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PART IV it?

No, that is clear direct evidence as distinguished from


RULES OF EVIDENCE circumstantial evidence.

RULE 128 Circumstantial evidence is that wherein there is one set of


circumstances and based on those circumstances, you will derive a
General Provisions conclusion. Although, maybe, you haven’t seen a person stab B but
because you saw Mr. X in possession of a murder weapon and that his
SECTION 1. Evidence defined. — Evidence is the means, sanctioned shirt is bloody and that he came from where Mr. B was found
by these rules, of ascertaining in a judicial proceeding the truth respecting thereafter, the circumstances would point to that fact that he
a matter of fact. (1) assaulted the person. That is direct as distinguished from
circumstantial evidence.
Evidence is a part of a proceeding (i.e. civil, crim, spec pro), NOT a
proceeding Primary evidence is that would force the greatest certainty of the
Proof is the result. fact in question. Example of primary evidence on document is the
Evidence is the means to prove the facts. original. When the content of the document is the subject of the
inquiry then the original should be presented for the primary evidence
Facts + Evidence = Truth (proven) there is the original. If the original document is not available could you
present a copy, a recital of contents of some documents or witnesses
Court has no choice but to rely on evidence with the hope that truth in that order? Yes you could, but not so fast. You will have to establish
shall be ascertained. first either that it was lost or destroyed without bad faith on the part
of the offeror or number two that it is in the possession of the adverse
There is a need to qualify. party and despite notice he refuses to surrender. So, the rule is
primary is the best evidence that you could present to prove a fact, in
When you handle a case, you always talk of propositions. Then, to case of a document, the original. But for testimonial evidence like the
establish your allegations, you always use and say evidence. witnesses, the primary evidence there is the person who had personal
knowledge. He, first and foremost is competent, he is able to perceive
So, evidence is the means to prove the facts. If you are able to and in perceiving he could make known his perception to another and
connect your fact in relation to the evidence you will present, then more than his competency is that he has personal knowledge.
you are able to prove it, you were able to ascertain the truth of it.
As distinguished from secondary evidence on testimonial evidence,
So, in all cases there should be a fact or an allegation to fortify secondary evidence is any of the exemptions under the hearsay
evidence, but that is not as simple as that because under Section 3, rule like a dying declaration that is really a secondary evidence, why?
evidence is admissible when (1) it is relevant to the issue and (2) not The dying person did not sit on the stand, it was the person who
excluded by the law or the Rules. received the information or the recipient who will testify on the
witness stand. So, that it is a requirement that the dying man be
Evidence may be relevant but is excluded all together by the rules. competent if he were alive. If he was brought to the witness stand, he
was able to perceive and in perceiving he could make known his
SO, you are not able to prove anything. You are not able to ascertain perception to others. That’s just an example of secondary evidence.
the truth that you would want to ascertain. The rest of the exemption on hearsay would fall under that.

Evidence generally are Object, Documentary, Testimonial Evidence. Positive evidence is when the witness affirms that the fact did or did
not occur. So, he is quite categorical to say that it did or did not occur.
Under Rule 130, it is object, documentary and testimonial evidence. As distinguished from negative, when the witness states that he did
not see or know the occurrence of the fact. Meaning that he was there
Direct evidence is that which tends to establish a fact without any at the place where the crime happened, he wouldn’t say that I didn’t
inference or presumption. Example: I saw Mr. X stab B. That is a direct see but says that he did not notice anything.
evidence. Do you need to infer from it? Do you need to presume from

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Corroborative evidence is an evidence of a different kind and rebuttal? If the plaintiff has rebuttal, the defendant will have to meet
character tending to prove the same fact. Example: To establish the the rebuttal of the plaintiff; that is sur-rebuttal.
death of Mr. B, I could present testimonial witnesses of persons who
saw the commission of the death, that’s one kind of evidence. What’s What is an expert evidence? Expert evidence is the testimony of a
the other kind of evidence under that you would present, the death person who has special skill, experience, training, and the like. Now,
certificate. It is of a different kind and nature but it would establish does it mean that for a person to be an expert, he should be a
one and the same fact which is the death. Cumulative is that the graduate of a school or have reached a master’s degree? No. That’s
nature of evidence is of the same kind and character. Example: Mr. X why the law says that there should be a certain level of expertise
barged into this auditorium and stabbed one of the students. Could arising from experience, training, or special skill. The law gives
Ms. Aquitaña testify? Could Ms. Saldaña testify? Could Mr. Ong testify? premium on these things.
All those are cumulative because they are of the same nature and
character. Documentary evidence are writings or words, numbers, figures,
letters contained in a material. That blank wall, there are writings on
Now, what is the difference between relevant and irrelevant evidence? that wall about the activities for next month, let us say, of Mr. Ong. Is
Evidence is relevant when it tends to establish the probability or that a documentary evidence? If is intends to establish the contents
improbability of the fact in issue. However, some authorities use thereof or the writings, even if it was in the wall, it is a documentary
relevancy and materiality interchangeably. evidence. But if it intends to establish that there is a graffiti, the wall
is merely an object evidence.
What do you mean by competent evidence? Competent means that
it is not excluded by the rules. So, it applies to testimonial, What about testimonial evidence? If you are to read the Rules, this
documentary or object. Sir, how is that? Let us say object, if it was starts from section 20 of Rule 130. Although, of course, the previous
obtained from an illegal search. Although it is relevant, if it was provisions would have discussed the concept of testimonial evidence
obtained from an illegal search could it be presented in evidence? It in the light of evidence. Testimonial evidence is the testimony of a
could be relevant but it is excluded by the Rules. In testimonial witness who sits on the stand. Now, should the witness be competent?
evidence, it is the same. I may be able to testify. I could testify but I Yes. Although if he is competent but he does not have personal
may not be competent because when I allegedly perceived the knowledge of the facts that he would testify on, would you object to
commission I was insane. So, it is excluded by the Rules. The same his being presented? Yes, because his testimony would be hearsay. So
way as in documentary. The contents of which are the subject of the long as it would not fall under any of the exemption.
inquiry and you are presenting a photocopy without establishing the
need for presenting the secondary evidence, then even if it is What is substantial evidence? Substantial evidence is that amount
relevant, it cannot be accepted because it is not competent evidence. of evidence which a reasonable mind would accept. Substantial
evidence applies mostly in administrative cases. Because in criminal
Now, what is rebuttal and sur-rebuttal? When do you do a rebuttal cases, we have proof beyond reasonable doubt. In civil cases, we have
evidence or a sur-rebuttal? A rebuttal is made after the defendant preponderance of evidence. Although in civil cases, the number of
closes his presentation of evidence. And who will conduct the witnesses would not tilt the scale of justice, but it has certain
rebuttal? It will be the plaintiff on the new matters presented by the significance in terms of persuasive effect to the court.
defendant. So, why is there a need for rebuttal? Because the plaintiff
who has the opportunity to present his evidence on the first instance What about disputable evidence as against conclusive evidence?
cannot now meet the new matter presented by the defendant. For Disputable is that you will present an evidence to contradict or
example, alibi, so he presented different documents, different controvert while a conclusive evidence is that which you do not have
witnesses. Of course, the plaintiff wants to meet those new matters in to contradict or controvert.
a rebuttal. Is rebuttal a matter of right? No, it is subject to the
discretion of the court, if the court deems it fit for you to conduct a Distinguish:
rebuttal evidence. Based on experience, judges don’t usually allow a
rebuttal so that if you could do a good cross-examination of the Admissibility of evidence Weight of evidence
defendant’s witnesses, do so. Aside from impeaching him, you should Pertains to the ability of the Pertains to the effect of
also try to elicit facts during cross examination. Now, what is sur- evidence to be allowed and evidence admitted

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accepted subject to its + did/did not happen; better
relevancy and competence - I don’t know, I didn’t see; use it if it contradicts + evidence
Substantive essence or The probative value of evidence
characteristic feature of which the court may give to Primary v Secondary
evidence as would make it admit after complying with the
worthy of consideration by the rules of relevancy and Primary is the best; original
court before its admission competency Secondary is inferior; substitute; lost or in possession of adverse party

Proof Evidence Presumption – facts give rise to an inference


Effect and result of evidence Medium of proof e.g. commission of an offense gives rise to the presumption of
End Result Means to the end innocence

Conclusive – incontrovertible; once facts (circumstances are


Factum probans – the evidentiary fact by which the factum established) are not destroyed, becomes conclusive evidence
probandum is to be established; material evidencing the proposition,
existent, and offered for the consideration of the tribunal Corroborative – additional evidence of a different kind and character
tending to prove the same point
Factum probandum – the ultimate fact sought to be established;
proposition to be established, hypothetical, and that which one party Cumulative – evidence of the same kind and character as that already
affirms and the other denies given, and tends to prove the same proposition
Factum probandum Factum Probans Fact – thing, event, occurrence
Proposition to be established Material evidencing the
proposition Facts in issue – disputed; no agreement
Conceived of as hypothetical; Conceived of for practical
that which one party affirms purposes as existent, and is Factual issue v Legal issue
and the other denies offered as such for the e.g. did x stab y? (factual) is he liable for homicide? (legal)
consideration of the court
Competent – relevant + not excluded by law/Rules; very CORE of
Notes: evidence

Direct Evidence – actual perception Material – may not be directly related to the fact in issue, but material
People v Aguinaldo – rape case; daughter charged his father with rape e.g. whether x purchased a knife in relation to a case of stabbing
during night time when they slept beside each other; defense: denial,
brother’s testimony that sister is 100% liar, medical report from the Rebuttal – explain, repel, counteract/disprove facts given in evidence
PNP that hymen was intact by the adverse party

Physical v Testimonial – what should prevail? (what is important is the Sur-rebuttal – usually available when rebuttal is allowed in the court’s
result) Physical Evidence prevails. discretion

Object Evidence – wall, photograph of the wall Presentation of Evidence:

Documentary Evidence – graffiti on the wall since the inquiry is on the Prosecution Accused
writings Witnesses: Witnesses:
1. police officer 1. accused
Positive v Negative 2. eye witness 2. person who affirms alibi
3. medico-legal that accused stayed at his

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house CA – original action, new trial (ground: NDE) -> exception: conducts
Since alibi is a new matter, SC Circular: Records of PI may be hearing
prosecution asks that it may be elevated
allowed to present rebuttal What varies is the quantum of proof R133
evidence. (Modes of Discovery)
It is new to the theory of the Rules of evidence distinguished
prosecution. Civil Case Criminal case
Party attends by accord Accused attends by compulsion
It is NOT a matter of right; subject No presumption as to either party Presumption of innocence attends
to the exercise of court’s the accused
discretion so you have to An offer of compromise does not, An offer of compromise is an
convince it that it is a NEW as a general rule, amount to an implied admission of guilt
matter! admission of liability
Preponderance of evidence Proof beyond reasonable doubt
Sur-rebuttal of defense is a matter of right once rebuttal is given.
Compromise S27 R130
Example: civil action: contract of sale of a car @ P1M - civil case: any stage; quasi-delict can be compromised

Seller Buyer offer to pay hospitalization – encouraged but NOT admissible


There’s a new matter presented - failed to pay
as to the absence of sale. - that there was NO sale, quasi-judicial bodies: Rules of Evidence NOT strictly applied
only a loan (HLURB, DARAB, NLRC)
But sur-rebuttal NOT available if
NOT raised in the pleadings! premise: like the car? buy it! Sec. 3. Admissibility of evidence. — Evidence is admissible when it is
relevant to the issue and is not excluded by the law or these rules. (3a)
Remedy?
This is one of the provisions which has been so abused. If it is to be
S5 R10 Amend pleadings to admissible, it should be relevant and not excluded by the rules. The
conform with evidence fact of relevancy is one, the fact that it is excluded by the rules, you
have to contend with Rule 130 and other pertinent rules like other
Object – addressed to the senses of the court Constitutional provisions on searches and arrest on custodial
investigation. If you do not follow the requirements of custodial
Documentary – writing, NOT material investigation on an in-custody procedure, even if it is relevant, if he
admitted that he committed the offense but in the absence of counsel
Testimonial – witness S20 R130 is it relevant? Yes, it may be relevant but it is excluded by the Rules.

Substantial – degree of evidence before quasi-judicial bodies Custodial interrogation means questioning initiated by law
enforcement officers after a person has been taken into custody or
Expert – knowledge, skill, experience, training S48 R130 otherwise deprived of his freedom in some significant way so if there
is some restriction on his freedom to do, then it is already a custodial
Sec. 2. Scope. — The rules of evidence shall be the same in all courts investigation. And if he is invited, will it still fall under custodial
and in all trials and hearings, except as otherwise provided by law or these investigation? Take note of Republic Act 7438, an act defining certain
rules. (2a) rights of persons arrested, detained or under custodial investigation
as well as the duties of the arresting detainee or arresting officers.
e.g. Best Evidence Rule Thus, an accused on board a police vehicle on the way to the police
station is already under custodial investigation and therefore should
be accorded his rights under the constitution. So even in a situation

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that you are inside a police car so long as your freedom to move has dectaphone or walkie-talkie or tape recorder, or however
been restricted, you are already in custody. So, what matters here is otherwise described:
your restriction to move. So, if you were invited and the question is
It shall also be unlawful for any person, be he a participant
such that it is no longer as to a general questioning on event or
or not in the act or acts penalized in the next preceding
circumstances but is now pointing into a particular person as to his
sentence, to knowingly possess any tape record, wire record,
commission of the offense, then custodial investigation has set in.
disc record, or any other such record, or copies thereof, of any
communication or spoken word secured either before or after
RA 7438 has expanded the definition of custodial investigation into
the effective date of this Act in the manner prohibited by this
the practice of issuing invitations to a person. What is this invitation?
law; or to replay the same for any other person or persons; or
You get a letter from the police station. Who has been invited by the
to communicate the contents thereof, either verbally or in
police? We have a colonel? Oh, what can you say colonel? What do
writing, or to furnish transcriptions thereof, whether complete
you do when you invite? (Colonel: We are no longer allowed to do
or partial, to any other person: Provided, That the use of such
that, sir.) How do they do it before? (Colonel: Before, they usually
record or any copies thereof as evidence in any civil, criminal
write letters inviting person. That’s even more decent but for ordinary
investigation or trial of offenses mentioned in section 3
criminals what they do is they knock on their door, then “magandang
hereof, shall not be covered by this prohibition.
hapon po. I am a police officer. Pwede ho ba namin kayong
maimbitahan sa istasyon?” That’s okay, up to that point because you Unlawful acts:
are only being invited but the problem is, when they are already in the
police station, what happened? The aggrieved party is already there. 1) any person, not being authorized by all the parties to any
What would the policeman, with all due respect…I don’t know if your private communication or spoken word, to tap any wire or
classmate would agree with me, what would they do? Okay. “Is he the cable, or by using any other device or arrangement, to
one?” “Yan nga ho.” Then they arrest him and charges him. Because secretly overhear, intercept, or record such communication or
of this practice, they came up with this law. spoken word by using a device commonly known as a
dictaphone or dictagraph or dectaphone or walkie-talkie or
You can no longer invite. That’s why if you get invited, you could tape recorder, or however otherwise described:
decline. “Hindi ho pwede may lakad ho ako ngayon eh. Siguro, next
time.” What if it is an admission of guilt to the baranggay captain in 2) any person to knowingly possess any tape record, wire record,
response to the query of the brgy captain as to why he committed the disc record, or any other such record, or copies thereof, of any
offense charged in the presence of the Chief of Police. Is that part of communication or spoken word secured in the manner
custodial investigation? Yes. People v. Ochate, GR No. 127154, July prohibited by this law; or
30, 2002. So, class what do I want to drive at at this point in Section 3.
An evidence may be relevant but if it is excluded by the Rules, it is 3) any person to replay the same for any other person or persons
worthless. Another sample that we would give under this Rule is RA
4200, the anti-wiretapping law. That is another most abused provision 4) any person to communicate the contents thereof, either
of law. Although it is relevant, they are actually discussing how the verbally or in writing, or
crime will be committed but the manner by which it was secured is
not in accordance with the requirement of RA 4200, then it is 5) any person to furnish transcriptions thereof, whether complete
excluded by law. That is what the law wants to remind us. or partial, to any other person:
The use of such record or any copies thereof as evidence in any civil,
RA 4200: Wire-tapping criminal investigation or trial of offenses mentioned in section 3
hereof, shall not be covered by this prohibition.
Sec. 1. It shall be unlawful for any person, not being
authorized by all the parties to any private communication or
spoken word, to tap any wire or cable, or by using any other Sec. 2. Any person who wilfully or knowingly does or
device or arrangement, to secretly overhear, intercept, or who shall aid, permit, or cause to be done any of the acts
record such communication or spoken word by using a device declared to be unlawful in the preceding section or who
commonly known as a dictaphone or dictagraph or violates the provisions of the following section or of any order

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issued thereunder, or aids, permits, or causes such violation the same or any part thereof, or any information therein
shall, upon conviction thereof, be punished xxx. contained obtained or secured by any person in violation of
the preceding sections of this Act shall not be admissible in
Sec. 3. Nothing contained in this Act, however, shall evidence in any judicial, quasi-judicial, legislative or
render it unlawful or punishable for any peace officer, who is administrative hearing or investigation.
authorized by a written order of the Court, to execute any of
the acts declared to be unlawful in the two preceding sections Information obtained in violation of the anti-wiretapping act is
in cases involving the crimes of treason, espionage, provoking absolutely inadmissible.
war and disloyalty in case of war, piracy, mutiny in the high
seas, rebellion, conspiracy and proposal to commit rebellion, Relevancy v Materiality
inciting to rebellion, sedition, conspiracy to commit sedition,
inciting to sedition, kidnapping as defined by the Revised R: Fact in dispute
Penal Code, and violations of Commonwealth Act No. 616, M: Fact may shed light to the case
punishing espionage and other offenses against national
security: Provided, That such written order shall only be “fruit of the poisonous tree”
issued or granted upon written application and the
examination under oath or affirmation of the applicant and Admissibility ≠ Substance
the witnesses he may produce and a showing: (1) that there
are reasonable grounds to believe that any of the crimes Look into the manner and process by which it is taken.
enumerated hereinabove has been committed or is being
committed or is about to be committed: Provided, however, Mere fact of pre-marking/identified as an exhibit – NOT yet admissible;
That in cases involving the offenses of rebellion, conspiracy there’s a need to formally offer it so other party may object then
and proposal to commit rebellion, inciting to rebellion, judge rules on its admissibility
sedition, conspiracy to commit sedition, and inciting to
sedition, such authority shall be granted only upon prior proof Documentary Evidence
that a rebellion or acts of sedition, as the case may be, have
actually been or are being committed; (2) that there are Testimonial Evidence – offered when witness is presented; objected to
reasonable grounds to believe that evidence will be obtained that instant
essential to the conviction of any person for, or to the solution
of, or to the prevention of, any of such crimes; and (3) that Admin Matter Re: Pre-trial and Deposition – all evidence should be
there are no other means readily available for obtaining such marked during pre-trial; identify everything)
evidence.
Branch Clerk of Court – preliminary conference
xxx
Conditions for valid wiretapping Anti-Wire Tapping Act – knowingly possesses tape with information:
prohibited under RA 4200; use of device to tamper a communication
1) Any peace officer line; intent to tap into the privacy of an individual.
2) Authorized by a written order of the Court
Extension lines – NOT a violation
3) In cases involving the crimes of treason, espionage, provoking
war and disloyalty in case of war, piracy, mutiny in the high Cellphones – covered by wire tapping
seas, rebellion, conspiracy and proposal to commit rebellion,
inciting to rebellion, sedition, conspiracy to commit sedition, Text message – electronic evidence
inciting to sedition, kidnapping, espionage and other offenses
against national security: Before a recording of conversation can be given probative value, the
following requisites must first be established:
Sec. 4. Any communication or spoken word, or the
existence, contents, substance, purport, effect, or meaning of

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1) Showing that the recording device was capable of taking on how the accused killed the victim. The counsel asks “Well, 3
testimony months ago you attend the party with the accused and the victim. Can
2) Showing that the operator of the device was competent you tell us what happened in the party?” That is irrelevant and not a
3) Establishment of the authenticity and correctness of the collateral matter unless of course you can establish that prior to that
recording day, you could already establish that there is animosity among them
4) Showing that changes, additions, or deletions have not been and that it may result for the offense by reason of such animosity.
made
5) Showing of the manner of preservation of the recording Relevancy – fact in issue
6) Identification of the speakers
7) Showing that the testimony elicited was voluntarily made Collateral matters NOT allowed, EXCEPT when it tends in any
reasonable degree to establish the probability or improbability of a
 chain of custody; preservation fact in issue

Weapon – even if NOT presented, there may be a conviction; physical Physical Evidence is superior than testimonial evidence.
evidence
Alibi is the weakest defense.
Admissibility of a radio broadcast:
Identification:
Evidence of a message or a speech by means of radio broadcast is GR: positive and direct evidence
admissible as evidence when the identity of the speaker is established EXC: circumstantial evidence could be enough to identify/convict
either by:
(basis: S4 R133 Circumstantial Evidence – more than 1 circumstance;
1) Testimony of a witness who saw him broadcast his message or proven)
speech
RULE 129
2) Witness’ recognition of the voice of the speaker
What Need Not Be Proved
Sec. 4. Relevancy; collateral matters. — Evidence must have such a
SECTION 1. Judicial notice, when mandatory. — A court shall take
relation to the fact in issue as to induce belief in its existence or non-
judicial notice, without the introduction of evidence, of the existence and
existence. Evidence on collateral matters shall not be allowed, except
territorial extent of states, their political history, forms of government and
when it tends in any reasonable degree to establish the probability or
symbols of nationality, the law of nations, the admiralty and maritime
improbability of the fact in issue. (4a)
courts of the world and their seals, the political constitution and history of
the Philippines, the official acts of legislative, executive and judicial
Relevance – relation to the facts in issue as to induce belief in its
departments of the Philippines, the laws of nature, the measure of time,
existence or non-existence
and the geographical divisions. (1a)
Evidence on collateral matters allowed only when it tends in any
Mandatory Judicial Notice
reasonable degree to establish the probability or improbability of the
fact in issue. )1 existence and territorial extent of states, their political
history, forms of government and symbols of nationality
Evidence is relevant when it is related to the fact in issue. As a rule,
collateral matters are not allowed unless to a certain extent it would )2 the law of nations
establish the probability or improbability of the fact in issue. So, an )3 the admiralty and maritime courts of the world and
example of a collateral matter which would be irrelevant would be a their seals
case for murder and the witness on the stand is Mr. Sandoval and he
is being asked of the circumstances based on his personal knowledge )4 the political constitution and history of the Philippines

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)5 the official acts of the legislative, executive and b) motu propio, on request of a party
judicial departments of the Philippines c) takes judicial notice of any matter, and
d) if such matter is decisive of a material issue in the
)6 the laws of nature case
)7 the measure of time, and
Hence, the court can take judicial notice of any matter during the trial
)8 the geographical divisions as long as there is a hearing. If trial is already over, the court can take
judicial notice only of matters decisive of a material issue in the case
Sec. 2. Judicial notice, when discretionary. — A court may take judicial as long as there is a hearing.
notice of matters which are of public knowledge, or are capable to
unquestionable demonstration, or ought to be known to judges because of Kinds of Judicial Notice:
their judicial functions. (1a)
1) Mandatory – exclusive enumeration; matters already settled; judge
Discretionary Judicial Notice – matters which are: has NO discretion; he has NO choice

