made upon the personal knowledge of

the deceased or the person of unsound mind;
2. it was made at a time when the matter had been recently
perceived by him or her, and while his or her recollection was
clear.

Such statement, however, is inadmissible if made under

circumstances indicating its lack of trustworthiness.

c. What is the reason for the exclusion?

It is designed to close the lips of the plaintiff when death has

closed the lips of the defendant, in order to remove from the
surviving party, the temptation to do falsehood and the
possibility of fictitious claims against the deceased (Tan v. CA,
G.R. No. 125861, September 9, 1998; Garcia v. Vda. De
Caparas, G.R. No. 180843, April 17, 2013).

In order to prevent perjury considering that the other party

cannot say anything anymore because he/she is dead.

NOTE: Inasmuch as the statutes are designed to protect the

interests of a deceased or incompetent person, they do not
operate to exclude testimony which is favorable to the
representative of such person. This is the conclusion, also,
where the representative is not a party (Herrera, 1999, citing
Jones on Evidence, 6th Ed., p. 632).

d. What are the requisites for the application of the Dead Man
Statute?

The requisites for the application of the Dead Man Statute are:
a. The defendant in the case is the executor or administrator
or a representative of the deceased or the person of
unsound mind;
b. The suit is upon the claim by the plaintiff against the estate
of said deceased or person of unsound mind;
c. The witness is the plaintiff, or an assignor of that party, or a
person in whose behalf the case is prosecuted; and
d. The subject of the testimony is as to any matter of fact
occurring before the death of such deceased person or
before such person became of unsound mind (Sec. 23,
Rule 130).

NOTE: THIS PROVISION IS ALREADY REMOVED UNDER

THE A.M. No. 19-08-15-SC.

e. When will the Dead Man Statute not apply?

The dead man statute does not apply on the following:

a. The rule has no application to mere witnesses (Reyes v.
Wells, 54 Phil. 102) who are neither parties to the case,
their assignors, nor persons in whose behalf the case is
prosecuted(Guerrero, et al. v. St. Clare’s Realty Co.,
Ltd., et al., G.R. No. 58164, September 2, 1983), nor to a
nominal party, nor to officers and stockholders of a plaintiff
corporation (Lichauco v. Atlantic Gulf & Pacific Co. of
Manila, 84 Phil. 330);
NOTE: The rule is exclusive and cannot be construed to
extend its scope by implication so as to disqualify persons
not mentioned therein. Mere witnesses who are not
included in the above enumeration are not prohibited from
testifying as to a conversation or transaction between the
deceased and a third person, if he took no active part
therein (Sanson v. CA, G.R. No. 127745, April 22, 2003).
b. When a counterclaim is set up by the administrator [or
executor or representatives] of the estate, the case is
removed from the operation of the dead man’s statute
(Riano, 2016);
c. The adverse party is competent to testify to transactions or
communications with the deceased or incompetent person
which were made with an agent of such person in cases in
which the agent is still alive and competent to testify. But
the testimony of the adverse party must be confined to
those transactions or communications which were had with
the agent (Herrera, 1999, citing Goñi v. CA, G.R. No. L-
27434, September 23, 1986);
d. In land registration cases instituted by the decedent’s
representatives, this prohibition does not apply as the
oppositors are considered defendants and may, therefore,
testify against the petitioner. This prohibition does not also
apply in cadastral cases since there is no plaintiff or
defendant therein Tongco v. Vianzon, G.R. No. 27498,
September 20, 1927);
e. The disqualification under this rule is waived if the
defendant does not timely object to the admission of such
evidence or testifies on the prohibited matters (Asturias v.
CA, G.R. No. L-17895, September 30, 1963) or cross-
examines thereon (Tongco v.Vianzon, supra);
f. The rule will not apply where the plaintiff is the executor or
administrator as representative of the deceased, or if the
plaintiff is the person of unsound mind (Riano, 2016);
g. Where the testimony is intended to prove a fraudulent
transaction of the deceased (Ong Chua v. Carr, G.R. No.
L-29512, January 17, 1929), provided such fraud is first
established by evidence aliunde (Babao v. Perez, G.R. No.
L-8334, December 28, 1957);
h. Negative testimony, that is, testimony that a fact did not
occur during the lifetime of the deceased (Mendezona v.
Vda. De Goitia, G.R. No. L-31739, March 11, 1930);
i. Testimony on the present possession by the witness of a
written instrument signed by the deceased (4 Martin, op.
cit., p. 164), as such fact exists even after the decedent’s
demise (Regalado, 2008);
 j. When the defendants, as heirs of the deceased, are sued in
their personal capacity (Go Chi Gun v. Co Cho, 96 Phil.
622); and
k. In an action against a partnership, plaintiff partners may
testify against a deceased partner (Fortis v. Gutierrez
Hermanos, 6 Phil. 100).

f. Who may be considered as a “representative’ in the Dead Man

Statute Rule (Ref: De Villanueva vs. CA/ G.R. No. L-27434
dated Sept. 23, 1986)

The heirs are may be considered the proper representative in

the Dead Man statute rule, not only because they succeeded
to the decedent's right by descent or operation of law, but more
importantly because they are so placed in litigation that they
are called on to defend which they have obtained from the
deceased and make the defense which the deceased might
have made if living, or to establish a claim which deceased
might have been interested to establish, if living.

g. How may an objection based on the Dead Man’s Statute be

waived?