1) of public knowledge, or These are matters of judicial notice. Laws of nature---gravity,


2) are capable of unquestionable demonstration, or relativity.
3) ought to be known to judges because of their judicial functions All of these can be verified from source materials, like encyclopedia,
almanac, dictionary, etc. and these are matters of judicial notice by
the judges.
Sec. 3. Judicial notice, when hearing necessary. — During the trial, the
court, on its own initiative, or on request of a party, may announce its
e.g. highlights of Philippine history
intention to take judicial notice of any matter and allow the parties to be
heard thereon.
2) Discretionary
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
Judge has discretion and NO hearing is required.
matter and allow the parties to be heard thereon if such matter is decisive
of a material issue in the case. (n)
3) Hearing is Required
When court takes judicial notice:
Court takes judicial notice:
1) During trial, on any matter – allow the parties to be heard cases within sala: GR: NO
thereon EXC: matters of expediency; in the interest of justice

2) After trial, and before judgment or on appeal – any matter and cases with another branch: NO
allow the parties to be heard thereon if such matter is decisive
of a material issue in the case SC as to other cases: NO

Hearing is necessary when: SC Circulars: Yes

1) During the trial, the court Judicial notice takes the place of evidence.
a) motu propio, on request of a party
b) announces its intention to take judicial notice of any Proposition + Judicial Notice = Proof
matter
Resolutions, NOT bills, publicly known: Yes
2) After trial
a) before judgment or on appeal High tide S1 3rd kind of JN

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Judge CANNOT rely on personal knowledge beyond S1 Presumption of Regularity – better option for a reasonable judge

S2 is discretionary; NO hearing required (c) by virtue of judicial functions

S3 “hearing” – do NOT be misled; NO presentation of evidence; JN – NO need for declaration that he shall take JN
hearing is conducted to ventilate information to the court as to the
propriety of JN S3 party knows; at the instance of the court or the party; may happen
even before judgment (through an order  certiorari since it is an
Notoriety is a question of fact. interlocutory order) or on judgment ( appeal)

(a) matter of public knowledge S3 Hearing Necessary


You have completed the trial and you would like the court to take
It is subject to the discretion of the judge if it is of public knowledge, judicial notice. It should be something that could probably alter the
meaning it is of common or general knowledge at the standpoint of result or something that is so material or decisive that it might change
the judge. the outcome of the case.

death of judge’s schoolmate: NO JN You have to convince the court that they have to take judicial notice
of this fact. Is it the same as newly discovered evidence? NO, it is not.
España, Rotonda, Manila City Hall: Yes Newly discovered evidence is that there is a document or an evidence
of a witness who was discovered or produced after trial. Here, you will
Factors considered as to public knowledge not present it, you would want the court’s attention and you would
 notoriety want for the court to take judicial notice.
 knowledge of the judge
1st ANY matter during trial
If judge refuses to notice, there will be presentation of evidence. 2nd matter DECISIVE after trial, before judgment, on appeal (trial
If judge does NOT know, call court’s attention under S3 where hearing already terminated; you were already given the time; may change
is required. outcome of the case)

Erap is now history under S1 – political history e.g. of decisive matter


Can judge render decision solely on JN? NO; S1 R36 judgment based
upon facts and law That P/N issued on a Sunday
- settled; just look at the calendar to check
JN is only a rule, a means. Court CANNOT take JN completely and
dispense with evidence. Homicide case
- eyewitness saw accused because of the light of the full moon;
Nature of injury: NO JN subject of fact; decisive
That it will injure: Yes
Sec. 4. Judicial admissions. — An admission, verbal or written, made by
(b) unquestionable demonstration – Result; like those in statistical the party in the course of the proceedings in the same case, does not
processes and methods require proof. The admission may be contradicted only by showing that it
was made through palpable mistake or that no such admission was made.
Methodology: Yes (2a)
Variables (questions, people surveyed, subject of inquiry); survey
itself: NO JN Requisites for judicial admission:

Census: 1) Made by a party


Either: Judicial Notice 2) In the course of the proceedings

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3) In the same case Mediation – confidential; NOT admission

If the admission was made in outside the proceedings or in another Default ≠ Admission
case, it is also admissible under admissions of a party (Rule 130, Sec.
26). Preliminary Marking during pre-trial ≠ Admission

The admission may be contradicted only by showing that - Motion to Intervene


a) It was made through palpable mistake or Nordic Asia case: extended loan to debtor w/c mortgaged is vessel
b) NO such admission was made under the Ship Mortgage Decree; default  extrajudicial foreclosure
(while pending, crew of vessel filed an action to recover unpaid
Instances of Judicial admissions: salaries); Nordic intervened; has mortgage lien; SC: intervention
i. genuineness and due execution of an actionable IMPROPER; the intervenor must have own cause of action
document copied or attached to a pleading, when the other
party fails to specifically deny under oath (Rule 8 §8) RULE 130
ii. material allegations in the complaint, when the other
party fails to specifically deny it (Rule 8 §11) Rules of Admissibility
iii. admissions in superseded pleadings, when offered in
evidence (Rule 10 §8) A. OBJECT (REAL) EVIDENCE
iv. act, declaration, or omission of a party as to a relevant
fact (Rule 130 §26) SECTION 1. Object as evidence. — Objects as evidence are those
v. implied admission of guilt in an offer of compromise addressed to the senses of the court. When an object is relevant to the
by the accused in criminal cases, except quasi-offenses and fact in issue, it may be exhibited to, examined or viewed by the court. (1a)
those allowed by law to be compromised (Rule 130 §27)
vi. admission by silence (Rule 130 §32) Object – addressed to the senses of the court; represented by the
judge
Judicial admissions are verbal or written admissions by a party in the Being subject to the senses of the court, it could be viewed, examined
course of the proceedings without proof. If you admit, do you still and inspected by the court.
need to present evidence? NO more because there is already an
admission. And this is judicial admission as distinguished from extra-
e.g. articles, persons, inspection, experiment
judicial admission. Judicial admission is made at any time in the
course of the proceedings. The fact will be enough because the
- extends to real properties
evidence has already been admitted. Extrajudicial admission is an
admission out of court, not in the judicial proceedings.
Photographs: Photographs of persons, things, and places, when duly
verified and shown by extrinsic evidence to be faithful representations
Only similarity with JN: withOUT presentation/introduction of evidence
of the subjects as of the time in question, are, in the discretion of the
(NO need for proof)
trial court, admissible in evidence as aids to it in arriving at an
understanding of the evidence, the situation or condition of objects or
NOT in issue, either: NOT material or admitted and NOT disputed
premises, the circumstances of an accident, or the condition or
identity of a person when any such matter is relevant to the issues
Judicial admissions – material and relevant fact
being litigated.
When made? Pleadings (complaint, answer, reply), pre-trial
- ideal: photographer
Confession – acknowledgment of fault
- other people may testify (present during shoot)
- Request for admission under R26
first establish and lay foundation/basis:
- During trial (witness stand)
 operator

Page 10 of 88
 machine Exhibited to in court: personal property
 chain of custody  fruit of the crime
 changes  weapons used
 item assists in the just resolution of the case
Then go to the circumstances of time and place.  weapons for demonstration (visual purposes) – treated
differently with actual object because of weight of evidence
* Demonstration – show; described in the TSN; action CANNOT be
recorded Requisites for Competency of Real Evidence:
1. Relevant
Demonstrative Evidence v Demonstration 2. Authentic – who must authenticate? Witness – depends:
DE made for visualization purposes (weapon, map) o last in possession
o anytime in possession
Map – location o owner
o sold to him
Sketch – draw location of parties; may be marked as evidence; - authentication NOT required in demonstrative evidence, such as a
different nature from actual evidence map
* Casette Is it the actual object presented in court?
1. contents – testimonial evidence; witness narrates
2. object evidence; other authorities consider it documentary Demonstrative
 map – made by experts; presents graphical locations of an
* TSN area; locational
1. inquiry as to the contents – documentary
 sketch – NOT as accurate as a map
2. existence of TSN – object
 diagram – process/procedure (e.g. civil case – procedure for
making a computer chip)
* Autopsy Report – makes reference to a body
1. findings – documentary
Re-enactment – a demonstration; recorded in the TSN by description
2. body as examined (injuries) – physical; speaks more eloquently
(motions are NOT recorded)
than a hundred witnesses
Even in the absence of weapon, accused may be convicted if
* Intact hymen – physical (preferred)
personally identified and proved as perpetrator beyond reasonable
What was taken based on examination – physical
doubt.
Experiment – demonstrative; what would happen
If body (corpus delicti) NOT recovered, can there be a conviction for
homicide?
“Exhibited” – viewed by the court and duly marked
NO, body may be recovered so it raises a doubt if truly there was
killing.
Inspect, View – scene of the crime; evidence: NO need to exhibit,
But you can charge illegal detention if accused last seen with the
court appreciates it as it sees it
victim.
Judge must view in the presence of the witnesses so they will be given
Death certificate would suffice as to the fact of death.
the opportunity.
Paraffin test – NOT conclusive according to jurisprudence
* Autopsy, Medical Report – documentary
(use of gloves, lapse of time, homemade gun/paltik)
* Person dead, Wounds suffered – physical

Page 11 of 88
Relative measurements NOT considered in the case of a paltik testing or the samples are not contaminated. Here, you have
because jurisprudence says that there is NO scientific explanation for a comparison – a comparison of the sample which is taken
its trajectory. from the scene of the crime let’s say a sample of a blood and
then a sample from the plaintiff and there will be a
Powder burns may indicate relative distance of the victim and comparison of the sample taken at the scene of the crime and
accused. that of the victim or the accused. In this case, certain rules
were laid down, the samples that were collected were subject
 relative distance of accused to the victim (if short distance) to various chemical processes established so far. The tests
 relative size of wound may yield three possible results: 1) exclusion – meaning the
 nature of bullet/gun (depending on the distance) samples are different and therefore must have originated from
 stabbing – bolo (hacking); balisong (long cuts) different sources; 2) inconclusive – it is not possible to be sure
based on the results of the test whether the samples have
 gravity of the wound – physical evidence of the intent to kill;
similar DNA types. This would normally appear in situations
number of wounds shows the existence of self-defense; SC
wherein DNA procedure was not followed or there was
case: wounds in the body and 1 in the throat: during trial,
contamination of the samples; and 3) samples are similar and
victim’s brother narrated who the perpetrator was; it was
could have originated from the same source – this is inclusion.
physical evidence and NOT dying declaration; 1) visual; and 2)
There are three (3) possible results: exclusion, inconclusive or
expert testimony (won’t speak after suffering; only a mode
inclusion. In assessing the probative value of DNA evidence
can be made)
the court should consider the following: 1) the collection of the
 relative distances – near: powder burns on victim; moon; light;
samples 2) how the samples were handled 3) the possibility of
night time; flashlight (accused could be properly identified;
contamination 4) procedure followed in analyzing the
held by witness’ victim; different is it is the accused who holds
samples.
the flashlight because then the court raises doubt since
accused points it on the ground to guide them, NOT on his  The matter of appreciating the age of the victim, either as an
face/his companions’ faces element of the crime or as a qualifying circumstance, was
 voice – fact of you being able to recognize it will vary settled when the Court, in the case of People vs. Pruna (G.R.
according to case law; so long as you are familiar, lay the No. 138471. October 10, 2002), laid down the following
basis; when there’s a relative distance (70-100 m), voice guidelines:
range may vary according to jurisprudence; sound travels
1. The best evidence to prove the age of the
through waves so see distance
offended party is an original or certified true copy of the
 physical examination of a child in a rape case; EXCEPTIONS in certificate of live birth of such party.
a jury system, NOT so much in our system (person presented
– demonstrative): prejudice/undue bias, humiliate, 2. In the absence of a certificate of live birth, similar
indecent/improper; now, SC came out with a child-sensitive authentic documents such as baptismal certificate and
approach: NO doctor can examine a child by inserting his school records which show the date of birth of the victim
finger. The Supreme Court understood that because of would suffice to prove age.
medical technology, there will be NO need to make a physical
insertion of the finger of the doctor inside the organ of a child 3. If the certificate of live birth or authentic
victim. Why? They understand that if the child were at the document is shown to have been lost or destroyed or
stage of puberty, a visual examination with good lighting plus otherwise unavailable, the testimony, if clear and
a magnification of the area would be enough to make a credible, of the victim’s mother or a member of the
conclusion whether there was sexual contact. Gone were the family either by affinity or consanguinity who is qualified
days wherein it is required that the doctor has to insert a to testify on matters respecting pedigree such as the
finger to the organ of the child. exact age or date of birth of the offended party pursuant
to Section 40, Rule 130 of the Rules on Evidence shall be
 DNA Testing. In People v. Vallejo, DNA testing has now been sufficient under the following circumstances:
adopted. DNA testing goes into the genes of the individual.
There are tests to be conducted in order ensure that the DNA a. If the victim is alleged to be below 3 years

Page 12 of 88
of age and what is sought to be proved is inquiry, there is no need to present the original. So, only when the
that she is less than 7 years old; contents thereof are subject of the inquiry do you need to present the
original.
b. If the victim is alleged to be below 7 years
of age and what is sought to be proved is There are exceptions to this rule on presenting the original. First,
that she is less than 12 years old; when it has been lost, destroyed without bad faith on the part of the
c. If the victim is alleged to be below 12 offeror, Second, it is in the possession of the adverse party and third
years of age and what is sought to be that there are long accounts and that there is great waste of time to
proved is that she is less than 18 years present it and the only thing to establish is a general fact or that the
old. documents are in the custody of a public officer and it is recorded.

4. In the absence of a certificate of live birth, Original document may either be private or public. There is difference
authentic document, or the testimony of the victim’s mother in authentication, S19-33 R132
or relatives concerning the victim’s age, the complainant’s
testimony will suffice provided that it is expressly and clearly Best Evidence Rule – When the subject of inquiry is the contents of a
admitted by the accused. document, no evidence shall be admissible other than the original
document itself
5. It is the prosecution that has the burden of
proving the age of the offended party. The failure of the Exceptions: When the original
accused to object to the testimonial evidence regarding age 1) has been lost or destroyed, or cannot be produced in court,
shall not be taken against him. without bad faith on the part of the offeror;
2) is in the custody or under the control of the party against
The trial court should always make a categorical finding as to the
whom the evidence is offered, and the latter fails to produce it
age of the victim.
after reasonable notice;
3) consists of numerous accounts or other documents which
B. DOCUMENTARY EVIDENCE cannot be examined in court without great loss of time and
the fact sought to be established from them is only the
Sec. 2. Documentary evidence. — Documents as evidence consist of general result of the whole; and
writing or any material containing letters, words, numbers, figures, 4) the original is a public record in the custody of a public officer
symbols or other modes of written expression offered as proof of their or is recorded in a public office
contents. (n)
(a) When the original has been lost or destroyed, or cannot be
Ultimate test: “material” on which these are written produced in court, without bad faith on the part of the offeror;

Photograph of writing – subject of inquiry  documentary (Francisco); Now, let’s take note of loss or destruction. In terms of showing to the
in actuality, treated as an object, this is the GR. So read the contents court that it was actually lost, would you need to present another
to highlight the same. witness? If that is necessary then you could present another witness.
If you could establish and convince the court that it was lost without
1. BEST EVIDENCE RULE presenting other witnesses then it is acceptable. Then on the order of
presenting authentic documents where the contents of the subject
Sec. 3. Original document must be produced; exceptions. — When the document are being recited, take note what are the examples of this?
subject of inquiry is the contents of a document, no evidence shall be There could be a memorandum of agreement or there could be an
admissible other than the original document itself, except in the following exchange of correspondence wherein portions of the terms and
cases: conditions have been recited. This normally happens when lawyers
draft voluminous contracts and there is an exchange of
There’s only a requirement of presenting the original if the contents of correspondence between the lawyers. At some point they could agree
the document is subject of the inquiry. If it is not subject of the on this particular provision and this could be a recital of some

Page 13 of 88
authentic document. It is also possible that there is a memorandum of agree, when they do not consent or the court says that the matter
agreement or a written agreement for that matter. A simple piece of should be referred to the commissioners, this is one of the grounds.
paper reciting the general structure of an agreement may be a basis
to establish that this is truly the terms and conditions agreed upon by (d) When the original is a public record in the custody of a public
the parties. officer or is recorded in a public office. (2a)
Let us take this one at a time. In a scenario under the first exception
that it has been destroyed or lost, you see here a situation wherein The court is in possession of a public document. When it comes to
you cannot present the original. Because you cannot present the this, all you need to present is a certified true copy. If the same is in
original, could you immediately present a copy or a recital of its the possession of a public officer there is this rule on Rule 132 on
contents in some authentic document or present a witness in that irremovability of a public record. Considering that you cannot remove
order? No. Even if, let’s say it is lost, you just don’t say, “Your Honor, a public record except upon order, then it would be enough for you to
it is lost.” You will have to lay a basis first of the following: that it present a certified true copy of the document. But when do I need to
actually existed and second that it has been lost or destroyed. And present an original which is recorded in the public office? When its
third that there is no bad faith on the part of the person offering the authenticity is being disputed. When the entries therein are being
same. So if you could lay those bases then you could present not the disputed but of course there should be a court order. Without the
original because the original could no longer be presented but you will court order, the person in custody of the document will not present
present a copy, a recital of the same in some authentic record or the original.
document and third presentation of a witness or testimonial evidence.
1) relevant
(b) When the original is in the custody or under the control of the 2) NOT excluded by law/Rules
party against whom the evidence is offered, and the latter fails to produce 3) Authenticated – identified
it after reasonable notice;
Drugs - Rule: it should be presented; that it was the same drug/s
The second exception is when the same is in the possession of the taken when apprehended
adverse party. Just like the other exceptions, you have to establish
existence but I think the most important thing that you have to Best Evidence – opportunity to examine it: where right depends;
establish here is that there was notice, that there was notice given to reason why original is presented
the adverse party to produce the same and that despite notice there
was failure to surrender or deliver or despite notice there was refusal Prudent lawyer keeps the original of an actionable document and
to surrender the document. The notice is that which initiates this present it when called for during examination.
secondary evidence. Without such notice even if you believe the fact
that it is in the possession of the other party, you don’t give the Admission that photocopy is a faithful representation – proceed after
notice, then it’s useless. However do not confuse the notice here with comparison
the notice under Rule 27. Under Rule 27 if you want to avail of the
mode of discovery, you give a notice for production or even motion for You could initiate an action in the absence of an original S7 R8
production or inspection of paper, books and documents. (original/copy is attached) and you could present secondary evidence
during trial.
(c) When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss of time BER – to prevent fraud and avoid inaccuracy and falsification
and the fact sought to be established from them is only the general result
of the whole; and S8 R8 How to contest such document (genuineness and due
execution)
The third is long accounts. What are examples of long accounts?
Balance sheets, ledgers, voluminous invoices, voluminous delivery S2 R32 (Commissioners for long accounts)
receipts. These are examples of long accounts. And when did you first
meet long accounts as a provision of law? On the rule on Present originals:
commissioners under Rule 32, Section 2 when the parties could not  Misappropriation case of public funds

Page 14 of 88
 BP 22 (several counts) its contents are the same. Now let us not strain our imagination in
pushing it that let us say because of so many copies, around 12
Irremovability of public record S26 R132 copies of a document, I signed 6 at this time and because I had a
meeting I forgot all about it and I signed the rest the following day.
Rationale for Originals: Will it still be regarded as an original? Yes. It is still regarded as an
1. copies and oral testimony more prone to inaccuracy and original. But then sir, it doesn’t appear that it was executed at or
subject to fraud about the same time? But it has identical contents and I tell you, it will
2. appearance furnishes information: authenticity still carry the same date. If you do not put in the same date, that’s
your problem because your opponent would say, how come there are
Private document S20 onwards two sets of documents executed with identical contents? So that is an
example of item b.
Sec. 4. Original of document. —
(a) The original of the document is one the contents of which are the Now you have item c: when an entry is repeated in the regular course
subject of inquiry. of business, one being copied at or near the time of the transaction.
(b) When a document is in two or more copies executed at or about Take note of entry. What is important here is entry. That entry was
the same time, with identical contents, all such copies are equally made at or near the time of the transaction. To give you an example
regarded as originals. of this let us say I am a trader. Of course there are delivery receipts to
(c) When an entry is repeated in the regular course of business, one my warehouse, there are releases to the customers and there will be
being copied from another at or near the time of the transaction, all the official receipts or invoices. All these will be imputed at or near the
entries are likewise equally regarded as originals. (3a) time of the transaction. What is the reason for this? Why is this
regarded as an original? Because there is no room for you to fabricate,
Original documents that is the concession. But could it be fabricated, yes, could it be
1) One the contents of which are the subject of inquiry. tampered with, yes, that is why in exception to hearsay rule is entries
2) When a document is in two or more copies executed at or made in the ordinary course of business. And why is it an exception?
about the same time, with identical contents, all such copies The person who made the entry is either dead or unavailable such
are equally regarded as originals. that reliance is made on the document because it was made in the
3) When an entry is repeated in the regular course of business, regular course of business. But there is apparently no rule in that way.
one being copied from another at or near the time of the Could it be disputed? Yes. All of those exceptions under the hearsay
transaction, all the entries are likewise equally regarded as rule are not absolute. It could be disputed, it could be subjected to
originals cross examination. The witness may be subjected to cross-
examination.
When the contents are the subject of the inquiry, it is an original. Does
it mean that even if it is a photocopy but the contents thereof are 1. Original is best evidence - by the very nature and NOT inquiry
subject of an inquiry, it becomes an original? No. An original should be which makes it original
an original. It is not the fact of an agreement or that the contents of 2. Document is in 2/more copies executed “at/about the same
which are subject of an inquiry that makes it the original. Now aside time,” with identical contents – executed more or less at the
from that on Rule 130 there is also another definition of an original, same time
item b: when a document is in two or more copies executed at or 3. Entry repeated in the regular course of business “at/near the
about the same time, with identical contents, take note at or about time of the transaction” – fairly contemporaneous with the
the same time with identical contents. It may be executed at or about transaction
the same time but does not have identical contents, then the other
one cannot be considered as an original. How about a duplicate copy Court orders stamped with “original signed” – NOT originals
or a duplicate original? In the past or even today, courts still use
typewriters and they too use carbon paper. They insert in between the Secure a certified true copy or duplicate copy; act of execution
papers carbon papers to produce 3 or 4 or 5 copies. Are these includes signing; near time as it was executed.
duplicate originals? Yes, they are duplicate originals. What the law
says is that it should be executed at or about the same time and that Counterparts

Page 15 of 88
Phils. A peace and order problem satisfactory proof of its existence, he fails to produce the document,
HK B sars secondary evidence may be presented as in the case of its loss. (5a)
- document executed in counterparts – NOT originals from the
definition but authorities consider them as originals (Wigmore, Adverse Party may be the plaintiff or defendant in custody/control
Warton)
How? Clause that “this agreement could be signed in counterparts.” Requisites:

Entries are repeatedly copied, NOT executed at/near the time of the (1) custody/control of AP
transaction – attained a certain level of trustworthiness; less room for (2) reasonable notice to produce it
error; NOT doubtful but could still be disputed; even without - unlike an actionable document where the court gives
signatures, but there must be entries order of inspection S8 R8
(3) failure to produce
If NOT logged in (dispatch and receive) – NO longer in the regular (4) existence (satisfactory proof)
course of business
If original was NOT produced, the fact that the original document is
2. SECONDARY EVIDENCE later produced does NOT render erroneous the previous admission of
SE.
Sec. 5. When original document is unavailable. — When the original
document has been lost or destroyed, or cannot be produced in court, the If original was produced, NO need for SE.
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 Once notice is given, there is a duty to comply.
copy, or by a recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated. (4a) What if original contradicts SE?
Court weighs evidence, judge appreciates
Requisites:
“copy” – reproduction of original
(1) loss, destruction, unavailability
- reasonable probability of loss is sufficient; dispensed K photocopy before signing – original
with by admission K photocopy after signing – copy

(2) existence “some authentic document” – either private or public


- proven by documentary, object or testimonial
evidence (any form acceptable under the law); Proponent must know that he has done all in his power to secure the
otherwise, it will breed fraud, falsification and best evidence by giving to the adversary notice to produce it.
inaccuracy
- separate and apart from secondary evidence (copy, To be later expounded on by the lawyer:
recital, testimony)  contents, the subject of inquiry Memorandum of Agreement – skeleton
REM on loan obligation
(3) withOUT bad faith; EXC: destruction in the ordinary
course of business, by mistake, NO reasonable suspicion “testimony” – signed, read or heard it read (verbal accuracy NOT
of fraud required; sufficient to state it in substance)
- cause of loss of destruction; presumption under R131
on suppression of evidence There’s a hierarchy of SE because memory may betray you.