An objection based on the Dead Man’s Statute be waived by:

1. Failing to object to the testimony;

2. Cross-examining the witness on the prohibited testimony; or
3. Offering evidence to rebut the testimony (Riano, 2016)

3. Hearsay Rule
a. What is hearsay evidence?

Hearsay evidence is a testimony that is not based on personal

knowledge of the person testifying. Hearsay evidence signifies
all evidence which is not founded upon the personal
knowledge of the witness from whom it is elicited.

Rule 130, Sec 37 (amended rule)

Sec. 37. Hearsay. – Hearsay is a statement other than one

made by the declarant while testifying at a trial or hearing,
offered to prove the truth of the facts asserted therein. A
statement is (1) an oral or written assertion or (2) a non-verbal
conduct of a person, if it is intended by him or her as an
assertion. Hearsay evidence is inadmissible except as
otherwise provided in these Rules.

b. What are the forms of hearsay evidence?

The forms of hearsay are:

a. In-Court-Hearsay Statements
These are assertions of facts by a witness based on his
own personal perception but the witness was not
subjected to the opportunity for cross examination.
 This usually occurs after a witness has testified during the
direct examination but the testimony becomes hearsay
because the witness refused to go back to court to be
cross-examined; or he dies, becomes incapacitated
mentally or physically, goes abroad, or where for any
cause not attributable to the adverse party, he was
prevented from cross-examining the witness.
b. Out-of-Court-Statements
These refer to statements or declarations by third persons
which are being used or referred to by a witness in order to
prove a fact. The phrase aptly describes statements or
declarations or conduct which were made elsewhere than
in the trial of the case where they are being used as
evidence.

3 kinds

1. The Non-Hearsay Statements also referred to as the

Independently relevant statements and therefore
admissible.

a). Statements the making of which are the very

fact in issue.

b). Statements which are circumstantial

evidence of the fact in issue

2. The Hearsay Statements which are inadmissible under

Section 36. (Sec 22 on the amended rules)

3. The Hearsay Statements but admissible as an

exception under Sections 37 to 47. (Sec 38 to 49 on the
amended version of the rules)

c. What is the Hearsay Rule?

The Hearsay Rule under Sec 37, Rule 130 is a provision

under the Rules of court which states that:

Sec. 37. Hearsay. – Hearsay is a statement other

than one made by the declarant while testifying at a
trial or hearing, offered to prove the truth of the facts
asserted therein. A statement is (1) an oral or written
assertion or (2) a non-verbal conduct of a person, if it is
intended by him or her as an assertion. Hearsay
evidence is inadmissible except as otherwise
provided in these Rules.

A statement is not hearsay if the declarant testifies at

the trial or hearing and is subject to cross-
examination concerning the statement, and the
statement is (a) inconsistent with the declarant’s
testimony, and was given under oath subject to the
penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition; (b) consistent with
 the declarant’s testimony and is offered to rebut an
express or implied charge against the declarant of
recent fabrication or improper influence or motive; or
(c) one of identification of a person made after
perceiving him or her. (n)

The hearsay rule bars the testimony of a witness who merely

recites what someone else has told him, whether orally or in
writing.

d. Why is hearsay evidence excluded?

Hearsay is excluded because of the following reasons:

1. The adverse party is not given an opportunity to

cross-examine (Herrera, 1999); and
2. The court is without opportunity to test the credibility
of hearsay statements by observing the demeanor of the
person who made them.

In criminal cases, its admission would be a violation of the

constitutional provision that the accused shall enjoy the right
of being confronted with the witnesses testifying against him
and to cross-examine them. Moreover, the court is without
opportunity to test the credibility of hearsay statements by
observing the demeanor of the person who made them.
(People v. Pruna, G.R. No. 138471, October 10, 2002)

e. What are the requisites of hearsay evidence?

The following are the requisites of hearsay:

1. There must be an out-of-court statement; and

2. The statement made out of court, is repeated and offered

by the witness in court to prove the truth of the matters
asserted by the statement. (Riano, 2016)

f. What is an independently relevant statement?

An independent relevant statement is a statement which are

relevant independently of whether they are true or not. They
are neither hearsay nor an exception to the hearsay rule as
the purpose thereof is not to prove the truth of the declaration
or document. (Estrada v. Desierto, supra). It merely proves
the fact that a statement was made and not the truth of the
fact asserted in the statement. (1999, 2005, 2009, 2010 Bar)

g. Exceptions to the Hearsay Rule:

i. What is a dying declaration?

A dying declaration is a declaration of a dying

person, made under the consciousness of an
 impending death, which may be received in any
case wherein his or her death is the subject of
inquiry, as evidence of the cause and
surrounding circumstances of such death. (Sec
38, Rule 130)

ii. What are requisites of a dying declaration?

The requisites of a dying declaration are:

1.The declaration is one made by a dying

person;

2.The declaration was made by said dying

person under a consciousness of his impending
death;

3.The declaration refers to the cause and

circumstances surrounding the death of the
declarant and not of anyone else;

4. The declaration is offered in a case wherein

the declarant’s death is the subject of the inquiry
(Geraldo v. People, G.R. No. 173608,
November 20, 2008);

5. The declarant is competent as a witness had

he survived (Ibid.);
6. That the statement is complete in itself –
“Doctrine of Completeness” (People v. De Joya,
G.R. No. 75028, November 8, 1991); and

7. The declarant should have died (if he

survives, his declaration may be admissible as
part of the res gestae). (Riano, 2016)

iii. Why is a dying declaration considered hearsay?

Dying declaration is considered hearsay

because the victim/declarant is already dead
hence the only available remedy is to rely on
the testimony of a witness who heard, read or
saw the dying declaration. This also to prevent
an injustice if the only evidence of the crime is
the dying declaration and yet it is excluded.

iv. Why is a dying declaration admissible?

Dying declaration is admissible by reason of

necessity and trustworthiness.

Necessity because the declarant's death

renders impossible his taking the witness stand,
and it often happens that there is no other
satisfactory evidence as to the cause of his
death; and trustworthiness because the
 declaration is made in extremity and every
motive of falsehood is silenced, and the mind is
induced by the most powerful considerations to
speak the truth. "A situation so solemn and so
awful as to be considered by the law as creating
an obligation equal to that which is imposed by
a positive oath in a court of justice." (G.R. No.
L-31782 December 14, 1979, Pp vs Lanza)

v. What does res gestae mean?

Res gestae refers to statements made by the

participants or the victims of, or the spectators
to, a crime immediately before, during, or after
its commission. These statements are a
spontaneous reaction or utterance inspired by
the excitement of the occasion, without any
opportunity for the declarant to fabricate a false
statement. An important consideration is
whether there intervened, between the
occurrence and the statement, any
circumstance calculated to divert the mind and
thus restore the mental balance of the
declarant; and afford an opportunity for
deliberation. (G.R. No. 208749
November 26, 2014, Pp vs Calungsag)

Res gestae literally means “things done”. It refers

to an event, an occurrence, a transaction,
whether due to the intentional or negligent acts of
a person, or an accident, or due to the action of
nature. All these events are set in a frame of
surrounding circumstances which serve to
emphasize the event or to make it standout and
appear clear and strong.

vi. What are included as parts of the res gestae?

Sec 44, Rule 130.

Sec. 44. Part of the res gestae. — Statements

made by a person while a startling occurrence
is taking place or immediately prior or
subsequent thereto, under the stress of
excitement caused by the occurrence 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 of
the res gestae. (42a)

vii. What is a spontaneous statement?

 A spontaneous exclamation is defined as "a
statement or exclamation made immediately
after some exciting occasion by a participant or
spectator and asserting the circumstances of
that occasion as it is observed by him.

The admissibility of such exclamation is based

on our experience that, under certain external
circumstances of physical or mental shock, a
stress of nervous excitement may be produced
in a spectator which stills the reflective faculties
and removes their control, so that the utterance
which then occurs is a spontaneous and sincere
response to the actual sensations and
perceptions already produced by the external
shock. Since this utterance is made under the
immediate and uncontrolled domination of the
senses, rather than reason and reflection, and
during the brief period when consideration of
self-interest could not have been fully brought to
bear, the utterance may be taken as expressing
the real belief of the speaker as to the facts just
observed by him."

In a manner of speaking, the spontaneity of the

declaration is such that the declaration itself may
be regarded as the event speaking through the
declarant rather than the declarant speaking for
himself. (G.R. No. 205888, August 22, 2018)

viii. What are the requisites for its admission?

There are three essential requisites to admit

evidence as part of the res gestae, namely:

(1) that the principal act, the res gestae, be a

startling occurrence;

(2) the statements were made before the

declarant had the time to contrive or devise a
falsehood; and

(3) that the statements must concern the

occurrence in question and its immediate
attending circumstances. (G.R. No. 208749
November 26, 2014; Pp vs Calungsag)

ix. Why is this admissible?