Sec. 6. When original document is in adverse party's custody or control. Instant demand sufficient where document is at hand in the court
— If the document is in the custody or under the control of adverse party, room; NO need for previous notice
he must have reasonable notice to produce it. If after such notice and after

Page 16 of 88
Title to land: a) owner’s )5 Bureau of Archives
b) original at the RD
- encumbrance NOT found in owner’s copy; attack the original but it
CANNOT be removed under S26 R132 Requisites for admission of secondary evidence, according to grounds:

Sec. 7. Evidence admissible when original document is a public record. )1 Original has been lost or destroyed, or cannot be produced in
— When the original of document is in the custody of public officer or is court
recorded in a public office, its contents may be proved by a certified copy .a Prove execution or existence
issued by the public officer in custody thereof. (2a)
.b Prove cause of unavailability without bad faith of the offeror
Certification – “in substance” is all that is required; that:
.c Proof of contents in the following order
 correct copy Copy
 under official seal
Recital of its contents in some authentic document, or
 with authority to certify
 duly signed Testimony of witnesses
NO need to employ “certify” or “certificate” )2 Original is in the custody or under the control of the adverse party
cf Rule 132 §25-27 .d Adverse party had reasonable notice to produce the original
(Subpoena duces tecum)
Sec. 25. What attestation of copy must state. - Whenever a copy
of a document or record is attested for the purpose of evidence, .e Proof of the original’s existence
the attestation must state, in substance, that the copy is a correct
.f Adverse party fails to produce the original
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 .g Proof of contents in the following order
officer, if there be any, or if he be the clerk of a court having a
seal, under the seal of such court. (26 a) Copy

Sec. 26. Irremovability of public record. - Any public record, an Recital of its contents some authentic document, or
official copy of which is admissible in evidence, must not be Testimony of witnesses
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 )3 Original consists of numerous accounts or other documents which
determination of a pending case. (27 a) cannot be examined in court without great loss of time and the
fact sought to be established from them is only the general result
Sec. 27. Public record of a private document. - An authorized of the whole; and
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 )4 Original is a public record in the custody of a public officer or is
record, with an appropriate certificate that such officer has the recorded in a public office – contents may be proved by a certified
custody. (28a) copy issued by the public officer in custody thereof

To prove loss, get affidavits of loss from all the people who possibly .h Rule 132 §25: What attestation of copy must state
has a copy of the original, e.g. Notarized Deed of Sale Copy is a correct copy of the original, or a specific part thereof
)1 Vendor Under the official seal of the attesting officer, if there be any, or if he
)2 Vendee be the clerk of a court having a seal, under the seal of such court

)3 Notary public .i Rule 132 §27: Public record of a private document - may be
proved by
)4 Clerk of the court which gave the notary public commission

Page 17 of 88
Original record, or
Reasonable certainty is sufficient.
By a copy thereof Reasonable suspicion is NOT enough.
)a Attested by the legal custodian of the record
e.g. house burned down – some reasonable certainty that
)b With an appropriate certificate that such officer the document is in such house so the court may be
has the custody convinced for the presentation of secondary evidence;
need NOT be proved beyond the possibility of
Sec. 8. Party who calls for document not bound to offer it. — A party who error/mistake
calls for the production of a document and inspects the same is not
obliged to offer it as evidence. (6a) Lay the basis then present secondary evidence:
 Copy
Similar rule under R23 Depositions (Written Interrogatories)  Recital (authentic – genuine, need NOT be a
public document)
Documentary evidence or the Best evidence. It must be the original.  Testimony
Only when the contents is the subject of the inquiry. To use Secondary
evidence, loss or destruction of the original must be established first. Laying the basis/foundation – When made? During trial (witness on the
stand)
Possession of adverse party - Notice to the said adverse party is very
important. Proof of non-production in court: In order to introduce secondary
evidence of a writing, it is not necessary to show that the original has
If copy is available, present the copy; if not, recital by witness. been lost or destroyed, but it is sufficient to show that it is deposited
in a place from which it cannot be removed for the purpose of being
Secondary Evidence – first show that the primary evidence is NOT produced in court, or that it is not in the possession or under the
obtainable control of the party seeking to show the facts and that he is unable to
Requisites: LAYING THE BASIS produce it within a reasonable time after the exercise of reasonable
diligence.
1) Proof of Existence/Execution
Reason: if NO original, NO secondary; execution is the 3. PAROL EVIDENCE RULE
accomplishment of a thing
Sec. 9. Evidence of written agreements. — When the terms of an
State events and circumstances surrounding execution to agreement have been reduced to writing, it is considered as containing all
prove existence. 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
Docs > 30 yrs. old – NO need for proof of execution of the written agreement.
However, a party may present evidence to modify, explain or add to the
2) Lost, destroyed/CANNOT be produced terms of written agreement if he puts in issue in his pleading:
lost – CANNOT be discovered; destroyed – NO longer exists; (a) An intrinsic ambiguity, mistake or imperfection in the written
cannot be produced – unavailable agreement;
(b) The failure of the written agreement to express the true intent and
3) Cause of unavailability withOUT bad faith - NO bf, NO intention agreement of the parties thereto;
to suppress document; presumption: detrimental to his (c) The validity of the written agreement; or
cause (d) The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement.
4) Diligent search – bona fide; fruitlessly made in the place The term "agreement" includes wills. (7a)
where it is most likely to be found; exhausted all sources of
information and means of discovery

Page 18 of 88
Parol Evidence Rule: When the terms of an, agreement have been iv. agreement for the sale of goods, chattels or things in action,
reduced to writing, it is considered as containing all the terms agreed at a price not less than P500, unless the buyer accept and
upon and there can be, between the parties and their successors in receive part of such goods and chattels, or the evidences, or
interest, no evidence of such terms other than the contents of the some of them, of such things in action or pay at the time
written agreement. some part of the purchase money;
v. lease for more than 1 year, or sale of real property or of an
Exceptions: a party may present evidence to modify, explain or add to interest therein;
the terms of the written agreement if he puts in issue in his pleading vi. representation as to the credit of a 3rd person.
1) An intrinsic ambiguity, mistake or imperfection in the written
agreement Exceptions
2) failure of the written agreement to express the true intent and i. failure to object to the presentation of oral evidence, or
agreement of the parties ii. acceptance of benefit under the agreement
3) validity of the written agreement; or
4) The existence of other terms agreed to by the parties or their Distinguish
successors in interest after the execution of the written
agreement Parole Evidence Rule Best Evidence Rule
No original involved Look at the original
If the ground is subsequently-agreed terms, the subsequently-agreed No issue as to the contents of a Issue is contents of a writing
terms must also be put in issue in the pleadings. The rule applies only writing
to the terms of an agreement. Parol evidence is offered Secondary evidence is offered
Presupposes that original is in Applies when the original is not
If the evidence sought to be admitted refers to matters other than the court available
terms of the agreement (e.g. statement of facts), then the PER does Effect is can not add, subtract, Effect is can not present any
not apply, such evidence is admissible. or explain the contents evidence on the contents other
than the original
PER applies only to the parties to the agreement. It does not apply Invoked only if the controversy Invoked by anybody, whether a
where PER is invoked against a litigant who is a stranger to the is between parties to the party to the instrument or not
agreement. agreement
Applies only to agreements and Applies to all kinds of writing
Requisites for mistake as exception to PER: wills
a) mutual between the parties
b) of fact, not of law
c) alleged and put in issue in the pleadings In the best evidence rule, you have to present the original because
d) proved by clear and convincing, not merely preponderance of, the contents thereof are the subject of the inquiry, there is already a
evidence dispute.
The rule on self-defense also requires that the circumstances of self- In parole evidence rule, it only states that the agreement is the
defense be proven by clear and convincing evidence. repository of what the parties had agreed upon. So if you try to
introduce extrinsic evidence or parole evidence, as a rule, could you
Statute of Frauds: If the following agreements are not in writing and do it? NO, because that will be in violation of the parole evidence rule,
subscribed, it is unenforceable and evidence thereof is inadmissible which says that the agreement will be the repository of what the
i. not to be performed within a year from the making thereof parties and their successors-in-interest have agreed upon.
ii. special promise to answer for the debt, default, or miscarriage
of another; Parties bound by the written agreement, it being the
iii. agreement made in consideration of marriage, other than a repository/memorial of what has been agreed upon; NO substitute,
mutual promise to marry;

Page 19 of 88
change NOR alteration allowed. One CANNOT produce extraneous - sued for recovery of amount
evidence. - debtor now says that loan is for 5 yrs. with 3% interest
SC: NO PER; effect: changes agreement
Under the second paragraph, if you introduce extrinsic evidence, if
you are allowed to introduce extrinsic evidence, according to the The document is the embodiment of the agreement and those NOT
provisions of the second paragraph, that is termed parole evidence written are considered waived and abandoned. It is the expositor of
and NOT the parole evidence rule. the parties’ intentions and the only instrument of evidence in respect
of that agreement.
The first paragraph is the parole evidence rule. The second paragraph
provides the instances when you could present parole evidence. PER gives certainty to a transaction which has been reduced to
writing, more certain and accurate than fleeting memory.
Could you just present at any given time? NO. You have to put it in
issue in the pleadings. What do you mean by that? If you are the Put in issue is to allege and make an issue; put forth such issue.
complainant, put it as an issue in the complaint. If you are the
defendant and you would want to raise it as one of your defenses, put PER Exceptions: conditions for presentation of parole evidence:
it in issue in the answer. Or the plaintiff after receiving the answer
might want to introduce a new matter in a reply, then put it there, put a. intrinsic ambiguity, mistake or imperfection in the written
it in issue in the pleadings. If you don’t put it in issue in the pleadings, agreement.
could you introduce parole evidence? Not the parole evidence rule but
could you introduce parole or extrinsic evidence? No, you cannot. i. intrinsic/latent ambiguity – discoverable only when
applied to the circumstances; already existing; you do
Is there a remedy if by chance I did not put it in issue? NOT create; clear words but doubtful application

Yes, you amend the pleadings to conform with the evidence under S5 e.g. I am giving my 1987 Mitsubishi Lancer
R10 because under that category of Rule 10, if the other party doesn’t color yellow to Mr. Ong. And there are two Mr.
object, you can amend the pleadings or if the other party objects, you Ongs in my class. On the face of the
can still amend, you file a motion to amend your pleadings to conform document, there appears to be no ambiguity.
with the evidence already presented. Let us say you were successful But if you start to implement or enforce the
in presenting it and no other objection, amend it in accordance with same then apparently there is an ambiguity.
evidence presented. On the face of the agreement or document,
there is already a problem. And therefore let
You can only amend it, if you were able to present the evidence. What us say, I am giving my 1987 Mitsubishi Lancer
if you were not able to present the evidence because the other party to ___. It was left blank. Is it something that
objected it, can you still amend it? Yes, with leave of court. Because could be subject to a modification, an
you can amend as a matter of right before an answer is filed and after explanation? Could we present parole
an answer is filed with leave of court. So it is very important that you evidence? NO because we are going into the
put it in issue, unless you put it in issue, you cannot modify, explain or intent of a person which we CANNOT do.
add.
Parol admissible on collateral matter/s
However, court can still render valid judgment even if NOT amended
so long as it is proven by evidence. ii. mistake of fact

2002 case in PER a. mistake of fact


b. mutual
Bank Manager approached by Spouses for a P800,000 loan for 6 c. alleged and proven by clear and convincing
months with 6% interest evidence
- default

Page 20 of 88
There was a previous agreement which was NOT
reflected in the instrument and it was a common If there is this agreement and because I am not schooled, the
agreement. Reformation may be had. agreement was titled deed of sale. My intention only was to
place a mortgage but because I do not know the legal
iii. imperfection implications, I only placed deed of sale. What was the true
- There was an agreement embodied but was intent of the parties? To execute a mortgage. Could parole
imperfectly worded; due to poor drafting; includes an evidence be presented? Yes. Does it mean that if we are to
inaccurate statement present parole evidence it is only limited to written
documents? No. You could also present testimonies of
e.g. The same example could be given. Let us witnesses. It’s not limited to paper. On introduction of parole
say I am giving my property in Bulacan, is it evidence in the second paragraph, you could present
clear? No, I need to give the details of the witnesses who saw how the document was executed,
same. Now, take note that there are 3 kinds of witnesses who heard how the agreement was negotiated, they
ambiguities: extrinsic, intermediate, intrinsic. could sit on the stand.
Intrinsic ambiguity falls under this. Extrinsic
ambiguity doesn’t fall under parole evidence. c. validity of the written agreement
Intermediate ambiguity would also fall under
parole evidence. What is that? Sir, there is an - An illegal contract could not be validated by parole evidence.
issue as to how you describe a particular A void contract cannot be validated by parole evidence;
subject matter or item. I was referring to an whether valid/NOT; in questioning, parole evidence may be
equipment or machine. I was referring to presented
16,000 capacity. On the face it appears to be
clear however, my wording is equivocal, not inducement, incapacity, fraud, illegality, misrepresentation
unequivocal but equivocal which gives two  to establish, NOT validate the agreement
meanings, it could be capacity in terms of
working capacity or capacity in terms of d. existence of other terms agreed upon by the parties
production. In which case, that is an subsequent to the agreement or after the execution of the
intermediate ambiguity. document

b. failure of written agreement to express the true intent and - tangible evidence: memorandum, amendment,
agreement of the parties supplement

e.g. written: sale but the intent: truly a mortgage It only means that let us say an agreement has been executed
today between Mr. Ong and me but let’s say tomorrow Mr.
Let us say that there was really no contract, could you present Ong said that was not really his intention, the agreement was
parole evidence? There was this written contract presented for me to deliver on a weekly basis 400 dozens of eggs and he
with all the formalities and showing that I signed it but I never said that it’s too much for my production of eggs so I think the
signed it. Could parole evidence be presented? Yes. If I was general intention was only for 200 dozens of eggs. So could
induced, if there was misrepresentation, if there was fraud, we execute another agreement? Yes. But it was a simple
could parole evidence be presented? Yes. Could parole correspondence? Could we enter into a separate agreement?
evidence be presented to legalize an otherwise illegal Yes. And could you prove it? Yes. So long as it is after the
contract? No. Could parole evidence validate an otherwise execution of the agreement. So you see here an agreement
void agreement? No. executed at some particular date and there maybe
subsequent agreement between the parties and their
So take note that it goes to the intent of the parties. Even if successors-in-interest after the agreement. Take note that the
there is an agreement but that is not the intent of the parties, agreement here would include wills.
then you could present parole evidence.

Page 21 of 88
e.g. Lease agreement but with option to purchase Sec. 14. Peculiar signification of terms. — The terms of a writing are
made by oral discussion – this can be presented as presumed to have been used in their primary and general acceptation, but
there is subsequent agreement evidence is admissible to show that they have a local, technical, or
otherwise peculiar signification, and were so used and understood in the
In the presentation of parole evidence, you may add or modify based particular instance, in which case the agreement must be construed
on any of the grounds. accordingly. (12)

4. INTERPRETATION OF DOCUMENTS - word has a general and technical meaning; e.g. “labor
dispute,” “demand,” “mouse”
Sec. 10. Interpretation of a writing according to its legal meaning. — The
language of a writing is to be interpreted according to the legal meaning it Sec. 15. Written words control printed. — When an instrument consists
bears in the place of its execution, unless the parties intended otherwise. partly of written words and partly of a printed form, and the two are
(8) inconsistent, the former controls the latter. (13)

Interpret – give meaning Sec. 16. Experts and interpreters to be used in explaining certain writings.
Construe – ascertain intent (go beyond) — When the characters in which an instrument is written are difficult to be
deciphered, or the language is not understood by the court, the evidence
Matters of substance – you can agree of persons skilled in deciphering the characters, or who understand the
Matters of form – you CANNOT agree (solemnities) language, is admissible to declare the characters or the meaning of the
Matters of procedure – you CANNOT agree (law of the forum) language. (14)

Sec. 11. Instrument construed so as to give effect to all provisions. — In Sec. 17. Of Two constructions, which preferred. — When the terms of an
the construction of an instrument, where there are several provisions or agreement have been intended in a different sense by the different parties
particulars, such a construction is, if possible, to be adopted as will give to it, that sense is to prevail against either party in which he supposed the
effect to all. (9) 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
- give effect; harmonize; separability clause the party in whose favor the provision was made. (15)

Sec. 12. Interpretation according to intention; general and particular e.g. a stipulation provides:
provisions. — In the construction of an instrument, the intention of the “payment of the monthly amortization shall be made by the
parties is to be pursued; and when a general and a particular provision are other party once the mortgaged property is taken out from I
inconsistent, the latter is paramount to the former. So a particular intent Bank”
will control a general one that is inconsistent with it. (10) who is the other party?
MoA executed November 2003
- intention pursued as to unclear provisions (equivocal); Takeout December 2004
particular provision prevails - if parties CANNOT agree, the court shall decide

Sec. 13. Interpretation according to circumstances. — For the proper Sec. 18. Construction in favor of natural right. — When an instrument is
construction of an instrument, the circumstances under which it was equally susceptible of two interpretations, one in favor of natural right and
made, including the situation of the subject thereof and of the parties to it, the other against it, the former is to be adopted. (16)
may be shown, so that the judge may be placed in the position of those
whose language he is to interpret. (11) Sec. 19. Interpretation according to usage. —An instrument may be
construed according to usage, in order to determine its true character. (17)
- situation of the subject and parties; to be able to interpret it
better - instrument is construed; e.g. “kristo” in cockfights (accuracy
of bets)

Page 22 of 88
Rules of interpretation of documents: that sense which may result from all of them taken
jointly.
⇒ Interpretation of a writing according to its legal ⇒ Words which may have different significations shall be
meaning in the place of execution understood in that which is most in keeping with the
⇒ Instrument construed so as to give effect to more nature and object of the contract.
provisions ⇒ The usage or custom of the place shall be borne in
⇒ Interpretation according to intention of the parties mind in the interpretation of the ambiguities of a
⇒ particular over general contract, and shall fill the omission of stipulations
⇒ Interpretation according to circumstances of the which are ordinarily established.
parties and the subject ⇒ The interpretation of obscure words or stipulations in a
⇒ Terms presumed to be used in primary and general contract shall not favor the party who caused the
acceptation, evidence of local, technical, or peculiar obscurity.
signification use admissible ⇒ When it is absolutely impossible to settle doubts by
⇒ Written words control printed the rules established in the preceding articles
⇒ When the characters are difficult to decipher, or the o the doubts refer to incidental circumstances of
language is foreign, the evidence of experts and - a gratuitous contract, the least transmission
interpreters is admissible of rights and interests shall prevail
⇒ When the terms of an agreement have been intended - an onerous contract, the doubt shall be
in a different sense by the different parties to it, that settled in favor of the greatest reciprocity of
sense is to prevail against either party in which he interests
supposed the other understood it o If the doubts are cast upon the principal object of
⇒ When different constructions of a provision are the contract in such a way that it cannot be known
otherwise equally proper, that is to be taken which is what may have been the intention or will of the
the most favorable to the party in whose favor the parties, the contract shall be null and void.
provision was made ⇒ The principles of interpretation stated in the Rules of
⇒ preference for natural right Court shall likewise be observed
⇒ usage may be considered
ELECTRONIC EVIDENCE
Statutory rules of interpretation
 applies to administrative, civil and criminal cases
⇒ If the terms are clear, the literal meaning shall control.
 electronic document may either be public or private
⇒ If the words appear to be contrary to the evident
intention of the parties, the intention shall prevail  “electronic signature”
⇒ In order to judge the intention of the contracting  R3 electronic evidence
parties, their contemporaneous and subsequent acts  R4 best evidence
shall be principally considered.  R5 authentication
⇒ terms of a contract shall not be understood to  R8 exception to the hearsay rule
comprehend things that are distinct and cases that  Digital signature
are different from those upon which the parties  R9 method of proof
intended to agree
⇒ If some stipulation of any contract should admit of Highlights:
several meanings, it shall be understood as bearing
that import which is most adequate to render it  Admissibility – go back to S3 R128 (relevant and NOT
effectual. excluded, authenticated)
⇒ The various stipulations of a contract shall be
interpreted together, attributing to the doubtful ones

Page 23 of 88
 BER – original electronic data/information; include printouts - such was the regular practice to
and outputs readable by sight and other means; subject to make the memorandum, report,
question record or data compilation
 Definition of electronic signature and digital signature; public
and private key * all of which are shown by the
 Electronic ID – each computer as its own ID; signature is NOT testimony of the custodian/other
used as much qualified witnesses
 Presumptions – relate with R131
 Authenticity – reliance on source and preparation, C. TESTIMONIAL EVIDENCE
transmission & storage; who? person with personal knowledge
or person of competence; judge weighs evidence (through 1. QUALIFICATION OF WITNESSES
resolution)
 Hearsay exception – entries made “in the regular course of Sec. 20. Witnesses; their qualifications. — Except as provided in the next
business” because of a certain level of regularity and succeeding section, all persons who can perceive, and perceiving, can
repetition observing the regular course of business, data may make known their perception to others, may be witnesses.
be expected to be reliable; e.g. printout of a physical exam at Religious or political belief, interest in the outcome of the case, or
NKI conviction of a crime unless otherwise provided by law, shall not be
 Ephemeral communication – NOT stored (nature of ground for disqualification. (18a)
information); but by its very nature, it could be stored (i.e.
email, text) Qualifications of witnesses:
 Photographs – audio and video recording; need to lay the 1) Can perceive
basis; who testifies? a person with personal knowledge or a 2) Perceiving
competent individual who knows the facts and circumstances; 3) Can make known their perception to others
rules in laying the basis with respect to audio recording is
more stringent under R128 NOT grounds for disqualification:
1) Religious belief
Business Record as Hearsay Exception (Entries) 2) Political belief
3) Interest in the outcome of the case, or
4) Conviction of a crime, unless otherwise provided by law, e.g.
R130 S43 R8 S1 (Rules on Electronic
a) State witness must not have been convicted of any
Evidence )
crime involving moral turpitude [Rule 119, Sec. 17 (e)]
- entrant must be deceased or - NO such requirement
b) Person who has been convicted of falsification of a
unable to testify
document, perjury or false testimony is disqualified
- in a position to know the facts - mere knowledge of the acts
from being a witness to a will (Art. 821 NCC)
therein stated sufficient; NOT personal
knowledge
Demonstration – demonstrate in court. For example, in witness stand,
- made in his professional - made by electronic, optical or I can demonstrate this is how I slapped the victim. How should you
capacity or in the performance of other similar means put this on record: The counsel or the interpreter should record that
duty the witness with his right hand struck the victim towards his cheek.
- in the ordinary/regular course of - at or near the time of/from Demonstration is different from demonstrative evidence.
business/duty transmission/supply of
information Testimonial evidence - competency of the witness and ability to pass
- kept in the regular on info/relay info to the court. How will you know if a witness is
course/conduct of a business qualified. If people perceive and perceiving and can make known his
activity perception. A witness can perceive now; but tomorrow he cannot ---
such is not competent witness. One may be very intelligent; but

Page 24 of 88
cannot perceive – such is not competent a competent witness as he iv. Mental condition, at the time of their production for
only testifies on merely hearsay and not on his personal knowledge. examination, render them incapable of intelligently making
known their perception to others
Witnesses: qualifications; minimum requirements:
v. Mental maturity is such as to render them incapable of
perceiving the facts respecting which they are examined and
(1) Can perceive – senses
relating them truthfully
(2) Can make known his perception
vi. Marital disqualification
Witnesses can be impeached on cross examination by reason of
interest or bias. Cross examination is to impeach, to test truthfulness vii. Parental and filial privilege
or accuracy of testimony, free from bias or interest, and to elicit facts Relative disqualifications:
bearing upon the issue.
i. Dead man’s statute
Conviction – unless otherwise prevented ii. Marital communication privilege
e.g. witnesses convicted of falsification of document, perjury or false
testimony CANNOT be made witnesses to a will, state witness under iii. Attorney-client privilege
S17 R119
iv. Attorney's secretary, stenographer, or clerk concerning any
fact the knowledge of which has been acquired in such
Sec. 21. Disqualification by reason of mental incapacity or immaturity. —
The following persons cannot be witnesses: capacity
(a) Those whose mental condition, at the time of their production for v. Physician-Patient Privilege
examination, is such that they are incapable of intelligently making known
their perception to others; vi. Priest-Penitent Privilege
(b) Children whose mental maturity is such as to render them vii. State Secrets
incapable of perceiving the facts respecting which they are examined and
of relating them truthfully. (19a)
Disqualification by reason of mental incapacity or immaturity
For a mentally defective person to be a witness, he must be mentally
capable at the time of production, even if he was not so at the time of 1. Mentally incapacitated at the time perceived, at the time of
perception. A child must be mentally mature both at the time of his production as a witness – cannot be a witness
perception and at the time of production.
2. Mental immaturity – a child/minor
With regard to the subject matter of the testimony, we must make a
distinction between absolute disqualifications and relative CHILD WITNESS EXAMINATION RULE
disqualifications. Objections based on absolute disqualifications may
be raised upon the calling of the disqualified witness. Objections If placed on the stand, age is NOT really considered. It is his
based on relative disqualifications may be raised when it becomes perception. The parameter is that he should know what is good
apparent that the subject matter of the testimony covers inadmissible and bad, consequences of telling a lie, reason why he is placed on
matters. oath.

Competency examination determined/assessed by the judge


Absolutely disqualified witnesses: through his question, Do you know what it is like to tell a lie? Its
i. Can’t perceive consequences? Etc.

ii. Not perceiving Expanded – can bring support personnel, item


iii. Can’t make known their perception to others

Page 25 of 88
There can be video recording, deposition. Can be asked leading ⇒ Child tells the truth and knows the consequences of false
questions, hearsay so long as complies with certain requirements. testimony
Confidential documents, destroyed after a certain period ⇒ Knowing the oath (why he is placed at the stand) + can
perceive and make known his perception (competency exam)
deaf-mute – only a limitation to perception; can be a witness; use an ⇒ Guardian is entitled to notices, but CANNOT participate;
expert (interpreter) to verbalize the signs and communication; sign similar rule in case of default
language; when he sits at the stand, the verbal statements of such ⇒ Leading questions may be asked, also provided under R132
expert are recorded S10 (5 exceptions)
what if such interpreter is a family member or someone who knows Sec. 22. Disqualification by reason of marriage. — During their marriage,
the sign language? there’s still a need to qualify neither the husband nor the wife may testify for or against the other
without the consent of the affected spouse, except in a civil case by one
insane – may be a witness 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. (20a)
person previously placed in an institution – insanity is presumed to
continue under R131; must be sane at the time of production so he Requisites for marital disqualification rule:
can make known his perception to others
1) Marriage subsists
what about an interview made immediately? admissible as res gestae, 2) Spouse is a litigant
hearsay exception (e.g. media interview while an event is occurring)
3) No consent from the spouse-litigant
drug use – must be established during examination
4) Not a civil case by one against the other, or a criminal case for
a crime committed by one against the other or the latter's
if insane when you saw – NOT admissible; he CANNOT synthesize; e.g.
direct descendants or ascendants.
Alzheimer’s
GR: During their marriage, spouses may not testify for or against the
how are NON-believers of God sworn? through an affirmation – a other without the consent of the affected spouse
confirmation that he will tell the truth withOUT relying on a God, NO
fear
Exceptions:
witness – placed on oath regardless of belief on a God 1) Civil case by one against the other, or

credibility – determined later 2) Criminal case for a crime committed by one against
)a The other or
idiot – CANNOT testify
)b Other’s direct descendants or ascendants
mental retardate – distinguish: if slight, can be a witness because he
The marital disqualification rule refers to all matters and applies only
can perceive; if absolute, he CANNOT testify
during the existence of the marriage. It can be invoked only if one
spouse is a party to the action. It is an absolute disqualification and
autistic – determine level of autism
can be invoked the moment that one spouse is called to testify.
• mental capacity – material (mental condition)
• mental immaturity This is a testimonial disqualification, as opposed to the testimonial
privilege of ascendants and descendants (Rule 130 §25). Hence, the
Rule on child examination applies to both civil and criminal cases. witness has no say whether the objection is to be raised or not. The
holder of the privilege is the spouse-litigant. When the spouse-litigant
⇒ Child knows what is good and bad

Page 26 of 88
consents to the testimony, the spouse-witness must testify whether 3) Upon claim or demand against the estate of such deceased
he wants to or not. person or against such person of unsound mind
4) As to any matter of fact occurring before the death of such
cf Rule 130 §24 (a), Marital Communications
deceased person or before such person became of unsound
mind
Sec. 24. Disqualification by reason of privileged
communication. – The following persons cannot testify as 5) [NO counterclaim is filed]
to matters learned in confidence in the following cases:
(a) The husband or the wife, during or after the marriage,  Parties, Assignors or Persons in whose behalf a case is
cannot be examined without the consent of the other as to prosecuted
any communication received in confidence by one from the  There’s action being prosecuted
other during the marriage except in a civil case by one  Against an Executor/Administrator/other Representative of a
against the other, or in a criminal case for a crime deceased person or Against a person of Unsound mind
committed by one against the other or the latter's direct
 Nature of action: claim against the estate/person of unsound
descendants or ascendants;
mind

Can a NON-party testify?


Marital Disqualification Marital Communications NOT an absolute bar, only against the estate
Covers all matters regardless of Covers only those
source communicated by one spouse to Witnesses to a contract NOT covered by prohibition: recent SC case
another
Applies during the marriage Applies during and after the - only witnesses as they only attest; witnesses are NOT parties
marriage - checks allowed; documents may be produced (contracts)
A spouse must be a litigant A spouse need not be a litigant
Invoked when a spouse is called Invoked when the testimony Why is it called the Dead Man’s Statute?
to testify appears to cover privileged It pertains only to that portion referring to death, NOT insanity; thus,
matters inaccurate as the prohibition covers both death and insanity

Note that the exceptions under the marital disqualification and marital Sec. 24. Disqualification by reason of privileged communication. — The
communications rule are the same. following persons cannot testify as to matters learned in confidence in the
following cases:
Sec. 23. Disqualification by reason of death or insanity of adverse party. —
Parties or assignor of parties to a case, or persons in whose behalf a case Privileged Communications:
is prosecuted, against an executor or administrator or other representative
of a deceased person, or against a person of unsound mind, upon a claim 1) marital
or demand against the estate of such deceased person or against such 2) attorney-client
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 3) physician-patient
of unsound mind. (20a) 4) priest-penitent
5) state secrets
Requisites for dead man’s statute:
 Relationship is a consideration, though NOT primary
1) The witness sought to be disqualified is the plaintiff
 Nature of communication: confidential; makes it a
2) Executor, administrator or representative of a deceased disqualification
person, or the person of unsound mind is the defendant

Page 27 of 88
This is a rule of relative disqualification. Each of those enumerated is received in confidence by one from the other during the marriage except
disqualified to testify as to specific matters only. It does not disqualify in a civil case by one against the other, or in a criminal case for a crime
them from testifying on matters not privileged. Hence, it is improper committed by one against the other or the latter's direct descendants or
to object to their testimony upon mere subpoena. One must wait until ascendants;
it becomes apparent that their testimony covers matters that are
privileged (e.g. upon asking of a question that covers privileged ⇒ communication received in confidence
matters; when the purpose of their testimony as admitted by the
offeror covers privileged matters) before one may properly object. Requisites for Marital Communications Rule:

Though a relative disqualification, it is nevertheless a testimonial 1) Communication received


disqualification, as opposed to the testimonial privilege of ascendants a) From the spouse
and descendants (Rule 130 §25). [careful not to be confused in the
multiple meanings of the word “privilege”] Hence, the witness has no b) In confidence
say whether the objection is to be raised or not. When the holder of c) During the marriage
the privilege (not necessarily the opposing party) consents to the
testimony, the witness must testify. 2) Without the consent of the spouse
Note that the marital communication rule applies even after the
Note that the wording of the law is to the effect that “(someone) may
marriage. It applies only to matters communicated by one spouse to
not be examined without the consent of (another).” The law does not
another in confidence. It does not cover knowledge of matters that a
say that one can not testify or be examined over the objection of
spouse obtains from a source other than other spouse.
another. The wording of the law is to the effect that an objection of
the other party in the privileged communication is not necessary for
It can be invoked even if neither spouse is a party to the action. It is a
the privilege to hold. Consent of the other party in the privileged
relative disqualification and can be invoked only when it is apparent
communication is an act that needs to be proved for the testimony to
that the testimony would cover privileged matters.
be admitted. This is not to say that failure of a such a party to object
will never render such testimony admissible. This is to say that where
the other party to the privileged communication is not a litigant in the The exceptions to the rule are:
case, and privileged communication is offered in evidence without the
consent of such party, the litigant against whom the testimony is 1) Civil case by one against the other, or
offered may object to its admission on the ground of privileged 2) Criminal case for a crime committed by one against the other
communication. Where the other party in the privileged or the latter's direct descendants or ascendants
communication is a litigant, then his failure to object will be taken as a
consent to the testimony or a waiver of a privilege. cf Rule 130 §22: Marital Disqualification Rule

The communication that is privileged need not be in any form. It can Sec. 22. Disqualification by reason of marriage. – During
be oral or written. their marriage, neither the husband nor the wife may
testify for or against the other without the consent of the
The communication ceases to be privileged if knowingly affected spouse, except in a civil case by one against the
communicated in the presence of 3rd persons. In such a case, the other, or in a criminal case for a crime committed by one
privilege may not be invoked at all. However, if the privileged against the other or the latter's direct descendants or
communication was within the surreptitious observation of a 3 rd ascendants. (20a)
person, then the communication can be invoked if either the The marital disqualification rule refers to all matters and applies only
communicator or communicatee called to testify. However, the during the existence of the marriage. It can be invoked only if one
privilege can not be invoked if the 3rd person is called to testify. spouse is a party to the action. It is an absolute disqualification and
can be invoked the moment that one spouse is called to testify.
(a) The husband or the wife, during or after the marriage, cannot be
examined without the consent of the other as to any communication

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1. Marriage - Info received in confidence (vs. sec 22). Legally married, 1) Existence of an attorney-client relationship
except in civ/crim case by one against the other or involving their
2) Witness is an attorney
ascendants or descendants.
3) As to communication made by the client to him, or his advice
S22 S24 (a) given thereon
Marriage Privilege
4) Communication was made in confidence
During marriage During and after marriage
Any matter Confidential 5) Communication was made in the course of, or with a view to
Case of 1 spouse against the Any case; need NOT be a case of professional employment
other 1 spouse; NO distinction
(testify) The privilege extends to the attorney's secretary, stenographer, or
clerk concerning any fact the knowledge of which has been acquired
Invoked by spouse
in such capacity. The difference being consent of only the client is
Exceptions:
needed for the attorney to testify. However, the consent of both the
(1) civil case between 1 spouse against the other
attorney and the client is necessary for the attorney's secretary,
(2) criminal case between 1 spouse against the other/latter’s
stenographer, or clerk to testify.
direct ascendants and descendants
The attorney-client privilege does NOT apply if the attorney was sued
Requisites:
by his client.
1) Valid marriage – a de facto marriage is NOT a valid
one; NOT legal
2. Atty.-Client relationship – NOT just the course of employment
2) Confidential communication by nature, NOT intention
(existing relationship), but also in view of professional engagement
3) Privilege is claimed with regard to a communication,
(giving advise when client went to the office); likewise applies to the
oral or written
steno, sec, clerk of the atty; subject to waiver by both client and
lawyer; Joinders can share info
e.g.
 By reason of communication; must be lawful
husband’s letter to his wife read to a close friend by her – there’s
agency  Attorney-client relationship is important
husband’s letter to his wife read before an audience/in class – NO  Any communication in the light of the relationship
agency; intended to be for public consumption  NOT just any communication; now limited: (1) in view to
professional employment; and (2) in the course of professional
Person who overhears can testify – NO agency employment
 Lawyer gives advice; client gives communication
* How parties desire to treat the communication related  NO written agreement required
 Engagement letter is ideal
(b) An attorney cannot, without the consent of his client, be examined  Private practitioners, single practitioners and small firms
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 “in the course of” – a question of fact
can an attorney's secretary, stenographer, or clerk be examined, without
the consent of the client and his employer, concerning any fact the if merely exploratory – NO relationship yet; NOT yet privileged
knowledge of which has been acquired in such capacity; communication; NO advice

⇒ communication made by the client to an attorney or advice “with a view to” – NO relationship yet and communication is
given by the attorney relayed/disclosed; regardless of the consummation of the attorney-
client relation
Requisites for attorney-client privilege:

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Requisites: 1) Civil case
 Attorney-client relationship
2) Witness is a person authorized to practice medicine, surgery
 Communication made with a view to (courtship stage) or in or obstetrics
the course of professional employment
 Covers lawyer’s secretary, stenographer, clerk – information is 3) As to any advice or treatment given by him or any information
received in such capacity; need consent of both lawyer and which he may have acquired in attending such patient in a
client (e.g. facts of the case, evidence) professional capacity
4) Information was necessary to enable him to act in that
(c) A person authorized to practice medicine, surgery or obstetrics
capacity
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 5) Information would blacken the reputation of the patient
have acquired in attending such patient in a professional capacity, which
information was necessary to enable him to act in capacity, and which The old rule used the word “character” (what the person actually is).
would blacken the reputation of the patient; The new rules use the word “reputation” (what people think of the
person).
⇒ advice or treatment given by the doctor or information doctor
may have acquired in attending such patient in a professional Note that the patient need not be the source of the information.
capacity (necessary to enable him to act in that capacity +
would blacken client’s reputation) Only persons authorized to practice medicine, surgery or obstetrics
are covered by the privilege. Hence, nurses, midwives and other
Waivers of the physician-patient privilege, cf Rule 28, Sec. 3 and 4 people who attend to the ill can be called to testify as to any matter.

Sec. 3. Report of findings. — If requested by the party The privilege does NOT cover expert opinion as long as the witness
examined, the party causing the examination to be made does NOT testify to matters specifically referring to the patient.
shall deliver to him a copy of a detailed written report of
the examining physician setting out his findings and There is NO physician-patient privilege in criminal cases.
conclusions. After such request and delivery, the party
causing the examination to be made shall be entitled upon 3. Doctor-patient privilege - Involves a civil case (i.e. medico-legal,
request to receive from the party examined a like report of autopsy report); advice given at the time relationship exists; info
any examination, previously or thereafter made, of the acquired during relationship and there is a necessity to give advice
same mental or physical condition. If the party examined - Privilege applies if disclosure would blacken reputation of the
refuses to deliver such report, the court on motion and patient; includes patients who have no freedom of
notice may make an order requiring delivery on such terms choice/insane/child/mentally immature
as are just, and if a physician fails or refuses to make such - this should be a civil case and the info received is in a professional
a report the court may exclude his testimony if offered at relationship that if such is disclosed, it would blacken reputation of the
the trial. (3a) patient

Sec. 4. Waiver of privilege. — By requesting and obtaining e.g. if I visited MMC because of hypertension - such would not blacken
a report of the examination so ordered or by taking the my reputation but SARS, T.B. could blacken reputation
deposition of the examiner, the party examined waives any
privilege he may have in that action or any other involving Requisites:
the same controversy, regarding the testimony of every  physician-patient relationship created
other person who has examined or may thereafter examine  civil case
him in respect of the same mental or physical examination.  advice, treatment or information is acquired in a professional
(4) capacity
Requisites for physician-client privilege:

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- relationship is created thru medical record; Doctor of Medicine
(Medicine, Surgery, Obstetrics); psychiatrists included; dentists NOT Requisites:
included but bound by their ethical standard  confession made or advice given in a professional character
 in the course of discipline enjoined by the church of the
- interns, optometrists, midwife, hilot, iridology NOT included minister/priest

- civil case – reputation v. the greater interest of justice; why? Autopsy - Mike Velarde and Pastor NOT covered; only Catholic religion enjoins
report used in a criminal case you to confess

- criminal case NOT covered - look at the discipline (whether enjoined by the church)

- laboratory report – if with request from doctor, it is covered; if by - public confession at Luneta – if NOT enjoined, NOT covered
patient’s initiative alone, NOT covered
- confidential nature of confession
- “father of child” – pregnancy test: NOT covered
* Do NOT confuse with the rule with respect to privileged
 outside of doctor’s concern (e.g. why it happened); only communication in libel.
incidents but bound by ethical standards
 information necessary to attend to the patient In Brillante v. People, G.R. Nos. 118757 & 121571, October 19, 2004,
 would blacken the reputation of the patient (e.g. STD, Bobby Brillante, questions his convictions for libel for writing and
impotency, frigidity, nervous breakdown, TB, drug causing to be published in 1988 an open letter addressed to then
dependence and rehabilitation [in the Philippines]) President of the Republic of the Philippines Corazon C. Aquino
 Does privilege extend to nurses, staff, medical technicians? discussing the alleged participation of Atty. Jejomar Binay (Binay),
NO; NOT covered then the “OIC Mayor” and a candidate for the position of Mayor in the
Municipality (now City) of Makati, and Dr. Nemesio Prudente
(d) A minister or priest cannot, without the consent of the person (Prudente), then President of the Polytechnic University of the
making the confession, be examined as to any confession made to or any Philippines, in an assassination plot against Augusto Syjuco (Syjuco),
advice given by him in his professional character in the course of another candidate for Mayor of Makati at that time.
discipline enjoined by the church to which the minister or priest belongs;
On January 7, 1988, Brillante, then a candidate for the position of
⇒ confession made to a minister/priest or advice given by such Councilor in Makati, held a press conference at the Makati Sports Club
minister/priest in his professional character in the course of which was attended by some 50 journalists. In the course of the
discipline enjoined by his church press conference, Brillante accused Binay of plotting the assassination
of Syjuco. He further accused Binay of terrorism, intimidation and
Requisites for Priest-Penitent Privilege: harassment of the Makati electorate. Brillante also circulated among
the journalists copies of an open letter to President Aquino which
1) Witness is a minister or priest discussed in detail his charges against Binay.
2) As to any confession made to or any advice given by him in
his professional character Libel is defined under Article 353 of the Revised Penal Code as “a
public and malicious imputation of a crime, or of a vice or defect, real
3) In the course of discipline enjoined by the church to which the or imaginary, or any act, omission, condition, status, or circumstance
minister or priest belongs tending to cause the dishonor, discredit or contempt of a natural or
juridical person, or to blacken the memory of one who is dead.”
4. Priest/minister and penitent – If Mr. Ong shared his deepest darkest
secrets to the priest who later gave him advise, this is covered by the
To be liable for libel, the following elements must be shown to exist:
privilege; priest/minister must be enjoined by the discipline to which
(a) the allegation of a discreditable act or condition concerning
they belong

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another; (b) publication of the charge; (c) identity of the person any statement, report, or speech delivered in said
defamed; and (d) existence of malice. proceedings, or of any act performed by public officers in the
exercise of their functions.
Article 354 of the Revised Penal Code states, as a general rule, that
every defamatory imputation is presumed to be malicious, even if The purpose of affording protection to privileged communication is to
true, if no good intention and justifiable motive is shown. permit all interested persons or citizens with grievances to freely
communicate, with immunity, to the persons who could furnish the
As an exception to the rule, the presumption of malice is done away protection asked for. However, to shield such privilege from abuse,
with when the defamatory imputation qualifies as privileged the law itself requires at all times that such petitions or
communication. communications shall be made in good faith or with justifiable
motives. If it is established that the communication was made
Privileged communication may either be absolutely privileged or maliciously or to persons who could not furnish the protection sought,
conditionally privileged. The Court in Orfanel v. People of the then the author thereof cannot seek protection under the law. As was
Philippines, 141 Phil. 519 (1969), differentiated absolutely privileged explained by the Court in U.S. v. Cañete, 38 Phil. 253 (1918),
communication from conditionally privileged communication in this
manner: The plainest principles of natural right and
sound public policy require that the utmost possible
…A communication is said to be absolutely freedom should be accorded every citizen to complain
privileged when it is not actionable, even if its author to the supervising, removing and appointing authorities
acted in bad faith. This class includes statements of the misconduct of the public officials with whom he
made by members of Congress in the discharge of comes into contact, and like considerations make it
their functions as such, official communications made equally proper that members of a religious
by public officers in the performance of their duties, organization should enjoy equal freedom in bringing to
and allegations or statements made by the parties or the attention of the church authorities the misbehavior
their counsel in their pleadings or motions or during of their spiritual leaders or of fellow-members.
the hearing of judicial proceedings, as well as the Manifestly, the right must be exercised in good faith,
answers given by witnesses in reply to questions and may not with impunity be made the occasion for
propounded to them, in the course of said proceedings, the venting of private spite. It is subject to the
provided that said allegations or statements are limitation and restriction that such complaints must be
relevant to the issues, and the answers are responsive made to a functionary having authority to redress the
or pertinent to the questions propounded to said evils complained of; that they must be made in good
witnesses. Upon the other hand, conditionally or faith and that they must not be actuated by malice.
qualifiedly privileged communications are those
which, although containing defamatory imputations, The fact that a communication is privileged does not mean that it is
would not be actionable unless made with malice or not actionable; the privileged character of the communication simply
bad faith. does away with the presumption of malice, and the plaintiff has to
prove the fact of malice in such case. However, since the open letter
Conditionally or qualifiedly privileged communications are those and the statements uttered by Brillante during the January 7, 1988
mentioned in, Article 354 of the Revised Penal Code, to wit: press conference are defamatory and do not qualify as conditionally
privileged communication, malice is presumed and need not be
1. A private communication made by a person to proven separately from the existence of the defamatory statement.
another in the performance of any legal, moral, or social duty;
and Unfounded and malicious statements made by one against another in
the course of an election campaign, or by reason of differences in
2. A fair and true report, made in good faith, without political views are not per se constitutionally protected speech. Our
any comments or remarks, of any judicial, legislative, or other laws on defamation provide for sanctions against unjustified and
official proceedings which are not of confidential nature, or of malicious injury to a person’s reputation and honor. Although wider