The admissibility of such exclamation is

based on our (human) experience that,
under certain external circumstances of
physical or mental shock, a stress of
nervous excitement may be produced in a
spectator which stills the reflective faculties
 and removes their control, so that the
utterance which then occurs is a
spontaneous and sincere response to the
actual sensations and perceptions already
produced by the external shock. Since this
utterance is made under the immediate and
uncontrolled domination of the sense, rather
than reason and reflection, and during the brief
period when consideration of self-interest could
not have been fully brought to bear," the
utterance may be taken as expressing the real
belief of the speaker as to the act just observed
by him." In a manner of speaking, the
spontaneity of the declaration is such that the
declaration itself may be regarded as the event
speaking through the declarant rather than the
declarant speaking for himself. Or, stated
differently, ". . . the events speak for
themselves, giving out their fullest meaning
through the unprompted language of the
participants. The spontaneous character of the
language is assumed to preclude the probability
of its premeditation or fabrication. Its utterance
on the spur of the moment is regarded, with a
good deal of reason, as a guarantee of its truth.
(G.R. No. 124676 May 20, 1998)

x. What is a verbal act?

“Verbal acts” is a type of res gestae which refer

to utterances which accompany some act or
conduct to which it is desired to give legal
effect; When such act has intrinsically no
definite legal significance, or only an ambiguous
one, its legal purport or tenor may be
ascertained by considering the words
accompanying it, and these utterances thus
enter merely as verbal part of the act. (UST
Reviewer 2018)

xi. What are the requisites for its admission?

The requisites for the admission of verbal acts

are:

a. The principal act to be characterized must

be equivocal
b. The equivocal act must be material to the
issue;
c. The statement must accompany the
equivocal act;
d. The statement gives a legal significance to
the equivocal act
(UST Reviewer 2018)
xii. Why is this admissible?

The reason for the admissibility of verbal acts is

that the motive, character and object of an act
are frequently indicated by what was said by the
person engaged in the act. (UST Reviewer
2018)

xiii. What is meant by “res inter alios acta alteri

nocere non debet”?

Res inter alios acta alteri nocere non debet literally

means things done between strangers ought not to
injure those who are not parties to them.
(Dynamic Signmaker Outdoor Advertising Services,
Inc. v. Potongan, G.R. No. 156589, June 27, 2005)

The reason for this rule:

On principle of good faith and mutual convenience,
a man’s own acts are binding upon himself and are
evidence against him. So are his conduct and
declarations. It would not only be rightly
inconvenient but also manifestly unjust, that a man
should be bound by the acts of mere unauthorized
strangers; and if a party ought not to be bound by
the acts of strangers, neither ought their acts or
conduct be used as evidence against him. (People
v. Guittap, G.R. No. 144621, May 9, 2003)

xiv. What is the res inter alios acta rule?

The res inter alios acta rule provides that the

rights of a party cannot be prejudiced by an act,
declaration, or omission of another.
Consequently, an extrajudicial confession is
binding only on the confessant and is not
admissible against his or her co-accused
because it is considered as hearsay against
them. (G.R. No. 191752 June 10,
2013; Pp vs CACHUELA and IBANEZ)

The rule has reference to extrajudicial

declarations. Hence, statements made in open
court by a witness implicating persons aside
from him are admissible as declarations from
one who has personal knowledge of the facts
testified to. (Riano, 2016)

The testimony of the accused against his co-

accused in open court is considered as
admissible testimony and not subject of the res
 inter alios acta rule since such testimony is
subject to cross examination.

xv. What are the two branches of the res inter alios
rule? Get all the terms for these branches.

Two branches of res inter alios acta rule

1. The rights of a party cannot be prejudiced by
an act, declaration, or omission of another (Sec.
29, Rule 130 - as per A.M. No. 19-08-15-SC)
(2003 Bar); and

2. Evidence that one did or did not do a certain

thing at one time is not admissible to prove that
he did or did not do the same or similar thing at
another time. (Sec. 35, Rule 130 - as per A.M.
No. 19-08-15-SC)

xvi. What are the exceptions to the first branch?

Give the requisites for their admission?

The exceptions to the first branch are:

a. Admission by co-partner or agent. (Sec.

30, Rule 130 as per A.M. No. 19-08-15-SC)
(2003 Bar)
1. The act or declaration of a partner
or agent authorized by the party to make
a statement concerning the subject, or
within the scope of his or her authority,
2. The declaration or act of the
partner or agent must have been made or
done during the existence of the
partnership or agency; and
3. The existence of the partnership or
agency is proven by evidence other than
the declaration or act of the partner or
agent.
b. Admission by a co- conspirator (Sec. 31,
Rule 130 as per A.M. No. 19-08-15-SC);
1. The declaration or act be made or
done during the existence of conspiracy;
2. The declaration or act must relate
to the conspiracy; and
3. The conspiracy must be shown by
evidence other than such declaration or
act.
c. Admission by privies. (Sec. 32, Rule 130).
1. There must be an act, declaration,
or omission by predecessor-in-interest;
2. The act, declaration, or omission of
the predecessor must have occurred
while he was holding the title to the
property; and
3. The act, declaration, or omission
must be in relation to the property
xvii. What is an adoptive admission?

It 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. A third person’s statement becomes
the admission of the party embracing or
espousing it. Adoptive admission may occur
when a party:

1. Expressly agrees to or concurs in an oral

statement made by another;
2. Hears a statement and later on essentially
repeats it;
3. Utters an acceptance or builds upon the
assertion of another;
4. Replies by way of rebuttal to some specific
points raised by another but ignores further
points which he or she has heard the other
make; or
5. Reads and signs a written statement made
by another. (Republic v. Kendrick Development
Corp., G.R. No 149576, August 8, 2006)

xviii. What is the difference between adoptive

admission and silent 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).
While admission by silence is an act or
declaration made in the presence and within the
hearing or observation of a party who does or
says nothing when the act or declaration is such
as naturally to call for action or comment if not
true, and when proper and possible for him or
her to do so, may be given in evidence against
him or her. (Sec 33, Rule 130 as per A.M. No.
19-08-15-SC)

xix. Why are these admissible in evidence?

The admissibility of the admission by evidence

is based on the human and natural instinct to
resist, rebut, deny or object to untrue
statements about one’s life, family, rights,
property or interests. The failure to do so is an
implied admission of the truth of the statement.
“QUI TACET CONSENTIRE VIDDETUR”.
 Hence, he who remains silent when he ought to
speak cannot be heard to speak when he
should be silent.

The admissibility of adoptive admission is

based on the fact that a party adopted the
statements as his own.

xx. What are the exceptions to the second branch?

****NOT SURE****
A. To prove specific intent or knowledge: this
applies to cases where guilty knowledge or
intent is an essential element or where the
defense raised is good faith, mistake of fact,
or accident. There must however be a
rational similarity between the condition
which gave rise to the past and present
conditions.
B. To prove identity i.e. where there is doubt as
to a person’s identity or where identity in
issue
C. To prove a plan, system, design, Modus
Operandi.
D. To prove habit, custom, usage or practice.
(Source:https://batasnatin.com/law-
library/remedial-law/evidence/1089-rule-130-
rules-of-court-admissibility-of-evidence.html)

xxi. For what purposes may a previous conduct be

admitted in evidence?

A previous conduct may be admitted in

evidence to prove a specific intent or
knowledge, identity, plan, system, scheme,
habit, custom or usage, and the like. (Sec 35,
Rule 130 as per A.M. No. 19-08-15-SC)

Evidence of similar acts or occurrences

compels the defendant to meet allegations that
are not mentioned in the complaint, confuses
him in his defense, raises a variety of relevant
issues, and diverts the attention of the court
from the issues immediately before it. Hence,
the evidentiary rule guards the practical
inconvenience of trying collateral issues and
protracting the trial, and prevents surprise or
other mischief prejudicial to litigants. (Cruz v.
CA, G.R. No. 126713, July 27, 1998)

xxii. Why are these admissible in evidence?

These are admissible in evidence as they prove

a specific intent or knowledge, identity, plan,
system, scheme, habit, custom or usage, and
 the like. (Sec 35, Rule 130 as per A.M. No. 19-
08-15-SC)

xxiii. What is a declaration against interest?

A declaration against interest is an ante litem

motam statements made by a person who is
neither a party nor in privity with a party to the
suit. Such are considered secondary evidence
and admissible only when the declarant is
already dead or unavailable to testify as a
witness and may be admitted against himself or
successors-in-interest and against third
persons.

The declaration made by a person deceased or

unable to testify against the interest of the
declarant, if the fact asserted in the declaration
was at the time it was made so far contrary to
the declarant's own interest that a reasonable
person in his or her position would not have
made the declaration unless he or she believed
it to be true, may be received in evidence
against himself or herself or his or her
successors in interest and against third
persons. A statement tending to expose the
declarant to criminal liability and offered to
exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the
trustworthiness of the statement. (Sec 40, Rule
130 as per A.M. No. 19-08-15-SC)

xxiv. What are the requisites for its admissibility?

The following are the requisites for admissibility

of a declaration against interest:

a. The declarant is dead or unable to testify;

b. Declaration relates to a fact against the
interest of the declarant;
c. At the time he made said declaration, he was
aware that the same was contrary to his
interest; and
d. Declarant had no motive to falsify and
believed such declaration to be true.

xxv. Why is this admissible?

This is admissible for reasons of:

a. Necessity - as such declaration, act, or
omission is frequently the only mode of
proof available; and
b. Trustworthiness - presumed that men will
neither falsify nor commit mistakes when
such falsehood or mistake would be
prejudicial to their own pecuniary interest,
 and because of the fact that any fraudulent
motive for making the statement may be
shown.

xxvi. What is pedigree?

The word "pedigree" includes relationship,

family genealogy, birth, marriage, death, the
dates when and the places where these facts
occurred, and the names of the relatives. It
embraces also facts of family history intimately
connected with pedigree. (Sec 41, Rule 130 as
per A.M. No. 19-08-15-SC)

xxvii. Give the requisites for the admissibility of a

declaration about pedigree.