Page 32 of 88
latitude is given to defamatory utterances against public officials in a. RA 1405 (Bank Secrecy Law) - Secrecy of bank
connection with or relevant to their performance of official duties, or deposits; CANNOT disclose details, how much you have; EXC:
against public figures in relation to matters of public interest involving court order, dereliction of a public officer, impeachment case
them, such defamatory utterances do not automatically fall within the (can be disclosed)
ambit of constitutionally protected speech. If the utterances are false,
malicious or unrelated to a public officer’s performance of his duties, RA 1405: Law on Secrecy of Bank Deposits
the same may give rise to criminal and civil liability.
Sec. 2. All deposits of whatever nature with banks or
banking institutions in the Philippines including investments
 Privileged communication is a defense in libel because the
in bonds issued by the Government of the Philippines, its
nature of the information is privileged so it is protected; NOT
political subdivisions and its instrumentalities, are hereby
intended to malign/mislead; general intention was to reform
considered as of an absolutely confidential nature and may
 Prescription: how interrupted? Filing with the fiscal not be examined, inquired or looked into by any person,
 Venue: place of publication/residence government official, bureau or office, except upon written
 In this case, it was held that it was NOT privileged permission of the depositor, or in cases of impeachment, or
communication. upon order of a competent court in cases of bribery or
 Therefore, refer to this case in relation to libel, NOT evidence. dereliction of duty of public officials, or in cases where the
money deposited or invested is the subject matter of the
(e) A public officer cannot be examined during his term of office or litigation.
afterwards, as to communications made to him in official confidence,
when the court finds that the public interest would suffer by the GR: All deposits of whatever nature with banks or banking institutions
disclosure. (21a) in the Philippines including investments in bonds issued by the
Government of the Philippines, its political subdivisions and its
⇒ Communications made to a public officer in confidence whose instrumentalities, are hereby considered as of an absolutely
disclosure shall make the public interest suffer confidential nature and may not be examined, inquired or looked into
by any person, government official, bureau or office.
Requisites for the State Secrets rule:
1) Witness is a public officer Exceptions:

2) As to communications made to him in official confidence 1) Written permission of the depositor

3) The court finds that the public interest would suffer by the 2) Impeachment
disclosure 3) Order of a competent court in cases of
a) bribery
5. Public officer couldn’t be examined during and after his term on
matters he received on official confidence/capacity. The court b) dereliction of duty of public officials
determines if fit to be disclosed or not, not the public officer. 4) Where the money deposited or invested is the subject matter
of the litigation
Requisites:
1) Public officer The privilege applies only to bank deposits. As to other property being
2) Communications made to him in confidence held by a bank, bank personnel may be examined upon order of a
3) Court finds that the public interest would suffer by the court. (RA 8791)
disclosure
b. RA 1477 – GR: Publisher, editor, duly accredited
6. Other Privileged Communication reporter CANNOT reveal source of their data or info; EXC:
Court, House/Committee of Congress finds such revelation is
demanded by the security of the State.

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1) Director, officer, employee, or agent of any bank
RA 53 as amended by RA 1477
2) Disclosure to unauthorized person
Sec. 1. Without prejudice to his liability
3) Information relative to the funds or properties in the custody
under the civil and criminal laws, the publisher,
of the bank belonging to private individuals, corporations, or
editor, columnist or duly accredited reporter of
any other entity
any newspaper, magazine or periodical of
general circulation cannot be compelled to 4) WithOUT a court order
reveal the source of any news-report or
information appearing in said publication which  This provision covers only property in the custody of the bank other
was related in confidence to such publisher, than bank deposits. For bank deposits, RA 1405 governs.
editor or reporter unless the court or a House or
committee of Congress finds that such revelation d. Qualified voter as to whom he voted for, unless a tool
is demanded by the security of the State. of fraud (flying voter can be compelled because he is NOT
Requisites of newsman’s privilege: qualified, disenfranchisement results)  to know who
perpetrated the fraud
1) Publisher, editor, columnist or duly accredited reporter
e. Trade Secrets – formulas; exception: to know who
2) Of any newspaper, magazine or periodical of general
really owns it (dispute); upon a court order
circulation
 Trademark is NOT a trade secret (Property Law); need to
3) CANNOT be compelled to reveal register to be protected
 Patent applies to inventions
4) As to the source of any news report or information appearing
in said publication  Copyright – author of literature, publication, movie

5) Related in confidence Disclosure of info during census? Census is when somebody goes
to your house asking how many you are in the house, few more
Exception: Court, a House or committee of Congress finds that such
details. You have to be careful of those persons.
revelation is demanded by the security of the State.
B.P. 22 case. Pretend I sued Mr. Ong because his checks bounced.
c. RA 8791 (General Banking Act of 2000)
Can prosecution call on/subpoena bank officer to testify on the
details of his accounts? Yes, you can because you need to
General Banking Act of 2000, RA 8791, §55.1 (b)
establish that the checks were drawn against insufficient funds.
Sec. 55. Prohibited Transactions. -
2. TESTIMONIAL PRIVILEGE
55.1. No director, officer, employee, or
agent of any bank shall – Sec. 25. Parental and filial privilege. — No person may
(b) Without order of a court of competent be compelled to testify against his parents, other direct
jurisdiction, disclose to any unauthorized ascendants, children or other direct descendants. (20a)
person any information relative to the funds or
properties in the custody of the bank There is NO distinction between legitimate or illegitimate relations.
belonging to private individuals, corporations, This is to preserve family cohesion and maintain harmony of the
or any other entity: Provided, That with family as a whole. This should be invoked, otherwise, it is waived.
respect to bank deposits, the provisions of
existing laws shall prevail; This is NOT a prohibition to sue, but only that you are prevented from
testifying on these matters. (why/why NOT you can testify 
Elements of the exclusion testimonial evidence)

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This is a testimonial privilege, NOT a testimonial disqualification, – may be judicial or extrajudicial – may be in and out of court
found in §22-24 of Rule 130 [careful not to be confused in the multiple (judicial and extrajudicial as well).
use of the word “privilege”]. Here, the witness is the holder of the In confessions, you should comply
privilege and has the power to invoke or waive the privilege. The with requirements of custodial
relative against whom he is testifying cannot invoke nor waive the investigation. Examples of
privilege. However, this must be construed in the light of Art. 215 of judicial confessions: at
the Family Code. arraignment, plea for lesser
offense, on the stand confessed
Art. 215. No descendant shall be compelled, in a criminal commission of the offense
case, to testify against his parents and grandparents, (withdrawal of previous plea of
except when such testimony is indispensable in a crime not guilty; otherwise explain why
against the descendant or by one parent against the other. commit the offense)
(315a)
Hence, a descendant may be compelled to testify in a criminal case
Self-serving statement is one made out of court. This is not allowed
where
while being examined in court.
i. Descendant-witness himself is the victim, or
Admission vs. Declaration against Interest
ii. Descendant-witness’s parent commits a crime against the Admission Declaration against interest
descendant-witness’s other parent.
party sits on stand, admits secondary evidence. Person who
Note that an ascendant may not be compelled to testify even if it is a material fact. Primary evidence declared is unavailable or dead
crime by the descendant against the ascendant-witness. The
ascendant-witness may testify voluntarily though. The general rule is evidence as to extra-judicial acts, omissions, and
declarations (AODs) of a party is admissible.
3. ADMISSIONS AND CONFESSIONS
These evidence can either be favorable or unfavorable to a party. Rule
Sec. 26. Admission of a party. — The act, declaration or omission of a 130, §26 expressly allows evidence of AODs prejudicial to the AODer.
party as to a relevant fact may be given in evidence against him. (22)
However, an objection may be raised as to the admissibility of AODs
Admissions favorable to the AODer on the grounds of that these are self-serving
AODs. The argument is “Rule 130 §26 only allows evidence of AODs
Admissions that are admissible against a party: prejudicial to the AODer.”

1) Admissions against interest However, §26 is only a rule of admissibility. It allows evidence of AODs
prejudicial to the AODer, but does not prohibit evidence on AODs
2) Compromises
favorable to AODer. There being no express prohibition, any evidence
3) Exceptions to Res Inter Alios Acta on AODs favorable to the AODer falls under the general rule that
evidence not excluded by law or the Rules is admissible (Rule 128 §
a. Partner’s/Agent’s admissions 3). Any doubt as to such evidence refers to its weight or probative
b. Co-conspirator’s statements value and not to its admissibility.

c. Admission by Privies Self-serving statements = hearsay? Declaration against interest is an


4) Admissions by silence exception to the hearsay rule only applies if the declarant is deceased
or unable to testify. Self-defeating statements cannot be excluded by
Admission vs. Confession the hearsay rule because it is expressly admissible by the rules.
Admission Confession

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S26 is the general concept of an admission and it covers both judicial
and extra-judicial. Offer of compromise (sec 27)

GR: statement of a material and relevant fact of a person cannot 1) Offer of a party cannot be taken against him
affect 3rd party 2) In a criminal case, offer of compromise by the accused, can be
taken as admission of guilt; except quasi-offenses (reckless
R129, S4 is a judicial admission offenses) and crimes specifically stated by law cannot to be
not subject to compromise. Assistance in hospitalization,
2 Kinds of Admission: expenses is not to be taken as an admission of guilt or liability
so as not to restrain people to help victims while they are
Judicial Extra-judicial suffering.
Before whom made
1. Court (made during pre-trial, 1. Public officer charged with law Compromise – amicable settlement; NOT the full relief as there is a
trial, deposition, pleadings, enforcement/peace officer need to adjust; to avoid waste of time, set an amount and negotiate
request for admission) (custodial investigation) on terms
 comply with the constitution,
Miranda doctrine and RA 7438 The offer of compromise in civil cases is not admissible only as
(An Act Defining Certain Rights of evidence of liability. If the offer of compromise is offered as evidence
Person Arrested, Detained or on other matters (e.g. amount of liability), then the evidence is
under Custodial Investigation) admissible.
* self-serving declarations are 2. Ordinary person
unsworn statements made by  NO need to comply; ordinary In civil cases, an offer of compromise is inadmissible regardless of the
declarant out of court and which person can testify as to the fact cause of action. In criminal cases, the general rule is an offer of
are favorable to his interests that he narrated (an Independent compromise is admissible. However, it is inadmissible under the
Relevant Statement) but NOT as following cases:
to the narration’s truthfulness as
this would be hearsay 1) Quasi-offenses (criminal negligence)
 merely to establish the fact 2) Cases allowed by law to be compromised (e.g. BIR can
that the statement was made/the compromise tax cases)
tenor of such statement
3) Plea of guilty later withdrawn
Confession: crime charged; guilt/liability 4) Unaccepted offer to plead guilty to a lesser offense
Admission: material or relevant fact
5) Offer to pay or payment of expenses occasioned by an injury
Sec. 27. Offer of compromise not admissible. — In civil cases, an offer of [The offer is made only to avoid the consequences of litigation.]
compromise is not an admission of any liability, and is not admissible in
evidence against the offeror. Note that the inadmissible offer to pay refers only to expenses
In criminal cases, except those involving quasi-offenses (criminal occasioned by an injury. It does not include offers to pay other
negligence) or those allowed by law to be compromised, an offer of expenses. Ergo, an offer to pay for damages to property is admissible
compromise by the accused may be received in evidence as an implied in criminal cases.
admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty Further note that an offer to pay for expenses other than those
to lesser offense, is not admissible in evidence against the accused who occasioned by an injury is inadmissible in civil cases. Though the 3rd
made the plea or offer. paragraph of §27 excludes in civil cases offers to pay only for
An offer to pay or the payment of medical, hospital or other expenses expenses occasioned by an injury, offers to pay for other expenses fall
occasioned by an injury is not admissible in evidence as proof of civil or under the general rule that an offer to compromise in civil cases is not
criminal liability for the injury. (24a)

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admissible. The exclusion in civil cases of offers to pay for expenses Offer to pay/payment of medical, hospital, or other expenses – so as
occasioned by an injury is merely a superfluity. Even if the exclusion NOT to prevent people from giving assistance
was expressly applied to only criminal cases, an offer to pay for
expenses occasioned by an injury is in the nature of an offer to Sec. 28. Admission by third party. — The rights of a party cannot be
compromise which is undoubtedly inadmissible in civil cases. The prejudiced by an act, declaration, or omission of another, except as
bottomline is: an offer to pay for any expense in civil cases is hereinafter provided. (25a)
inadmissible.
The general rule is extra-judicial acts of a person other than a party
Criminal case NOT subject of compromise but you could file: are inadmissible against such party.
The rights of a party cannot be prejudiced by the act, omission or
1) Affidavit of desistance
declaration of another, except joint interest.
2) Motion to dismiss for failure to prosecute  dismissal with
prejudice Admission of a party – admissible

 affidavit of desistance with fiscal (DOJ) is “pabuya” and is However, the rules also provide for exceptions
NOT recorded with the fiscal Admission of a third party – inadmissible except in the following
 if in court, could you compromise? NO as there is an instances:
information and the offended party is only a prosecuting
witness 1) Partner’s admissions

 offer from accused can be taken against him because the law 2) Agent’s admissions
presumes that persons would not compromise for a wrong 3) Admissions by a joint debtor, joint owner or other
deed/crime  affidavit of desistance with fiscal’s consent and person jointly interested with the party.
then the fiscal examines its voluntariness and due execution
 what if there’s an affidavit of desistance but NO arraignment? 4) Co-conspirator’s statements
Arraign so jeopardy would attach (with prejudice); Rules would 5) Admission by privies
NOT apply at the prosecutor’s level
All the exceptions to res inter alios acta require that the relationship
 Plea Bargaining ≠ Compromise
be proven by evidence independent of the act or declaration sought to
be admitted.
Civil case: In practice, may be compromised before judgment
becomes final and executory; consider satisfaction of judgment under
Sec. 29. Admission by co-partner or agent. — The act or declaration of a
R39 and relase/quitclaim if you could settle before there is a judgment
partner or agent of the party within the scope of his authority and during
the existence of the partnership or agency, may be given in evidence
Pending action: compromise?
against such party after the partnership or agency is shown by evidence
Better file a joint motion to dismiss (with or without prejudice);
other than such act or declaration. The same rule applies to the act or
compromise is NOT disclosed to the court; closest R17 declaration of a joint owner, joint debtor, or other person jointly interested
with the party. (26a)
Dismissal and internal agreement – is there a need to refile? Yes, if
without prejudice Requisites for admission by co-partner or agent:
Thus, it is best to have a Compromise Agreement approved by the 1) Act or declaration of a partner, agent, or person jointly
court because it becomes the judgment; if this is violated, move for interested with the party
execution.
2) Within the scope of authority
Exception: Criminal Negligence (Quasi-offenses) can be compromised;
insurance adjuster 3) Made during the existence of the partnership, agency or joint
interest

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4) Partnership, agency, or joint interest is shown by evidence 2) NO other direct evidence available
other than such act or declaration 3) Testimony can be substantially corroborated in its material
points
4) Accused does NOT appear to be the most guilty
partner or agent – establish partnership by fact other than the 5) Accused has NOT at any time been convicted of any offense
admission of the partner such as the certificate of registration of involving moral turpitude
partnership, document (agreement/contract stating such partnership
[ex. Bank loan]), or testimony (as to its dealings); partner acting If you ask “Did you admit an extra-judicial confession made?” at the
within scope of authority; and during the existence of the relationship. witness stand – NOT admissible because what is sought is to establish
Take note of those requisites as they more or less apply to the rest, conspiracy itself; conspiracy should be established by acts in its
save for certain words. furtherance
Agency – agency must be established by facts other than the
 if in court, prohibition does NOT apply; judicial admission of
admission. How constituted? Through a GPA (admi),
conspiracy is admissible
specific/ownership (SPA). Show authority. Act was made during the
existence of the agent-principal relationship. Same as in joint debtor,
Co-conspirators – conspiracy established by facts other than the
interest, owner (they have commonality of interest in all)
admission; common object; testify on matters taken during the
conspiracy. Ex. Mr. Ong was with me when I robbed the bank – not
Agent – unity of interest because he affirms and confirms principal’s
allowed. Our relationship should as co-conspirators be established by
acts; during agency’s existence and within the scope of his authority
others/other circumstances. Like by persons who can testify on
(otherwise, ultra vires; subject to ratification subsequent to the act)
certain circumstances: Mr. Ong purchased a gun from Mr. Sandoval’s
gun shop – Mr. Sandoval can testify that at a certain point Mr. Ong
Sec. 30. Admission by conspirator. — The act or declaration of a
bought a gun. Ms. Aquitania can testify against Mr. Ong and myself
conspirator relating to the conspiracy and during its existence, may be
that she went to my condo unit at this particular time of the day.
given in evidence against the co-conspirator after the conspiracy is shown
Maid can testify she heard exchange of info bet us. What is that
by evidence other than such act of declaration. (27)
Common object? Crime committed. Let’s say we robbed Equitable
This is an extra-judicial admission. Bank Paseo de Roxas. Can I testify on the robbery that we made on
Equitable Ayala Avenue two months ago? Under this provision, no
Requisites for co-conspirator’s statements: because it is not part of common object but yes, under section 34:
similar acts as evidence to establish we have scheme, knowledge,
1) Act or declaration of a conspirator intent, pattern.
2) Relating to the conspiracy
A previous act cannot be presented to convict them of a different
3) Made during its existence offense, such a robbery of Equitable Paseo. Evidence can be
presented to establish we have scheme, knowledge, intent, or pattern,
4) The conspiracy is shown by evidence other than such act of but not for purposes of convicting us of a crime for which we are
declaration. charged for this particular time (Equitable Ayala). Some of the
Conspiracy is NOT a state of mind; there’s an overt act; there’s unity circumstances surrounding the conspiracy may include buying,
of purpose/object and acts in furtherance of the common object disposing of the fruit of the crime, and our meetings.

GR: NOT punishable Sec. 31. Admission by privies. — Where one derives title to property from
Exc: causes provided by law (treason, sedition) another, the act, declaration, or omission of the latter, while holding the
title, in relation to the property, is evidence against the former. (28)
R119 S17 Discharge of the accused to be a state witness; 5 requisites:
Requisites for admission by privies:
1) Absolute necessity for the testimony 1) Party derives title to property from another

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2) Act, declaration, or omission of the transferor
Your character can be questioned and reputation doubted/affected.
3) Made while holding the title
4) In relation to the property e.g. big conference room and X used a microphone

There is successional interest. Loose application: Erap failed to comment/act as to those statements
e.g. seller told buyer, while holding title, that usufruct exists [act, made during the hype of the impeachment – NOT in his presence
declaration or omission affects the buyer so buyer presents seller’s
admissions] Admission by silence is another rule which is not properly applied. It
is very important to take note that in admission by silence that a
This is a situation where Mr. Ong derived title from me. Thus, my statement was made in your presence or within your hearing and
acts/declarations have significance only as to the title as to the time I understanding such that you understand the statement or declaration.
am holding the property, not after because at that moment, I was still And while hearing the statement or declaration, it naturally calls for a
in possession of the property and has title over it. After I disposed of comment or answer if not true. But you never gave a comment. In
the property, my declarations can no longer affect the said property. addition, take note that your giving a comment or answer if not true is
under the condition that a comment is proper under the
Exceptions: circumstances.

1) Declaration made in the presence of the transferee and he Let’s say, we are in this auditorium and I made a statement as against
acquiesce to the statement one of your classmates. Considering of course, as a matter of respect
2) Continuing conspiracy to defraud as between the vendor and to the professor, even if it was a statement against that person, it
the vendee might not be proper for him to react at the very moment in the
3) Prima facie case of fraud established such that the property presence of the classmates. So it does not necessarily mean that you
have to comment immediately if the same is not true. The
remains to be with the possession of the seller or the
circumstances under which such statement had been made should be
transferor even after the sale was effected
that it is proper for you under the circumstances to make a comment
or an answer. And because of the silence, there is some inference as
Sec. 32. Admission by silence. — An act or declaration made in the
to the fact being referred to. It is that silence that leads to some
presence and within the hearing or observation of a party who does or
inference.
says nothing when the act or declaration is such as naturally to call for
action or comment if not true, and when proper and possible for him to do
so, may be given in evidence against him. (23a) Sec. 33. Confession. — The declaration of an accused acknowledging his
guilt of the offense charged, or of any offense necessarily included
Requisites for admission by silence: therein, may be given in evidence against him. (29a)

1) Act or declaration is made in the presence and within the Confession is an admission of guilt.
hearing or observation of a party This rule is applicable only in criminal cases.
A confession need not be in writing in order to be admissible in
2) Party does or says nothing evidence.
3) Act or declaration naturally calls for action or comment if not If it is in writing, it is NOT required to be under oath.
true
However, if it is not in writing, the prosecution may find difficulty in
4) Such action or comment is proper and possible on the part of proving it.
the party.
 action or comment “when proper” 2 Kinds of Confession:
 presence within hearing/observation
Judicial Extra-judicial
 prejudicial to recipient
Before whom made

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1. Court – made during 1. Private Individual – NO need to  due process (you can only be convicted of offense charged or that
arraignment, trial comply; Independent Relevant necessarily included therein)
e.g. change of plea during Evidence  evidence admissible to establish modus operandi but this is only to
questioning  terminate cross show manner of committing offense (pattern) and NOT to convict
examination unless there shall be
a need for proving mitigating This is available to both the accused and prosecution. [“did/did NOT
circumstance do”]
 clerk reads information; judge
renders sentence e.g. factory worker’s time card to show that it was impossible for him
2. Police/Public Officer – comply to be at the crime scene
with the requirements (custodial
investigation) Similar Acts as Evidence. Just take note that the fact that you did or
did not do a thing or a particular act cannot be proven by the fact
e.g. accused convicted of rape in court under the “sweetheart theory” that you did or did not do another thing at some other time. Let’s say
a robbery was committed in Equitable-Paseo de Roxas. It does not
– NOT admission by silence, but there is failure to refute necessarily mean that in the constitution of the said robbery, you can
present the robbery committed in Ayala although to establish
4. PREVIOUS CONDUCT AS EVIDENCE particular intent or knowledge because there is some sort of modus
operandi. Take note that the law says that although it would not be
Sec. 34. Similar acts as evidence. — Evidence that one did or did not do a used to establish the existence of the thing or a fact, it would be used
certain thing at one time is not admissible to prove that he did or did not to establish specific intent, knowledge, scheme or plan. Other
do the same or similar thing at another time; but it may be received to examples. Let’s say that my caha de jero was opened and previously
prove a specific intent or knowledge; identity, plan, system, scheme, habit, it was established that Mr. Ong was trying to open my vault.
custom or usage, and the like. (48a) Therefore it will establish some knowledge that he knows the
combination of the vault. Another example is the Rizal Day Bombing.
GR: Evidence that one did or did not do a certain thing at one time is There were items or fragment taken at the scene of the crime. In the
not admissible to prove that he did or did not do the same or a similar QC house of Mr. Ong, it was discovered that he was keeping
thing at another time. fragments or bombs of similar nature. It would show some intent on
his part. Another example is I’m uttering or using a counterfeit P200
Exceptions: It may be received to prove a specific bill. I am being charged with using a counterfeit bill. The fact that I
have been uttering that to Fornier, Aquitania or Sandoval at a
1) intent previous time may not be enough to convict me on my uttering to Ong
but those particular acts could be established to show that there is a
2) knowledge pattern as to how I intend to commit such _______. Similar acts are
3) identity used as some sort of a guide to establish intent, knowledge,
negligence, plan or scheme.
4) plan
5) system Sec. 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
6) scheme rejected without valid cause, equivalent to the actual production and
tender of the money, instrument, or property. (49a)
7) habit
8) custom or This involves personal property.
Tender – NO delay/violation
9) usage, and e.g. R67 tender of just compensation
10) the like. Consign!