Requisites for the admissibility of acts or

declarations about pedigree
1. The declarant is dead or unable to testify;
2. The pedigree should be in issue;
3. The declarant must be a relative of the
person whose pedigree is in question, either by
birth or marriage;
4. The declaration must be made ante litem
motam or before the controversy occurred; and
5. The relationship between the declarant and
the person whose pedigree is in question must
be shown by evidence other than such act or
declaration. (Tecson v. COMELEC, G.R. No.
161434, March 3, 2004)

xxviii. Give the requisites for the admissibility of

reputation regarding pedigree.

Requisites for the admissibility of family

reputation or tradition regarding pedigree

1. There is controversy in respect to the

pedigree of any member of the family;
2. The reputation or tradition of the pedigree of
the person concerned existed previous to the
controversy;
3. The statement is about the reputation or
tradition of the family in respect to the pedigree
of any member of the family; and
4. The witness testifying to the reputation or
tradition regarding pedigree of the person
concerned must be a member of the family of
said person either by consanguinity, affinity or
adoption. (Sec. 42, Rule 130 as per A.M. No.
19-08-15-SC)

xxix. Give the requisites for the admissibility of

tradition regarding pedigree.
 Requisites for the admissibility of family
reputation or tradition regarding pedigree

1. There is controversy in respect to the

pedigree of any member of the family;
2. The reputation or tradition of the pedigree of
the person concerned existed previous to the
controversy;
3. The statement is about the reputation or
tradition of the family in respect to the pedigree
of any member of the family; and
4. The witness testifying to the reputation or
tradition regarding pedigree of the person
concerned must be a member of the family of
said person either by consanguinity, affinity or
adoption. (Sec. 42, Rule 130 as per A.M. No.
19-08-15-SC)

xxx. What is reputation?

Reputation is the definite opinion of the

community in which the fact to be proved is
known or exists. It means the general or
substantially undivided reputation, as
distinguished from a partial or qualified one,
although it need not be unanimous. (Regalado,
2008)

NOTE: As a general rule, the reputation of a

person should be that existing in the place of
his residence; it may also be that existing in the
place where he is best known. (Ibid.) Character
is what a man is, and reputation is what he is
supposed to be in what people say he is. (Lim
v. CA, G.R. No. 91114, September 25, 1992)

xxxi. How is reputation different from character?

Reputation is the definite opinion of the

community in which the fact to be proved is
known or exists. It means the general or
substantially undivided reputation, as
distinguished from a partial or qualified one,
although it need not be unanimous. (Regalado,
2008); while character is the sum total of all the
traits of a person which distinguishes the
person from others. They include the physical,
mental, emotional and psychological attributes
of a person. These maybe genetically acquired,
or inherited or in-born, such as a person’s sex,
height, physical appearance. Or they may be
acquired and developed such as personality
and behavioral characteristics due to virtues or
vices, such as being bad, immoral, honest, lazy,
 anti-social or friendly. Character is what a
person truly is.

Reputation on the other hand is the estimation

of a person by other people, or what people
think a person is. Character is not always one’s
reputation as people may pretend and present a
public face or image different from what they
are in private. One may have a good reputation
but a bad character and vice-versa.

xxxii. What is tradition?

This refers to the knowledge or beliefs of a

certain family handed from one generation to
another, or to practices or customs which are
consistently observed or engaged in by said
family. A member of said family is the one
testifying to these matters.

xxxiii. What are the requisites for the admission of

common reputation?

Common reputation is the definite opinion of the

community in which the fact to be proved is
known or exists. It means the general or
substantially undivided reputation, as
distinguished from a partial or qualified one,
although it need not be unanimous. (Regalado,
2008)
Requisites for admissibility of common
reputation

1. The facts must be of public or general

interest or respect in marriage or moral
character;
2. The common reputation must have been
ancient, i.e. 30 years old;
3. The reputation must have been one formed
among a class of persons who were in a
position to have some sources of information
and to contribute intelligently to the formation of
the opinion; and
4. The common reputation must have been
existing previous to the controversy.

xxxiv. What are the requisites for the admission of

entries in official records?

The requisites for the admission of entries in the

official records are:

1. Entries were made by a public officer in the

performance of his duties or by a person in the
performance of a duty especially enjoined by
law;
 2. Entrant had personal knowledge of the facts
stated by him or such facts were acquired by
him from reports made by persons under a legal
duty to submit the same; and
3. Such entries were duly entered in a regular
manner in the official records. (Sec 46, Rule
130 as per A.M. No. 19-08-15-SC.)

xxxv. What are the requisites for the admission of

commercial lists?

Requisites for the admissibility of commercial

lists and the like

1. Statements of matters of interest to persons

engaged in an occupation;
2. Statements must be contained in a list,
register, periodical, or other published
compilation;
3. Compilation is published for use by persons
engaged in that occupation; and
4. Such is generally relied upon by them.

xxxvi. Give five examples of evidence which are

similar to commercial lists.