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What is an accepted offer? That there is an offer in writing to pay
money or delivery of written instrument or specific thing. If the same Sec. 37. Dying declaration. — The declaration of a dying person, made
was rejected what is the effect? The effect is production or tender of under the consciousness of an impending death, may be received in any
money, property or instrument. case wherein his death is the subject of inquiry, as evidence of the cause
and surrounding circumstances of such death. (31a)
5. TESTIMONIAL KNOWLEDGE
Requisites for admissibility of a dying declaration:
Sec. 36. Testimony generally confined to personal knowledge; hearsay
excluded. — A witness can testify only to those facts which he knows of 1) Declaration of a dying person
his personal knowledge; that is, which are derived from his own 2) Made under the consciousness of an impending death
perception, except as otherwise provided in these rules. (30a) 3) Death is the subject of inquiry
4) As evidence of the cause and surrounding circumstances of
Personal knowledge is derived from witness’ perception; perceived such death [i.e. seriousness of the wound, nature of the
thru senses – he actually witnessed it within the sphere of his wound, victim’s condition (breathing, talking, cold body,
perception. numbness, movement)]

If you are to put somebody on the witness stand, note 3 requirements: e.g. cut at the throat – bloodied; cannot speak so it is impossible!
1. competent (sec. 20) (object and physical evidence)
2. perceiving and perceiving can make known
perception to another This is a question of fact and may be refuted thru cross examination.
3. personal knowledge – experienced, saw, heard, felt
the happening of event, thing or circumstance. This applies to both civil (e.g. R39 S47 (a) probate of a will/granting of
letters of administration only prima facie evidence of the death of the
Independent Relevant Statement – in an sense, an admission; testator/intestate) and criminal cases.
personal knowledge
Both declarant and recipient must be competent to testify. If declarant
6. EXCEPTIONS TO THE HEARSAY RULE does not die, recipient may testify on res gestae.

Exceptions to the hearsay rule: Recipient testifies; NOT possible if unconscious, lingering illness (i.e. 3
months to live)
1) Waiver
2) Independently relevant evidence Dying declaration – person who is the recipient of declaration will
3) Dying declaration testify. So if A is the dying man, B was the recipient of info, B
4) Declaration against interest testified. If A survives, A could testify and this would fall under res
5) Act or declaration about pedigree gestae. So if the dying person eventually survives, he can testify on
6) Family reputation or tradition regarding pedigree res gestae. Who should be competent? Both dying man and recipient
7) Common reputation must be competent. There are some who say that only dying man
8) Part of the res gestae must be competent. Let’s analyze. Dying man who knew of facts and
9) Verbal acts circumstances surrounding his death should have actually perceived
10) Entries in the course of business and knew who assaulted or killed him. So he should be able to
11) Entries in official records perceive and perceiving, could make known his perception to whom?
12) Commercial lists and the like To another. But the fact is he’s a dying man so he only related info to
13) Learned treatises B but B should also be competent to what? On the fact that he
14) Testimony or deposition at a former proceeding perceived the declaration of A and that he could make this perception
known in court. So both of them should be competent. Note also that
All such exceptions are NOT absolute; still subject to cross the declaration should be limited to the facts and circumstances
examination; only testimonies so they may NOT be credible. regarding the death of the person. Let’s say that S is in the brink of

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death. S unable to prepare his will so told Ong to “take care of his
family, take care of distribution of his property.” NOT dying 2 Kinds:
declaration. Is this limited to criminal cases for homicide, murder or a. Pertaining to fact in issue
parricide? P vs Norodin says yes but codal provision does not limit this b. Pertaining to circumstances in connection to fact in
to criminal cases. It applies to any case wherein the declarant’s death issue
is the subject of inquiry. Another thing to note is that before you
present the dying declaration, counsel should establish the Example: I talked to F and told him that I robbed a bank.
preliminary facts and circumstances. This is practically laying the Can F testify as to fact that I narrated to him my having
basis for the presentation of a dying declaration. Circumstances, robbed a bank? YES. But as to the truth or falsity of WON
time, place, situation, name of attacker. I indeed robbed a bank is a matter that has to be
established by independent evidence. But the fact of my
Note the following cases: sharing the info, the fact of my ____ declaration to F would
P vs Bartolo (Sept. 27, 2003) – reiterates the be an independent relevant statement.
requirement that had the victim survived, he would
have been competent to testify in court as there is no Dying declaration by the dying man himself… let us say that he can
evidence to the contrary. no longer speak, but he wrote something. Do you need to present the
original? Yes, because the contents of which are the subject of the
P vs. Norodin – a dying declaration made in inquiry. However, if, let us say I am the dying man and Mr. Ong was
the form of answers to questions proved by the taking a memorandum of my statement, based on what I am declaring
person to whom the declaration is made is admissible and narrating he was making and preparing a memorandum in which
in court and may be proved by the testimony of the case that memorandum could be used as his memory aid if he sits on
witness who heard the same or to whom it was made. the witness stand in the nature of present recollection revival.

P vs. Boller (Apr. 3, 2002) – a dying Sec. 38. Declaration against interest. — The declaration made by a person
declaration may be oral or written. In oral, the deceased, or unable to testify, against the interest of the declarant, if the
witness who heard it may testify thereto w/o the fact is asserted in the declaration was at the time it was made so far
necessity of reproducing the word of the decedent if contrary to declarant's own interest, that a reasonable man in his position
he is able to give the substance thereof. It is not would not have made the declaration unless he believed it to be true, may
important that he has to use the exact words of the be received in evidence against himself or his successors in interest and
decedent. It is enough that the substance thereof was against third persons. (32a)
given.
Requirements for hearsay testimony on declaration against interest:
An unsigned dying declaration may be used as
1) Declaration made by a person deceased, or unable to testify
a memorandum by the witness who took it down. (in
relation to R 132) 2) Against the interest of the declarant (contrary/prejudicial)

Does it mean that a person would have to use 3) Fact asserted in the declaration was at the time it was made
words to the effect that he knew he was dying? (eg. “I so far contrary to declarant's own interest, that a reasonable
know that I’m dying” or “Mamamatay na ako”) NO! man in his position would not have made the declaration
Circumstances that will lead to such conclusion that unless he believed it to be true
he is dying would be enough and the declaration 4) As evidence against himself or his successors in interest and
made in connection thereto will or can be used as a against third persons
dying declaration.
cf Rule 130 Sec. 31

Independent Relevant Statement – NOT fall under exception but still Sec. 31. Admission by privies. – Where one derives title
allowed if presented in court. to property from another, the act, declaration, or

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omission of the latter, while holding the title, in relation declaration against interest the person is dead or unable to testify and
to the property, is evidence against the former. (211) it is admissible in its entirety; including the points not against interest.
Anything that was stated that is in connection with the declaration
Admission by privies Declaration against interest against interest is likewise admissible.
One of 3 exceptions to res inter Exception to hearsay
alios acta Note 3 things on declaration against interest:
Evidence against the successor Evidence against even the  Declarant is dead or unable to testify
in interest of the admitter declarant, his successor in
 Declaration must on a fact cognizable by the declarant
interest, or 3rd persons
 No motive to falsify.
Admitter need not be dead or Declarant is dead or unable to
unable to testify testify
If it is established later on that there is a motive to falsify, the
Relates to title to property Relates to any interest
declaration against interest cannot be admitted.
Admission need not be against Declaration must be against the
the admitter’s interest interest of the declarant These exceptions to the hearsay rule are not absolute and they could
be contested and objected to.
Declaration against Interest. Who would testify? Another person.
NOT the person who made such declaration against interest. It is just The person being presented to narrate a declaration of a dying man or
that the person who made such declaration against interest is either to narrate the declaration of person who admitted an interest against
dead or unable to testify. So it is the RECIPIENT who would testify as himself could be subjected to cross-examination.
to such declaration.
Such cross-examination may touch on these matters:
This is against human nature; could be considered by the court.
This is secondary evidence, unlike an admission which is primary – What was your condition at the time you met the person?
because declarant is dead or unable to testify; there’s a certain Was he able to speak or could he hardly speak?
degree of reliability How did he know that he was dying?
The primary evidence is the witness who testifies. Was he surely dying at that point in time?
But if declarant is still alive, his declaration may be used to impeach
him under R132 S13. (inconsistent with his interest) Sec. 39. Act or declaration about pedigree. — The act or declaration of a
person deceased, or unable to testify, in respect to the pedigree of another
Admissions may be express or implied (judicial under R8 S11 wherein person related to him by birth or marriage, may be received in evidence
allegations NOT specifically denied are deemed admitted; or extra- where it occurred before the controversy, and the relationship between the
judicial under S32 – admission by silence) two persons is shown by evidence other than such act or declaration. The
word "pedigree" includes relationship, family genealogy, birth, marriage,
Admission vs. Declaration against Interest. An admission is not death, the dates when and the places where these fast occurred, and the
necessarily a declaration against interest but a declaration against names of the relatives. It embraces also facts of family history intimately
interest is always against one’s interest. In admission, the person who connected with pedigree. (33a)
testifies is the person making such an admission; therefore, it is a
primary evidence. In a declaration against interest, the person who Requisites for admissibility of hearsay evidence as to pedigree:
made the declaration is deceased or unable to testify; therefore,
another person or a recipient will have to testify. Admissions used 1) Act or declaration of a person deceased, or unable to testify
only against admitter and those who have legal interest arising 2) In respect to the pedigree of another person
therefrom. In declaration against interest, it could be used even as
against 3rd persons. 3) Related to him by birth or marriage
4) Where it occurred before the controversy
Self-serving declaration vs. Declaration against Interest. Self-serving
declaration is made out-of-court and is generally not admissible. To 5) Relationship between the 2 persons is shown by evidence
make it admissible is to promote perjury and fraud. While in other than such act or declaration.

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"Pedigree" includes: - relationship cannot be established by other evidence (birth
certificate, public instrument, private document)  only if no
a) relationship other superior evidence available
b) family genealogy
c) birth Note:
d) marriage
 Person is dead or unable to testify
e) death
f) dates when and the places where these facts occurred  Pedigree of another person, not the declarant, is in question
g) names of the relatives  Recipient testifies
h) facts of family history intimately connected with  Witness need not be a relative
pedigree.  Declarant should be related, by birth or marriage, to the
person whose pedigree is in issue and the relationship does
Act or declaration about pedigree; declarant is related by not need to be legitimate because the law makes no
birth/marriage to the person whose pedigree is in question distinction
 Declarant’s relationship to the family to which he claims to be
- family genealogy (family history, family tree); NOT limited to related to should be legitimate in character
oral, includes written
- NO need to establish relationship; witness is merely a Sec. 40. Family reputation or tradition regarding pedigree. — The
recipient reputation or tradition existing in a family previous to the controversy, in
respect to the pedigree of any one of its members, may be received in
e.g. Declarant relays information to Witness relating to a Person evidence if the witness testifying thereon be also a member of the family,
whose pedigree is in question either by consanguinity or affinity. Entries in family bibles or other family
books or charts, engravings on rings, family portraits and the like, may be
– involves 3 persons; D as pedigree’s source is in a sense, received as evidence of pedigree. (34a)
making an admission
Requisites for admissibility of hearsay evidence as to family
Pedigree is the history of family descent which is transmitted from a reputation or tradition regarding pedigree:
generation to another generation by oral or written declaration and by 1) Reputation or tradition existing in a family
tradition.
2) Previous to the controversy
It includes: relationship, family, genealogy, birth, marriage, death and
3) In respect to the pedigree of any one of its members
dates and places where these facts occurred.
4) Witness testifying thereon be also a member of the family,
Witness should be competent on his own to testify on the relationship. either by consanguinity or affinity

The declarant’s relationship to his family must be legitimate, and NOT Reputation is others’ perception of who you are, which may be
is relationship to X (person whose pedigree is in question). inaccurate.

It is declarant’s claimed family which should be genuine because It is reliable in family reputation; passed on from generation to
otherwise, the relationship would be questionable/spurious. generation.
- oral transmission of information; NO need to identify the
But what is to be established need NOT be genuine (declarant’s source; family history is created
relationship with X). - why not include non-family members? Filipinos are clannish;
there is a certain level of indifference
This should be before controversy, otherwise, it may not be reliable as
there may be reason to falsify. Witness who is a family member testifies so it is reliable. (i.e.
tradition: reunions, confirmation); prior to the controversy (NO

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reason/motive to falsify); spontaneous declaration (i.e. reputation: Chances are I might not be telling the truth; there’s room to
blacksheep, playboy, breadwinner) fabricate.)
- NO declarant; witness received (passed on from one
generation to another) Sec. 41. Common reputation. — Common reputation existing previous to
the controversy, respecting facts of public or general interest more than
Family pictures thirty years old, or respecting marriage or moral character, may be given
Family Bibles – common in Royalties who have family historians; far in evidence. Monuments and inscriptions in public places may be received
back to see the line and becomes relevant in cases of succession to as evidence of common reputation. (35)
the throne; not so much in the Philippines; only family members are
placed in the bible but now, this is no longer true; now unreliable Requisites for admissibility of hearsay evidence as to Common
reputation:
Entries in family bibles or other family books or charts, engravings on
1) Common reputation
rings, family portraits and the like, may be received as evidence of
pedigree. 2) Existing previous to the controversy

In family tradition, the declarant must be dead or unable to testify. In 3) Respecting either
family reputation or tradition, there is not even a declarant to speak a. facts of public or general interest more than 30 years
of, just a witness who was aware of an exiting family reputation or old, or
tradition.
b. marriage or
Family reputation or tradition regarding pedigree. Do we have here a c. moral character
recipient of a declaration or an act? NO. What is reputation? It is
how other people perceive us to be. It is how the community Monuments and inscriptions in public places may be received as
perceives us to be. Reputation, as defined, is declaration and evidence of common reputation.
statements passed down from generation to generation coming from
deceased relatives though it cannot be identified as to who they tell; 1945 Philippine history as to independence is subject to judicial notice
and this could be regarded as family history. What is the reason for and NOT common reputation
this? Necessity and trustworthiness. e.g.
 Student activities went to the mountains because they were
Reputation is only as against one’s ancestors who only we know disgruntled, but 1st Quarter Storm is history!
because of declarations and statements that has been passed on from  Farmers joined Hukbalahap
generation to generation. Examples: “yung lolo ko gobernador
 Fact: Josons of Nueva Ecija (lolo was a guerilla)
heneral ‘yan dito”, “’yung lolo ko provincial auditor ‘yon.” That is
family reputation or tradition regarding pedigree.  Culture of the Tausugs (cooking, weapons, weaving, dress)

Note: Legal marriage NOT required; only a perception


- NO requirement of 30 years; only for purposes of testimony
 There should be a controversy with respect to the pedigree of
a member of the family so what is in issue here is the - NOT conclusive; NOT including 5 years under the Family Code
pedigree of a member of the family. as to the absence of legal impediment to marry  NO need to
 A member of the same family testifies because only members have a marriage license
of the same family would know the acts or declarations of - NO declarant
their ancestors although they cannot really pinpoint as to who
among their ancestors made such acts or declaration. Moral character – social norms; NOT accurate
 Reputation or tradition of the person concerned existed before
the controversy so there’s no room to fabricate, no bias and Character – person himself; reliable because it is difficult to obtain
interest (i.e. If I’m mad at O, there’s already bias and interest. evidence; NO document; trustworthy because the public is presumed
to be conversant

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o Spontaneous information equivocal act material to the issue, and giving it a legal significance, may
o From class of persons within that circle be received as part of the res gestae. (36a)

Note: Requisites for admissibility of hearsay evidence as to res gestae


 Facts must be of public or general interest for 1) Statements made by a person either
more than 30 years
 Common reputation must be ancient a. While a startling occurrence is taking place or
 Reputation has been formed among persons b. Immediately prior or
who have some sort of information and could intelligently
make an opinion of such information c. Immediately subsequent thereto
 Common reputation exists previous to the 2) With respect to the circumstances thereof
controversy – the law understands that there’s room to
fabricate so common reputation should have existed prior to Requisites for admissibility of hearsay evidence as to verbal acts:
the controversy.
1) Statements accompanying an equivocal act
Common Reputation. What are those which will fall under common
reputation? Public or general interest for more than 30 years. 2) Material to the issue
Documents existing for more than 30 years which have been
3) Giving it a legal significance
unblemished by alterations and beyond suspicion and is in possession
of the person who should be in custody of the same are called ancient
documents. Facts, common knowledge of more than 30 years fall 2 Kinds of Res Gestae:
under common reputation. It will also include marriage and related
facts and individual moral character. a. Statements made from a startling occurrence while it is
taking place, immediately prior or subsequent thereto –
The reason for this is that it is very difficult to obtain evidence. What reason: spontaneous, no room to falsify/fabricate. If there’s
is the trustworthiness of this evidence? Most of the time, the public is already a gap, a space for you to think, consider or elaborate
conversant of what the true facts are. Note that if it’s fact of public or certain facts, then there’s room to fabricate. Example: I
common knowledge, the law requires more than 30 years so that it throw this is the middle of the room. S shouted _______.
will have a certain level of reliability. Otherwise, it’s famous as That’s an immediate and spontaneous reaction. Who will
“rumor,” “chismis,” “haka-haka.” But because it has been existing for testify? Is it O who saw me throw this in the middle of the
more than 30 years, it has reached a certain level of reliability. room? If O testifies, he’ll testify on his personal knowledge
NOT res gestae. Because what is to be testified on here is the
In these cases, persons who made declaration is identifiable: statement which was initiated or generated by that startling
occurrence. Who will testify then? If I threw this away, S
1) Dying declaration with declarant reacted. Let’s say A was not looking at me and she heard
2) Declaration against interest with declarant ________, will she testify on the immediate reaction of S? YES.
3) Pedigree with declarant That’s res gestae. It is not that S and O saw me threw the
4) Family Reputation with NO declarant chair. It is the statement which was the reaction to that
5) Common Reputation with NO declarant startling occurrence.
6) Res gestae with declarant
b. Verbal acts – What is the evidence here? It is the
Sec. 42. Part of res gestae. — Statements made by a person while a statements accompanying an equivocal act. If you see me
starting occurrence is taking place or immediately prior or subsequent with this hand, I could give as many meanings and
thereto with respect to the circumstances thereof, may be given in interpretation. That’s why it’s equivocal; it’s not clear. If it’s
evidence as part of res gestae. So, also, statements accompanying an unequivocal, it does not fall under this. What amplified the
equivocal act? The statement amplifies or gives significance

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to the equivocal act. W/o the statement, this equivocal act is o While taking place
useless. It is the statement that gives significance to the o Immediately prior
equivocal act that has to be submitted in court. Let’s say you o Subsequent (lapse of time depends on the
see me building a fence around my house. This will give you a circumstances)
number of meanings: that I am a tenant or owner or  You do NOT testify on the occurrence but on statements
legitimate successor. That is an equivocal act of me building heard
a fence. But if it’s accompanied by a statement: “I’m building  X – startling occurrence; Y – witness (personal knowledge);
this fence because I purchased this from F.” Is that clear? Z – X relayed it to him when X arrived home (res gestae)
YES. The equivocal act is coupled with a statement.  Independent Relevant Evidence need arise from a startling
occurrence
If O heard you say that you’re building a fence, isn’t that a
 Witness testifies on the statement which is NOT confined
matter of personal knowledge of O? It is but it falls under res gestae.
to those made by X, the person who experienced the
It’s also possible that A saw me build the fence and O heard me say
startling occurrence
the reason why I built the fence. O heard a statement which amplifies
my act but as to A, it’s only an act. These matters are concerns when  Subject to judge’s discretion if cumulative evidence
you’re handling actual trial. For now, what’s important is that it is the  Spontaneous
statement which gives legal significance to the equivocal act.
2) Equivocal act
The 1st kind of res gestae refers to spontaneity while the 2nd kind  Given legal significance by statements which are testified
refers to contemporaneous statements with the act. on
 e.g. clenched fist
Res gestae is NOT sufficient to convict; only in support; reliable  Person who sees act and does not hear testifies (personal
because NO time to concoct and NO opportunity to fabricate knowledge)
 If he did not see, but heard (res gestae)
1) Person who heard the statement which is the result of  If sees and hears (personal knowledge)
startling occurrence testifies  testified on by another
individual; statement need not be so close to the event; NO Scenarios:
hard and fast rule in terms of time; a question of fact (how he a) X and Y only – Y heard
narrated: before, during or after) b) X killed, Y saw killing, Z “naku patay!”
 Y has personal knowledge; if Y did not see,
res gestae
2) Spontaneous statements contemporaneous with an equivocal
act  statement is material to the issue, a relevant matter; it Sec. 43. Entries in the course of business. — Entries made at, or near the
is the act which gives it legal significance time of transactions to which they refer, by a person deceased, or unable
to testify, who was in a position to know the facts therein stated, may be
e.g. symbolic act of thumbs down made by A and B heard A’s received as prima facie evidence, if such person made the entries in his
statement while C saw such act but did not hear the professional capacity or in the performance of duty and in the ordinary or
statement regular course of business or duty. (37a)
 B can testify on personal knowledge as to what he
heard; C can testify on res gestae as to the equivocal act Requisites for admissibility of hearsay evidence as to Entries in the
 B’s testimony amplifies course of business:
 act is testified on by another individual
1) Entries made at, or near the time of the transactions to which
Res Gestae: Types they refer
2) By a person deceased, or unable to testify
1) Startling occurrence
 Triggers the statements made as a reaction 3) Who was in a position to know the facts therein stated

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4) If such person made the entries in his professional capacity or
in the performance of duty and in the ordinary or regular Requisites for admissibility of hearsay evidence as to Entries in official
course of business or duty records:
Note that in business records, the person making the entry must be 1) Made in the performance of his duty
deceased or unable to testify. In official records, the person making
2) By either
the entry need not be deceased or unable to testify (Rule 130, Sec.
44). Both official and business records are only prima facie evidence. a. a public officer of the Philippines, or

If the person making the entry is still alive, use the record to refresh b. by a person in the performance of a duty specially
his memory. (Rule 132, Sec. 16) enjoined by law
 Certified true copy suffices
We first heard of this in best evidence. Because these are made at or
 Another person who did not prepare the
near the time of transaction, the entries, the data, the presumption is
document testifies
there’s no room to fabricate because these were made at the regular
 But public officer may be ordered to testify
course of business. But could it be refuted? Could it be established
upon order of court
that it is not accurate? YES. That’s why those who falsify entries
appearing in these documents would normally falsify/tamper/alter as
Note that in official records, the person making the entry need not be
they follow the regular course of business because there’s such
deceased or unable to testify, but he must be a public officer or a
presumption.
person in the performance of a duty specially enjoined by law. In
business records, the person making the entry must be deceased or
The entrant must have been in the position to know the facts. Is the
unable to testify. Both official and business records are only prima
person who made such entries available to testify? NO. The entrant
facie evidence.
must either be dead or unable to testify. Who will testify then?
Another person who has knowledge of how the entries were made
The entries must be made in professional capacity or in the
NOT the person who made entries.
performance of a duty. If those are financial entries, I must be an
accountant or I may not be an accountant but because of a duty
Entries:
mandated upon my by my employer, I have to make an entry in the
 In issue; made “at/near the time of the transaction” so regular course of business, then it will fall under this exception.
reliable; R130 S4 (original: documentary)  NO question as to
who made the entry; the document cannot speak for itself; There are two types here:
must be relevant, not excluded and authenticated
 Prima facie evidence: made the entries in his professional 1) Entries made by public officer in the performance of his duty
capacity or in the performance of duty and in the ordinary or
regular course of business 2) Entries made by a public officer in the performance of his duty
 Hearsay because the person in a position to know is deceased as enjoined by law
or unable to testify
 Reason: necessity and trustworthiness Note:
 Who testifies? Competent witness who may be the supervisor  Made by a public officer or a person enjoined by law
or his subordinate  In the performance of his duty or a duty enjoined by law
 Still needs authentication R130 S19 (classes of documents)  Public officer or the person enjoined by law has sufficient
knowledge of the facts acquired by him personally or through
Sec. 44. Entries in official records. — Entries in official records made in his official information
the performance of his duty by a public officer of the Philippines, or by a
person in the performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated. (38)

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When did we first hear this? Also in best evidence wherein you could list of lawyers or the lex mundi
submit a certified true copy of private documents in the custody of a listing of firms or organization
public officer or a public office
Thus, the use and reliance of the compilation is important and that
Sec. 45. Commercial lists and the like. — Evidence of statements of which makes it an exception on the hearsay rule.
matters of interest to persons engaged in an occupation contained in a
list, register, periodical, or other published compilation is admissible as Why? Its really hearsay, you don’t know who prepared it and how
tending to prove the truth of any relevant matter so stated if that they collated the matter of information. It is only because it is used
compilation is published for use by persons engaged in that occupation by persons engaged in that occupation and relied upon that is why it
and is generally used and relied upon by them therein. (39) falls under the exception.

Requisites for admissibility of hearsay evidence as to Commercial lists  Witness did not prepare
1) Statements of matters of interest  Used and relied upon by persons in such occupation
 Member of the occupation testifies
2) To persons engaged in an occupation
3) Contained in a list, register, periodical, or other published DECLARATIONS:
compilation  Dying declaration
 Declaration against interest
4) As tending to prove the truth of any relevant matter so stated  Pedigree
5) Compilation is  Res gestae

a. Published for use by persons engaged in that REPUTATIONS:


occupation and  Family Reputation
b. Generally used and relied upon by them therein  Common Reputation

e.g. NEDA reports, part of the newspaper which reports the prices of ENTRIES:
shares  Regular course of business
 Entries of pubic officer
In commercial lists, there are persons who are engaged in an
occupation and that there is a list, register or other published
Sec. 46. Learned treatises. — A published treatise, periodical or pamphlet
compilation.
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,
What does the published compilation tend to establish? Truth as to a or a witness expert in the subject testifies, that the writer of the statement
relevant matter stated in the publication. in the treatise, periodical or pamphlet is recognized in his profession or
calling as expert in the subject. (40a)
What we want to prove is the fact or the matter stated in that
publication or the list and for that compilation or publication to be Requisites for admissibility of hearsay evidence as to Learned
reliable, there are two important requirements: usage and reliance. treatises (used to prove unwritten foreign law)
If it is used but not generally relied upon by the persons engaged in 1) Published treatise, periodical or pamphlet
that occupation then it is useless.
2) On a subject of history, law, science or art
It must be a compilation which has attained certain level of reliability. 3) Either

e.g. a. court takes judicial notice, or


b. witness expert in the subject testifies

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4) Writer of the statement in the treatise, periodical or pamphlet (a) The written official acts, or records of the official
is recognized in his profession or calling as expert in the acts of the sovereign authority, official bodies and
subject tribunals, and public officers, whether of the
Philippines, or of a foreign country;
What are treaties? These are dissertations, papers or scholarly
articles… prepared by persons in the field of history, law, science and xxx
the arts [limited fields].
E.g. of written official acts: Judicial decisions, executive orders. Our
courts take judicial notice of local laws. However, there are certain
Again, this is hearsay! Why? There is a person who prepared the
instances when an official copy of the written official act is required to
material… the person will appear in court… (no, he will never appear
be presented. cf Rule 132, Sec. 24
in court) …so what will be presented to prove a matter appearing on
the treaties would be….. what are the modes by which you establish
Sec. 24. Proof of official record. – The record of public
the fact appearing on the treaties:
documents referred to in paragraph (a) of Section 19,
when admissible for any purpose, may be evidenced
1. By judicial notice – you don’t really need to do anything… if it
by an official publication thereof or by a copy attested
is mandatory of course, the judge will take mandatory judicial
by the officer having the legal custody of the record, or
notice. If it is discretionary, it would depend upon his
by his deputy, and accompanied, if the record is not
discretion. But if its other matters, which you want the court
kept in the Philippines, with a certificate that such
to take judicial notice of, you have to call the court’s attention
officer has the custody. If the office in which the record
after notice and hearing of such matter.
is kept is in a foreign country, the certificate may be
made by a secretary of the embassy or legation, consul
2. There should be an expert in the same subject. Will he testify
general, consul, vice consul, or consular agent or by
on the contents of the treaty? No. he will testify as to the
any officer in the foreign service of the Philippines
expertise of the person who prepared the material. All he
stationed in the foreign country in which the record is
needs to establish is that the person is an expert. Once it is
kept, and authenticated by the seal of his office. (25 a)
established, the matter stated in the treaties will be
admissible. Is it by ordinary witness? No. by an expert. If you
Ways to prove written foreign official acts
cannot make it by judicial notice, make it by an expert.
1) official publication, or
This provision is useful to prove an unwritten law. E.g. learned 2) copy
treatises on unwritten law which the court has taken judicial notice:
Manresa, Sanchez-Roman. e.g. of writers of treatises acknowledged as a. attested by the officer having the legal custody of the
experts: Corpus juris, Corpus juris secundum, LRA record, or by his deputy, and
b. if the record is not kept in the Philippines
 Courts can take judicial notice of treatise of lawyers because
these are secondary sources i. accompanied with a certificate that such
 Authors would not testify and general recognition of authors officer has the custody made by
as experts makes it reliable  a secretary of the embassy or legation
 How presented? Can be sourced out (judicial notice) or an
expert in the field of the author testifies  consul general, consul, vice consul, or
consular agent or
If it is a written law that is sought to be proven, cf Rule 132, Sec. 19
 by any Philippine officer in the foreign
service stationed in the foreign
Sec. 19. Classes of documents. – For the purpose of
country in which the record is kept
their presentation in evidence, documents are either
public or private. ii. and, authenticated by the seal of his office
Public documents are:

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Sec. 47. Testimony or deposition at a former proceeding. — The testimony An expert witness is a person who has special skill, knowledge,
or deposition of a witness deceased or unable to testify, given in a former training, experience. So an expert could give an opinion on matters
case or proceeding, judicial or administrative, involving the same parties that he has special knowledge. Is it required that he is a college
and subject matter, may be given in evidence against the adverse party degree holder? Is it required that he’s schooled? What is important is
who had the opportunity to cross-examine him. (41a) that you could establish that he has special skill, knowledge,
experience and training that could qualify him as an expert.
Requisites for admissibility of hearsay evidence as to prior testimony:
What are matters that an expert could testify on?
1) Testimony or deposition
2) Of a witness deceased or unable to testify  those that he will give an opinion on matters that he has
3) Given in a former case or proceeding personal knowledge of. Ex. medico legal officer who
4) Involving the same parties and subject matter conducted an autopsy. He can give an opinion on the
5) As evidence against the adverse party fatality of the wound.
6) Adverse party had the opportunity to cross-examine him

cf with the rules on admissions (R130, S26-33) and interrogatories


 although he doesn’t have personal knowledge of the facts,
the facts are hypothetically presented to me but those
(R24)
facts have a relation on the facts in issue, meaning that
the hypothetical facts are not foreign and irrelevant. And
There are two cases. The cases involve the same fact and subject
based on the facts presented, the expert can give an
matter. But what is the most important thing that you have to take
opinion. Ex. there is a victim and the person who
note so that the testimony or deposition taken in another proceeding
conducted the autopsy is already dead. Could the autopsy
can now be used in a simple proceeding? The testimony or deposition
report be examined by another expert in order to give an
was subjected to cross-examination. What if only a portion was
opinion on whether the facts as presented to him can
subjected to a cross-examination? Only the portion that was subjected
produce a reasonable opinion based on the facts
to a cross-examination. If there was no cross examination, then it
could not be used or be admissible as against the adverse party.
GR: Experts can give opinion (with knowledge, skill, experience,
Example, a case of ejectment and a case of ownership. If there was a
training)
testimony on the case for ownership and it was subjected to cross
Exc: witnesses can testify on identity, handwriting, mental sanity and
examination, then it can be presented. But note that ejectment cases
impressions
fall on summary procedure. Unless the court calls for a clarificatory
hearing, then there is no need to present another witness.
 It is best to have bio-data marked.
 Relate with R23 S5  Qualification of an expert may be dispensed with through
stipulation of the parties and then proceed with questioning.
 Stricter under this rule because there is a need for an
opportunity to cross-examine; such right may be waived  Experts testify in either of 2 ways:
a) Within his personal knowledge
 R115 s1 (f) rights of the accused; same with S47 (subject to
cross examination)  Identify his own report or findings

7. OPINION RULE b) NOT within his personal knowledge


 Facts are presented to him and he is to make an
Sec. 48. General rule. — The opinion of witness is not admissible, except opinion or assessment (hypothetically)
as indicated in the following sections. (42)
Sec. 50. Opinion of ordinary witnesses. — The opinion of a witness for
Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter which proper basis is given, may be received in evidence regarding —
requiring special knowledge, skill, experience or training which he shown (a) The identity of a person about whom he has adequate knowledge;
to posses, may be received in evidence. (43a) (b) A handwriting with which he has sufficient familiarity; and

Page 51 of 88
(c) The mental sanity of a person with whom he is sufficiently allow him to sit to testify? No because he has not yet been
acquainted. qualified. How do you qualify an expert witness? Either the
The witness may also testify on his impressions of the emotion, behavior, court asks him some questions or the counsel who is
condition or appearance of a person. (44a) presenting him as witness will ask him some questions as to
his background. (i.e. a doctor – his degree, special training,
GR: The opinion of a witness is not admissible. etc.) Could you do away with the qualification? No but you can
stipulate on the qualifications. This is a matter of strategy on
Exceptions: Admissible opinion evidence: whether to stipulate or not. If the expert witness is so good, it
is better to stipulate.
1) Matter requiring special knowledge, skill, experience or
training which he is shown to possess, may be received in 4) Ordinary witness can testify on behaviors, conditions,
evidence. emotions, appearance Ex. is she beautiful? This is useful in
2) Identity of a person about whom he has adequate knowledge; criminal cases in order to identify the accused in order for the
3) Handwriting with which he has sufficient familiarity judge to visualize or to paint a picture for the judge because
4) Mental sanity of a person with whom he is sufficiently he has no personal knowledge of the incident.
acquainted.
5) Impressions of the
a) Emotion
 “adequate knowledge”  identity
 enough to identify, includes notice
b) Behavior
c) Condition or  First, show adequate knowledge.
d) Appearance of a person  Second, ask how did know? Was it the first time
you saw him? Is your recollection accurate?
Ordinary witnesses on matters on identity where he has adequate
knowledge can testify on the following:  “sufficient familiarity”  handwriting
 familiarity is a question of fact
1) Identity- Does it mean that I should have a relationship with  NO relationship required
the person? No. Does it mean that I see him everyday? No.  Same repetition
identity needed is one that is enough for me to identify.
 The signatures of GMA and Marcos on our
currency are NOT covered
2) Sufficient familiarity as to handwriting. Ex. I saw the person
 Statement of familiarity; Why familiar?
write and the document is the subject of the inquiry so I could
If you saw him sign, this is NOT opinion as this is
give an opinion. I am in charge with the documents because
based on personal knowledge
the person who wrote the handwriting is my boss. In these
cases, where you want to elicit testimony from ordinary
witnesses, you must lay the bases first so the witness can  “sufficiently acquainted”  mental sanity
identify the handwriting. Lay the basis of the execution of the  demeanor, behavior, gesture, moves from
document. (i.e. Where were you during that time? We were in which the court makes inference (opinion)
Rockwell. Who were you with? Mr. Ong. What did Mr. Ong do?  NO need for repetition
He signed the document. Is this the document that was  A question of fact
signed? Yes. Is this the signature of Mr. Ong? Yes.)  Sufficient enough to make an opinion
 How do you know?
3) Sufficiently acquainted with the sanity of the person. It does o Emotion
not need a relationship with the person but you need a certain
o Behavior
degree of exposure to the person to make such a conclusion
o Condition
as to his mental sanity. Do you need to qualify an expert
o Appearance
witness? Yes. Is it enough that I say, o, Mr. Saguisag, he is my
next witness. He is an expert in handwriting. Will the court

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 important in criminal cases, damage suits; common
reaction so you could give an opinion 3) Good character of an
impeached witness
8. CHARACTER EVIDENCE
When you are confronted with a question of character evidence, break
Sec. 51. Character evidence not generally admissible; exceptions: — it to civil and criminal. If it is criminal, could the accused present his
(a) In Criminal Cases: good moral character? If there is a moral trait on the offense charged.
(1) The accused may prove his good moral character which is If there is no moral trait in the offense charged, you cannot present as
pertinent to the moral trait involved in the offense charged. to his good character. Because the fact that he is a good person
(2) Unless in rebuttal, the prosecution may not prove his bad moral doesn’t mean that he cannot commit a crime. Ex of a moral trait: rape
character which is pertinent to the moral trait involved in the offense - chastity, estafa, homicide, physical injury – attitude for peacefulness
charged. and violence. Consider the moral trait of the offense charged if you
(3) The good or bad moral character of the offended party may be want to present the good moral character of the accused.
proved if it tends to establish in any reasonable degree the probability or
improbability of the offense charged. Can the prosecution present the bad character of the accused? Yes
(b) In Civil Cases: but only on rebuttal after the defense has rested its case. This is not a
Evidence of the moral character of a party in civil case is admissible only matter of right and is subject to the court’s discretion. In the same
when pertinent to the issue of character involved in the case. manner of recalling of witnesses, there is a need to justify. How about
(c) In the case provided for in Rule 132, Section 14, (46a, 47a) the victim’s good or bad character? Yes.if it would establish the
probability and improbability of the commission of the crime.
cf Rule 132, Sec. 14
If you are confronted with character evidence, there are 3 persons to
Sec. 14. Evidence of good character of witness. – take note of: accused, prosecution, victim. Then you have civil. By any
Evidence of the good character of a witness is not party if character is an issue in the case. How about the character of
admissible until such character has been impeached. the witness? That applies to both criminal and civil cases. You have to
(17) make a cross-reference with section 14 of Rule 132 where it states
that the witness cannot present his good character unless his
GR: Character evidence not generally admissible character be impeached. When character evidence is irrelevant, do
not present it if it will not present or resolve any fact in issue or any
Exceptions: circumstance arising from those facts in issue.

1) In Criminal Cases –  Robbery, Theft, Estafa: honesty (virtue)


a) Accused may prove  Murder: violence/peacefulness (virtues)
his good moral character which is pertinent to the moral  Libel: dishonesty
trait involved in the offense charged.  Rape: lust, promiscuity, sexual conduct, perversion
b) In rebuttal, the  Moral character of the accused is considered if there is
prosecution may prove the bad moral character of the a moral trait involved in the offense; used by the
accused which is pertinent to the moral trait involved in defense; prosecution only uses bad character during
the offense charged. rebuttal since good character is a new matter
c) Moral character of  Fact of being a prostitute does not indicate she cannot
the offended party may be proved if it tends to establish be raped – a settled doctrine
in any reasonable degree the probability or improbability
of the offense charged.
 e.g. under offended party: modus operandi  honesty
in claims; R128 S4: probability or improbability of a
fact in issue
2) In Civil Cases – only when
pertinent to the issue of character involved in the case

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 Civil case: there should be an issue of “character”  3) Those which are the subject of an agreed statement of facts
“any party” (so make an issue) between the parties as well as those admitted by the party in
the course of the proceedings in the same case
 Character evidence is evidence, NOT an objection
4) Facts which are the subject of judicial notice
 Criminal case: GR: accused ; Exc: prosecution 5) Facts which are legally presumed
during rebuttal to meet the new matter 6) Facts peculiarly within the knowledge of the opposite party
 “any party” – a character issue; make it an issue by
placing it in the pleading Burden of proof: never shifts; stays until the end of the case
 good character of the witnesses is inadmissible unless 1) Plaintiff
impeached 2) Defendant

RULE 131 If the evidence in a case is evenly balanced, it must be decided


against the party who has the burden of proof, for the case is then
Burden of Proof and Presumptions found in exactly the same position at the conclusion as it was at the
beginning.
SECTION 1. Burden of proof. — Burden of proof is the duty of a party
to present evidence on the facts in issue necessary to establish his claim Burden of evidence: production burden to meet the evidence; shifts;
or defense by the amount of evidence required by law. (1a, 2a) duty of producing evidence; burden of coming forward with the
evidence; happens in rebuttal
Under Rule 131, you have presumptions as distinguished from
inferences. You have inferences from conclusions arising from facts. e.g.
You have a set of facts and you establish an inference.
In presumption, there is also an inference from established facts. The Nature of case in a Burden of Proof
only difference is that there is only a presumption when it is laid down contract of loan
by law. So only those presumptions that are laid down by law are Parties Plaintiff Defendant
legitimate presumptions. CIVIL Cause of action Payment
(allegations in the
Presume – make an inference from established facts complaint)
Assume – you lay the premise first and from those assumptions, you Application: Cause of action: Defense:
make a conclusion Debt obligation Payment
Evidence presented: (1) P/N, demand (1) Payment was
Burden of proof – the duty of a party to present evidence on the facts letter made to the person
in issue necessary to establish his claim or defense by the amount of (2) Testimony of the who follows up and
evidence required by law; the burden of persuasion person who follows supported by a
up payment receipt
Test for determining burden of proof: (3) Interest is
The result of the inquiry as to which party would be successful if no stipulated
evidence at all were given, the burden on the adverse party (4) That receipt of
payment was falsified
Matters which need not be proved by a party to an action: or fabricated
 Since receipt
1) Allegations contained in the complaint or answer immaterial is a new
to the issues matter,
2) Facts which are admitted or which are not denied in the plaintiff
answer, provided they have been sufficiently alleged should be
able to meet

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this by
presenting If this is done and the accused offers no evidence, the case as made
evidence that out by the state must go to the court. In thus complying with the
such is requirement that it shall sustain the burden of proof, the state must
falsified produce such evidence as will overcome the presumption of
Parties: Accused Prosecution innocence and convince the court of the guilt of the accused beyond a
CRIMINAL Cause of accusation Defenses to free him reasonable doubt.
found in the from liability
information After the state has introduced all the proof which it regards as
(elements of the - If defense is there is sufficient to convict the accused, the accused may meet the case thus
crime) no note, present made out against him in three (3) different ways:
testimonies, or proof
R 120 that the p/n was 1) He may deny the truth of all the evidence which may be
Alleged: estafa returned and there offered against him.
Proved: other deceits was no loan. 2) He may deny the truth of some particular ingredient in the
criminal transaction as shown by the state. (i.e. he may plead
Another defense an alibi, admit the doing of the act charge and deny the
would be payment. presence of intent, or make an affirmative defense such as
insanity or license)
Homicide Prosecution Accused 3) He may put in a defense not traversing the allegations of the
Witnesses presented (1) Eyewitness (1) Accused himself indictment, but involving some matters or facts which are
(2) Fact of death (that he is not the entirely separate from and independent of the original
(doctor) assailant and that he transaction set forth therein.
(3) Police report was out of the
(police) country)  alibi Facts: in the pleading
(4) Eyewitness (2) Immigration Evidence: during trial
papers
The aggravating (3) Certification from Sec. 2. Conclusive presumptions. — The following are instances of
circumstances are abroad conclusive presumptions:
burdened on the (a) Whenever a party has, by his own declaration, act, or omission,
prosecution who shall The defense may intentionally and deliberately led to another to believe a particular thing
present testimonies, present an alibi and true, and to act upon such belief, he cannot, in any litigation arising out of
body of the crime, such declaration, act or omission, be permitted to falsify it:
tickets and
weapon, bloodied (b) The tenant is not permitted to deny the title of his landlord at the
certifications may be
shirt. time of commencement of the relation of landlord and tenant between
shown.
them. (3a)
* Rebut:
(1) Present (1) That certification
Presumption – an inference of the existence or non-existence of some
certification that of his presence here
fact which courts are required or permitted to draw from the proof of
accused was here was falsified
other facts, an inference which common sense, enlightened by human
and not abroad (2) That my
knowledge and experience, draws from the connection, relations, and
(2) Pictures certification from
coincidence of facts and circumstances, with each other
abroad is true
- an assumption of fact resulting from a rule of law which
requires such fact to be assumed from another fact or group
The burden of proof in a criminal case requires the prosecution in the of facts found or otherwise established in the action
first instance to make out a prima facie case proving the essential
facts embraced in the criminal actions alleged, including the intent.