The following are examples of evidence which

are similar to commercial list:

1. Trade journals reporting current prices and

other market data;
2. Mortality tables compiled for life insurance;
3. Abstracts of title compiled by reputable title
examining institutions or individuals; or
4. Business directories, animal pedigree
registers, and the like (Francisco, 1992)
5. Inventory stock and others

xxxvii. What is a learned treatise?

These are published treatises, books, journals

on a subject of history, sciences, law and arts,
which were carefully researched or subjected to
scrutiny and investigation. The authors are
scholars or experts on the subject or it is a
group of researchers. (Sec 48, Rule 130 as per
A.M. No. 19-08-15-SC)

xxxviii. When is a learned treatise not considered

hearsay?

Learned treatise are not considered hearsay as

the learned writers have no motive to
misrepresent due to the awareness that his
work will be carefully scrutinized by the learned
 members of the profession and that he shall be
subject to criticisms and be ultimately rejected
as an authority on the subject matter if his
conclusions are found to be invalid.

xxxix. What are the requisites for the admission of a

learned treatise?

Requisites for the admissibility of learned

treatises

1. When the court can take judicial notice of

them; or
2. When an expert witness testifies that the
author of such is recognized as expert in that
profession. (Sec. 48, Rule 130 as per A.M. No.
19-08-15-SC)

xl. Give 5 instances, not covered by the given

exceptions, when hearsay evidence may be
allowed.

Hearsay evidence may be allowed also in the

following cases:
1. Hearsay exception in child abuse cases. (Sec
28, RA 7610)

2. Hearsay rule in writ of amparo (G.R. No.

182498 February 16, 2010)

xli. What is a confession?

Confession is the declaration of an accused

acknowledging his or her guilt of the offense
charged, or of any offense necessarily
included therein, may be given in evidence
against him or her. (Rule 130, Sec 34)

xlii. What are the different kinds of confession?

The 2 kinds of confession are:

a. Judicial confession
One made by the accused before an open
court in which the case is pending and in the
course of legal proceedings therein and, by
itself, can sustain conviction and is
admissible against one’s co-accused.
b. Extra judicial confession
One made in any other place or occasion
other than the court where the case is
pending and cannot sustain a conviction
unless corroborated by evidence of corpus
delicti. It is generally binding only upon the
confessant and is not admissible against his
co-accused. It is governed by Sec. 33 of
Rule 130. (Regalado, 2008)
 NOTE: If the accused admits having
committed the act in question but alleges a
justification therefor, such as absence of
criminal intent, the same is merely an
admission. (Ibid.)

xliii. What are the requisites of a valid extrajudicial

confession?

A valid extrajudicial confession has the

following requisites:
a. It must involve an express and categorical
acknowledgement of guilt (U.S. v. Corrales,
28 Phil. 362);
b. Facts admitted must be constitutive of a
criminal offense (U.S. v. Flores, 26 Phil.
262);
c. It must have been given voluntarily (People
v. Nishishima, 57 Phil. 26);
d. It must have been intelligently made (Bilaan
v. Cusi, G.R. No. L-18179, June 29, 1962),
the accused realizing the importance or
legal significance of his act (U.S. v. Agatea,
40 Phil. 596);
e. There must have been no violation of Sec.
12, Art. III, 1987 Constitution (Regalado,
2008); and
NOTE: A confession to a person, who is not
a police officer, is admissible in evidence.
The declaration acknowledging his guilt of
the offense charged, or of any offense
necessarily included therein, may be given
in evidence against the declarant. Such
admissions are not covered by Secs. 12 (1)
and (3), Article III, 1987 Constitution,
because they were not extracted while he
was under custodial investigation. (People
v. Davao, et al., G.R. No.174660, May 30,
2011)
f. It must be in writing and signed by such
person in the presence of his counsel or in
the latter’s absence, upon a valid waiver and
in the presence of any of the parents, elder
brothers and sisters, his spouse, the
municipal mayor, the municipal judge,
district school supervisor or priest or minister
of the gospel as chosen by him. [Sec. 2(d),
R.A. 7438]

xliv. What are interlocking confessions?

Interlocking confessions are extrajudicial
confessions independently made without
collusion which are identical with each other in
their essential details and corroborated by other
evidence against the persons implicated.
 (People v. Mulit, G.R. No. 181043, October 8,
2008)

4. Opinion Rule

a. What is an opinion?

A person’s thought, belief, or inference, especially a witness’s

view about facts in dispute, as opposed to personal
knowledge of the facts themselves. (Black’s Law Dictionary,
2004)

GR: The opinion of a witness is not admissible. The witness

must testify to facts within their knowledge and may not state
their opinion, even on their cross- examination.

XPNs: 1. Opinion of expert witness; and

2. Opinion of ordinary witnesses.

NOTE: Opinion testimony involving questions of law or the

ultimate fact in issue is not admissible.

Concept of an opinion as evidence: This consists of the

conclusion or inference of a witness on the existence or non-
existence of a face in issue. The opinion maybe based on
facts personally known to him or as relayed to him by others.

b. What is the difference between an opinion and a conclusion?

A conclusion results from a thought process based on logic

combined with information. A poorly thought-out conclusion
has either poor logic such as sophism or poor information
such as disinformation or the illusion of knowledge.

A person’s thought, belief, or inference, especially a witness’s

view about facts in dispute, as opposed to personal
knowledge of the facts themselves.

An opinion is a substitute for conclusion.

c. What is the difference between an opinion and an inference?

An Opinion expressed an evaluation based on a personal

judgment or belief which may not be verifiable.

Inference is a logical conclusion or a legitimate implication

based on factual information.

d. Why is an opinion generally not admissible?

Generally, opinions are not admissible because:

A. The making of an opinion is the [proper function of the

court. The witness is supply the facts and for the court to form
an opinion based on these facts.
 B. Opinions are not reliable because they are often influenced
by his own personal bias, ignorance, disregard of truth, socio-
cultural background, or religion, and similar personal factors.
Thus there may be as many diverse opinions as there are
witnesses.

C. The admission of opinions as evidence would open the

floodgate to the presentation of witnesses testifying on their
opinion and not on facts.

e. When is an opinion admissible?

An opinion is admissible if made by an expert witness (Rule

130, Sec 52) or by an ordinary witness (Rule 130, Sec 53).

Sec. 52. Opinion of expert witness. – The opinion of a

witness on a matter requiring special knowledge, skill,
experience, training or education, which he or she is shown to
possess, may be received in evidence. (49a)

Sec. 53. Opinion of ordinary witnesses. – The opinion of a

witness, for which proper basis is given, may be received in
evidence regarding –

(a) The identity of a person about whom he or she has

adequate knowledge;
(b) A handwriting with which he or she has sufficient
familiarity; and
(c) The mental sanity of a person with whom he or she is
sufficiently acquainted.

The witness may also testify on his or her impressions of the

emotion, behavior, condition or appearance of a person. (50a)

In addition:

On ordinary matters known to all men of common perception,

such as the value of ordinary household articles (Galian vs.
State Assurance Co., 29 Phil. 413).

5. Character Evidence

a. What is character?

Character is the aggregate of the moral qualities which belong

to and distinguish an individual person; the general result of
one’s distinguishing attributes. (Black’s Law Dictionary, 2004)

Character is the sum total of all the traits of a person which

distinguishes the person from others. They include the
physical, mental, emotional and psychological attributes of a
person. These maybe genetically acquired, or inherited or in-
born, such as a person’s sex, height, physical appearance. Or
they may be acquired and developed such as personality and
behavioral characteristics due to virtues or vices, such as
being bad, immoral, honest, lazy, anti-social or friendly.
 Character is what a person truly is.

b. Why character evidence generally not admissible?

Character evidence is generally not admissible as character is

highly irrelevant in determining a controversy. If the issues were
allowed to be influenced by evidence of the character or reputation
of a party, the trial would have the aspect of a popularity contest
rather than a factual inquiry into the merits of the case. After all the
business of the court is to try the case and not to try the man for a
very bad man may have a very good case, in much the same
manner that a very good man may have a very bad case.

c. When is character evidence allowed?

Character evidence is allowed under the following:

a. In Criminal Cases:
1. The character of the offended party may be proved
if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.
2. The accused may prove his or her good moral
character, pertinent to the moral trait involved in the
offense charged. However, the prosecution may not prove
his or her bad moral character unless on rebuttal.
b. In Civil Cases:

Evidence of the moral character of a party in a civil case is

admissible only when pertinent to the issue of character
involved in the case.

c. In Criminal and Civil Cases:

Evidence of the good character of a witness is not
admissible until such character has been impeached.

In all cases in which evidence of character or a trait of

character of a person is admissible, proof may be
made by testimony as to reputation or by testimony in
the form of an opinion. On cross-examination, inquiry
is allowable into relevant specific instances of conduct.

In cases in which character or a trait of character of a

person is an essential element of a charge, claim or
defense, proof may also be made of specific instances
of that person’s conduct. (Sec 54, Rule 132)

d. What are rape shield laws?

Rape shield laws are statures which limit the ability of the
defendant’s counsel to introduce the accuser’s sexual history as
evidence during a rape trial and therefore can prevent the accuser
from being discredited by information that is not relevant to the
defendant’s guilt or innocence.
As defined under Sec 6 of Republic Act 8505:

Sec. 6. Rape shield: In prosecutions 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.

e. What is a sexual abuse shield?

Sexual abuse shield is a rule stating the inadmissibility in any

criminal proceeding involving alleged child sexual abuse of the
following:
(1) Evidence offered to prove that the alleged victim engaged in
other sexual behavior; and
.
(2) Evidence offered to prove the sexual predisposition of the
alleged victim.

Exception:

Evidence of specific instances of sexual behavior by the alleged

victim to prove that a person other than the accused was the
source of semen, injury, or other physical evidence shall be
admissible. (Sec 30, Republic Act No. 7610)