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Presumptions juris or of law are classified into conclusive Estoppel:
presumptions, or presumptions juris et de jure and rebuttable 1) Equitable estoppel
presumptions, or presumptions juris tantum. 2) By deed
3) By record or judgment
Conclusive presumption – inference which the law makes so 4) By laches
peremptory that it will not allow them to be overturned by any 5) Promissory estoppel
contrary proof however strong 6) By silence
- absolute presumption of law - Estoppel by silence arises in a case wherein another
- rules determining the quantity of evidence requisite for the person who relied on silence is prejudiced, as
support of any particular averment, which is not permitted to distnguished from admission by silence wherein the
be overcome by any proof that the fact is otherwise burden is on the silent person and no one is
- a rule of substantive law prejudiced

Disputable presumption – a species of evidence that may be accepted Instances of conclusive presumptions:
and acted on when there is no other evidence to uphold the
contention for which it stands 1) Party has, by his own declaration, act, or omission,
- rebuttable presumption intentionally and deliberately led another to believe a
- may be overcome by other evidence particular thing true, and to act upon such belief, he cannot, in
- a rule of evidence; a species of evidence any litigation arising out of such declaration, act or omission,
be permitted to falsify it
Presumption Inference
A presumed fact is one taken for An inference is the conclusion  Equitable estoppel (reliance as true)
granted and accepted as a result drawn from the proof or  Acts, declarations  representation; omissions 
of human experience and general admission of circumstances, inaction
knowledge. which, by reason of the same  NO estoppel if other party knows
human experience and
knowledge, would naturally lead 2) Tenant is not permitted to deny the title of his landlord at the
to it. time of the commencement of the relation of landlord and
It is a rule which the law makes It is a conclusion which, by means tenant between them
upon a given state of facts. of data found upon common
experience, natural reason draws  Estoppel by deed
from which facts are proved.  At the onset, tenant affirms landlord’s title (only at the
It is a deduction directed to be It is a permissive deduction. commencement since title may be questioned during
drawn by law. the relation)
 There may be prescription (ownership is attained)
Presumption of fact – mental process by which the existence of one
fact is inferred from proof of some other fact or facts with which Conclusive presumptions are NOT absolute.
experience shows it is usually associated by succession or coexistence
 Attack facts which would lead to the presumption
Presumption of law – an inference which, in the absence of direct
 NOT absolute, but the moment the facts are settled and
evidence on the subject, the law requires to be drawn from the
presumption is established, then they become conclusive
existence of certain established facts
 Facts from which conclusive nature would arise
- an assumption made by law that a strong inference of fact is  Do NOT attack the conclusion (end result) since it cannot be
prima facie correct, and will therefore sustain the burden of overturned
evidence, until conflicting facts on the point are shown

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Conclusive presumption cannot be disputed? Yes. Once created, the estoppel does not know of the facts because if he knew
cannot be disputed. But the facts which created the presumption, you the facts, he cannot claim estoppel. He is ignorant of the
can dispute in order that the conclusive presumption will not arise. facts.
Estoppel – a bar which precludes a person from denying or asserting
 What are the kinds of estoppel which are akin to equitable
anything to the contrary of that which has, in contemplation of law,
estoppel?
been established as the truth, either by the acts of judicial or
legislative officers or by his own deed or representations, either
1) Promissory estoppel – if not for the declaration or
express or implied
promise which was relied upon by the other person as
true, you may not have acted on such promise
Kinds or Classifications of Estoppel:
2) Estoppel by silence – person relied on your omission
because you did not act, and having relied on your
1) By matter in pais – equitable estoppel; a term applied to a
omission as true, he acted on it
situation where, because of something which he has done or
3) Estoppel on the question of jurisdiction – there is
omitted to do so, a party is denied the right to plead or prove
estoppel if you failed to raise the issue of jurisdiction
an otherwise important fact
within a reasonable time
4) Estoppel by laches – failure to act on an unreasonable
 Whenever a party has, by his own declaration, act, or period of time; sleeping on one’s rights
omission, intentionally and deliberately led another to believe
a particular thing true, and to act upon such belief, he cannot,
 A party who knows or should know the truth is absolutely
in any litigation arising out of such declaration, act or
precluded, both in law and in equity, from denying or
omission, be permitted to falsify it.
asserting the contrary of any material fact which, by his own
words or conduct, affirmative or negative, intentionally or
 Elements of estoppel in pais as related to the party claiming through culpable negligence, he has induced another, who
it: was excusably ignorant of the true facts and who had a right
1. Lack of knowledge and of the means of knowledge of the to rely upon such words or conduct, to believe and act upon
truth as to the facts in question them thereby, as a consequence reasonably to be anticipated,
2. Reliance upon the conduct of the party estopped changing his position in such a way that he would suffer injury
3. Action based thereon of such character as to change his if such denial or contrary assertion were allowed.
position prejudicially
2) By deed – a bar which precludes a party to a deed and his
 Elements of estoppel in pais as related to the party estopped: privies from asserting as against the other and his privies any
1. Conduct which amounts to a false representation or right or title in derogation if the deed, or from denying the
concealment of material facts, or at least, which is truth of any material fact asserted in it
calculated to convey the impression that the facts are
otherwise than, and inconsistent with, those which the  Estoppel by deed appears from the face of the deed
party subsequently attempts to assert and does not require all of the elements of estoppel in
2. Intention, or at least expectation, that such conduct shall pais. It pertains to a contract as to an owner of a
be acted upon by the other party property and a tenant. The source of the right to
3. Knowledge, actual or constructive, of the real facts possess is the landlord so the tenant has no right to
contest the title of the landlord. It may conclude a
 Estoppel in pais or equitable estoppel. Because of an act, party without reference to the moral qualities of his
declaration or omission, you make a representation. it is an conduct.
intentional representation and because of that representation,
a person relied on that representation as true and heavily 3) By record or judgment – the preclusion to deny the truth of
relied on such representation and acted based on such matters set forth in a record, whether judicial or legislative,
representation. The most important thing: the person claiming

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and also to deny the facts adjudicated by a court of  party defrauded must have acted in accordance with
competent jurisdiction the misrepresentation. (Art. 1437 NCC)
v. One who has allowed another to assume apparent ownership
 Estoppel by record is limited to judicial and legislative of personal property for the purpose of making any transfer of
records. it, cannot, if he received the sum for which a pledge has been
constituted, set up his own title to defeat the pledge of the
Laches – unreasonable delay to seek or to enforce a right at a proper property, made by the other to a pledgee who received the
time same in good faith and for value. (Art. 1438 NCC)
Estoppel by laches – a neglect to do something which one should do
or to seek to enforce a right at a proper time Sec. 3. Disputable presumptions. — The following presumptions are
satisfactory if uncontradicted, but may be contradicted and overcome by
Elements of estoppel by laches: other evidence:

1. Conduct on the part of the defendant or of one under whom (a) That a person is innocent of crime or wrong;
he claims, giving rise to the situation of which complaint is fact: unlawful act
made and for which the complainant seeks a remedy
2. Delay in asserting the complainant’s rights, the complainant (b) That an unlawful act was done with an unlawful intent;
having had knowledge or notice of the defendant’s conduct fact: unlawful act
and having been afforded an opportunity to institute suit
3. Lack of knowledge or notice on the part of the defendant that (c) That a person intends the ordinary consequences of his voluntary act;
the complainant would assert the right on which he bases his fact: voluntary act
suit
4. Injury or prejudice to the defendant in the event relief is (d) That a person takes ordinary care of his concerns;
accorded to the complainant, or the suit is not held to be fact: performance of an act
barred
(e) That evidence willfully suppressed would be adverse if produced;
Statutory instances of estoppel: fact: suppression of evidence
i. Non-owner transferor who later acquires title passes
ownership to the transferee by operation of law (Art. 1434 (f) That money paid by one to another was due to the latter;
NCC) fact: payment
ii. Agent who alienates can not claim title against the transferee
(Art. 1435 NCC) (g) That a thing delivered by one to another belonged to the latter;
iii. Lessee or a bailee is estopped from asserting title to the thing fact: delivery
leased or received, as against the lessor or bailor. (Art. 1436
NCC) (h) That an obligation delivered up to the debtor has been paid;
fact: payment and issuance of a receipt (most recent receipt;
iv. Contract between 3rd persons concerning immovable property,
indicate coverage to be safe)
one of them is misled by a person with respect to the
ownership or real right over the real estate, the latter is
(i) That prior rents or installments had been paid when a
precluded from asserting his legal title or interest therein,
receipt for
provided all these requisites are present:
(ii) the later one is produced;
 fraudulent representation or wrongful concealment of
facts known to the party estopped; (j) That a person found in possession of a thing taken in the doing of a
 party precluded must intend that the other should act recent wrongful act is the taker and the doer of the whole act; otherwise,
upon the facts as misrepresented; that things which a person possess, or exercises acts of ownership over,
 party misled must have been unaware of the true are owned by him;
facts; and fact: possession of a thing

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(w) That after an absence of seven years, it being unknown whether or not
(k) That a person in possession of an order on himself for the payment of the absentee still lives, he is considered dead for all purposes, except for
the money, or the delivery of anything, has paid the money or delivered those of succession.
the thing accordingly; fact: absence
fact: possession of an order for payment or delivery
The absentee shall not be considered dead for the purpose of opening his
(l) That a person acting in a public office was regularly appointed or succession till after an absence of ten years. If he disappeared after the
elected to it; age of seventy-five years, an absence of five years shall be sufficient in
fact: discharge of public office order that his succession may be opened.

(m) That official duty has been regularly performed; The following shall be considered dead for all purposes including the
fact: performance of official duty division of the estate among the heirs:

(n) That a court, or judge acting as such, whether in the Philippines or (1) A person on board a vessel lost during a sea voyage, or an
elsewhere, was acting in the lawful exercise of jurisdiction; aircraft with is missing, who has not been heard of for four years
fact: exercise of judicial function since the loss of the vessel or aircraft;
- has not been “heard” of includes both communication and
(o) That all the matters within an issue raised in a case were laid before the knowledge
court and passed upon by it; and in like manner that all matters within an (2) A member of the armed forces who has taken part in armed
issue raised in a dispute submitted for arbitration were laid before the hostilities, and has been missing for four years;
arbitrators and passed upon by them; - includes a chaplain who gives moral support
fact: decision or judgment of court or arbitrators (3) A person who has been in danger of death under other
circumstances and whose existence has not been known for four
(p) That private transactions have been fair and regular; years;
fact: transaction (4) If a married person has been absent for four consecutive
years, the spouse present may contract a subsequent marriage if
(q) That the ordinary course of business has been followed; he or she has well-founded belief that the absent spouse is
fact: doing of business or acts in pursuance of the business already dead. In case of disappearance, where there is a danger of
death the circumstances hereinabove provided, an absence of
(r) That there was a sufficient consideration for a contract; only two years shall be sufficient for the purpose of contracting a
fact: contract subsequent marriage. However, in any case, before marrying
again, the spouse present must institute a summary proceedings
(s) That a negotiable instrument was given or indorsed for a as provided in the Family Code and in the rules for declaration of
sufficient consideration; presumptive death of the absentee, without prejudice to the effect
fact: indorsement/drawing of a negotiable instrument of reappearance of the absent spouse.
- law promotes lawful union, NOT illicit relationships; human
(t) That an endorsement of negotiable instrument was made before the nature: longing of the spouse for affection (who was alone)
instrument was overdue and at the place where the instrument is dated;
fact: indorsement/datng of a negotiable instrument (x) That acquiescence resulted from a belief that the thing acquiesced in
was conformable to the law or fact;
(u) That a writing is truly dated; fact: acquiescence/conformity
fact: writing/dating
(y) That things have happened according to the ordinary course of nature
(v) That a letter duly directed and mailed was received in the regular and ordinary nature habits of life;
course of the mail; fact: happening of a thing
fact: letter sent/mailed

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(z) That persons acting as copartners have entered into a contract of o 300 days is the period of gestation of a woman; full
copartnership; term: 9 months
fact: acting as co-partners o child should be born within 300 days
o “terminated” - must be legally dissolved
(aa) That a man and woman deporting themselves as husband
and wife have entered into a lawful contract of marriage; (2) A child born after one hundred eighty days following
- deportment as husband and wife; considering a number of the celebration of the subsequent marriage is considered
circumstances to have been conceived during such marriage, even
(bb) That property acquired by a man and a woman who are though it be born within the three hundred days after the
capacitated to marry each other and who live exclusively with termination of the former marriage.
each other as husband and wife without the benefit of marriage or
under void marriage, has been obtained by their joint efforts, work Marriage terminated ----- Subsequent marriage ----- 180 days
or industry. ----- child born ----- 300 days after termination of the former
- facts: marriage
1) Capacitated to marry each other
2) Lived exclusively each other as husband and wife o belongs to the subsequent marriage
without benefit of marriage or under a void marriage
3) Property has been obtained by their joint efforts, work Presumptions: only disputable
or industry 1) If born before 180, within 300 of the former marriage,
(cc) That in cases of cohabitation by a man and a woman who are it is of the former marriage
not capacitated to marry each other and who have acquired 2) If born after 180, even within 300 of the former
properly through their actual joint contribution of money, property marriage, it is of the subsequent marriage
or industry, such contributions and their corresponding shares 3) If after 300, with more reason it is of the subsequent
including joint deposits of money and evidences of credit are marriage
equal.
- facts:  Child born before 180 days after the
1) NOT capacitated to marry each other solemnization of the subsequent marriage
2) Lived exclusively each other as husband and wife
3) Property has been acquired through their actual joint
contribution of money, property or industry  If born within 180 days following the
(dd) That if the marriage is terminated and the mother contracted 2nd marriage, it is the child of the 2nd husband.
another marriage within three hundred days after such  This presumption can be overthrown
termination of the former marriage, these rules shall govern in the only when the husband presumed to be the father, or
absence of proof to the contrary: his heirs in proper cases, brings an action to impugn
the legitimacy of the child.
(1) A child born before one hundred eighty days after the  The child himself cannot choose his
solemnization of the subsequent marriage is considered own filiation. If the husband presumed to be the father
to have been conceived during such marriage, even does not impugn, the status of the child is fixed, and
though it be born within the three hundred days after the the child cannot choose to be the child of the other
termination of the former marriage. husband.

Marriage terminated ----- 300 days ----- child born ----- 180  Child born after 180 days following the
days after subsequent marriage celebration of the second marriage

o if NO subsequent marriage, NO presumption (R131


S4)
 If the child is born after 180 days following the
o belongs to the subsequent marriage celebration of the 2nd marriage, it is the child of the 2nd
husband.

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 This presumption may be overthrown by: - could be refuted; only applicable if NO facts to rely on (e.g.
1) Proving physical impossibility of access by the that there are witnesses); disputable presumptions are only
husband to the wife during the period of good if NOT rebutted
conception of the child - if both 35 and male, consider factors such as lifestyle and
2) Showing that the wife, upon the death of the health
1st husband, or upon annulment of her 1. If both were under the age of fifteen years, the older is
marriage, gave notice of pregnancy as deemed to have survived;
required under Article 260, because such 2. If both were above the age sixty, the younger is
deemed to have survived;
notice shall be deemed to be true
3. If one is under fifteen and the other above sixty, the
3) Proving that the 1st husband has left some former is deemed to have survived;
document expressly acknowledging the 4. If both be over fifteen and under sixty, and the sex be
pregnancy of the wife at the time of his death different, the male is deemed to have survived, if the sex
4) Utilizing blood test exclusions, to show that be the same, the older;
the child and the 2nd husband belong to 5. If one be under fifteen or over sixty, and the other
different blood groups between those ages, the latter is deemed to have
survived.
(ee) That a thing once proved to exist continues as long as is (kk) That if there is a doubt, as between two or more persons who
usual with things of the nature; are called to succeed each other, as to which of them died first,
- a thing of a similar nature exists whoever alleges the death of one prior to the other, shall prove
(ff) That the law has been obeyed; the same; in the absence of proof, they shall be considered to
- law have died at the same time. (5a)
(gg) That a printed or published book, purporting to be printed or - applicable to succession
published by public authority, was so printed or published; e.g. A married to B with C as their child, and D as the child of
- publication purportedly published by a public authority C
(hh) That a printed or published book, purporting to contain
reports of cases adjudged in tribunals of the country where the A and C died in a plane crash.
book is published, contains correct reports of such cases; If C dies first, A cannot inherit.  Love descends; there is D.
- printed/published book containing reports of cases If A dies first, C can inherit.  D can inherit by representation
(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 Miscellaneous Presumptions:
when such presumption is necessary to perfect the title of such
person or his successor in interest; a) Love of life and avoidance of danger
- trustee with duty to convey to perfect title b) Suicide
(jj) That except for purposes of succession, when two persons c) Virility of men
perish in the same calamity, such as wreck, battle, or d) Capacity of women for childbearing
conflagration, and it is not shown who died first, and there are no e) Flight
particular circumstances from which it can be inferred, the f) Attempts to escape
survivorship is determined from the probabilities resulting from g) Concealing the body of the victim
the strength and the age of the sexes, according to the following h) Surrendering to authorities or resisting arrest
rules: i) Confusion, embarrassment, etc.
- NOT applicable to succession; only to other purposes than j) Demeanor subsequent to the crime
succession; e.g. insurance claim (if beneficiary dies first, k) Falsehood by accused or suspected persons
claims redound to his heirs), condition that property is l) Constitutionality
conveyed if X survives, criminal case with civil aspect, but if m) Waiver of constitutional rights
with self-defense, NOT necessary, NOT applicable n) Voluntariness
o) Res ipsa loquitor

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p) Foreign law same as law of forum (processual presumption) - Purpose: to affect his conscience and thus compel him to
speak the truth, and also to lay him open to punishment for
Sec. 4. No presumption of legitimacy or illegitimacy. — There is no false testimony in case he willfully testifies
presumption of legitimacy of a child born after three hundred days - Form: immaterial, provided it is a form which in the witness’
following the dissolution of the marriage or the separation of the spouses. belief invokes the fear of supernatural punishment (In this
Whoever alleges the legitimacy or illegitimacy of such child must prove jurisdiction, the wording of the oath is: “Do you swear to tell
his allegation. (6) the truth, the whole truth, and nothing but the truth? So help
- child born after 300 days you God.”

RULE 132 Affirmation – a solemn and formal declaration or assertion that the
witness will tell the truth, etc., this being substituted for an oath in
PRESENTATION OF EVIDENCE certain cases
- a solemn declaration without oath
A. EXAMINATION OF WITNESSES - does NOT implore the guidance of a supreme being; one
affirms being a man of integrity
SECTION 1. Examination to be done in open court. — The - if untrue, one may be held liable for false testimony under the
examination of witnesses presented in a trial or hearing shall be done in RPC
open court, and under oath or affirmation. Unless the witness is
incapacitated to speak, or the questions calls for a different mode of  The right to have a witness sworn may be waived either
answer, the answers of the witness shall be given orally. (1a) expressly or by going forward in the matter without inquiry or
objection.
Examination of witnesses presented in a trial or hearing:
 The court may commit for contempt a witness who refuses to
1) Done in open court be sworn or to affirm.
2) Under oath or affirmation
3) Answers of the witness shall be given orally, unless
 Recalled witness need not be sworn again.
a. Witness is incapacitated to speak, or
b. Question calls for a different mode of answer
Perjury – preparation of a document under oath; applies to both oath
and affirmation
Witness – one who testifies in a cause or gives evidence before a
judicial tribunal
 Testimony is made orally; if witness cannot speak, an
Open court – a court formally opened and engaged in the transaction interpreter for the sign language may be availed of.
of judicial affairs, to which all persons conduct themselves in an (testimony is recorded after the sign is verbalized)
orderly manner are admitted
Blind
Oath – an appeal by a person to God (Supreme Being) to witness the
truth of what he declares and an impreciation of Divine punishment or Blind and Deaf – Braille; write; signals
vengeance upon him if what he says is false
- in its broadest sense, includes any form of attestation by Japanese, Korean, Russian – person proficient in the language; pool of
which a party signifies that he is bound in conscience to interpreters or referrals from the embassy; judge would not normally
perform an act faithfully and truthfully rely on an outsider
- an outward pledge given by the person taking it that his
attestation or promise is made under an immediate sense of  Generally, the testimony should not be given in a narrative
responsibility to God form. The danger is that irrelevant and other improper
evidence may be interjected and a motion to strike out may
become necessary.

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(3) Not to be examined except only as to matters pertinent to the
 The testimony of a witness may be given in a continuous issue;
uninterrupted narrative: (4) Not to give an answer which will tend to subject him to a penalty
for an offense unless otherwise provided by law; or
1) Where a party witness is his own counsel (5) Not to give an answer which will tend to degrade his reputation,
2) When allowed by the trial court in the exercise of its unless it to be the very fact at issue or to a fact from which the fact in
discretion, as in the case of a witness allowed to issue would be presumed. But a witness must answer to the fact of his
describe a transaction from the beginning once his previous final conviction for an offense. (3a, 19a)
attention has been drawn to the time and place of the
scene of action The object of all examination of witnesses is to elicit facts to show the
truth.
Sec.2. Proceedings to be recorded. — The entire proceedings of a trial or
hearing, including the questions propounded to a witness and his answers Obligation of a witness – answer questions, although his answer may
thereto, the statements made by the judge or any of the parties, counsel, tend to establish a claim against him
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 Rights of a witness:
the court.
A transcript of the record of the proceedings made by the official 1) To be protected from irrelevant, improper, or insulting
stenographer, stenotypist or recorder and certified as correct by him shall questions, and from harsh or insulting demeanor;
be deemed prima facie a correct statement of such proceedings. (2a)  Irrelevant (fact in issue), improper (not material),
insulting (e.g. “Now you’re telling me you read the
Requisites for transcript to be deemed prima facie a correct statement communication. Can you really read? Any formal
of the proceedings: schooling?”; even degrading)

1) Made by the official stenographer, stenotypist or recorder 2) Not to be detained longer than the interests of justice require;
2) Certified as correct by him  Holding the witness under the court’s control for him
to testify
Records – law makes no qualification; discretionary
3) Not to be examined except only as to matters pertinent to the
Stories, jokes and comments of the judge are recorded but not issue;
transcribed.  Irrelevant
 in practice, only those with reference to the case are recorded; the
“meat” 4) Not to give an answer which will tend to subject him to a
penalty for an offense, unless otherwise provided by law; or
“Recorded”  TSN; the tape recorder is only a back-up  “offense” – pertains to self-incrimination which right is
available only if it gives rise to a civil case, and not a
 Clerks know the attitude of the judge. criminal case
 The privilege against self-incrimination must be
 Ideally, record the “meat” of the proceedings. invoked at the proper time, and the power to invoke it
is when a question calling for an incriminating answer
Sec. 3. Rights and obligations of a witness. — A witness must answer is propounded.
questions, although his answer may tend to establish a claim against him.  Question need not be actually incriminating. It is
However, it is the right of a witness: enough if the question has a tendency to incriminate.
(1) To be protected from irrelevant, improper, or insulting questions,  The privilege is not limited to facts constituting an
and from harsh or insulting demeanor; element of a crime. It extends to any fact which tends
(2) Not to be detained longer than the interests of justice require;

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to establish a criminal offense. The privilege extends Sec. 4. Order in the examination of an individual witness. — The order in
to inculpatory documents. which the individual witness may be examined is as follows;
 It may be invoked in all kinds of proceeding where (a) Direct examination by the proponent;
testimony is to be taken, including investigation by (b) Cross-examination by the opponent;
legislative bodies. (c) Re-direct examination by the proponent;
 Since it is a personal right to be exercised by him (d) Re-cross-examination by the opponent. (4)
alone, the privilege may be waived by a witness and,
when waived by him, cannot thereafter be asserted. Sec. 5. Direct examination. — Direct examination is the examination-in-
 If the witness discloses part of a transaction in which chief of a witness by the party presenting him on the facts relevant to the
he was criminally concerned, he cannot hold back the issue. (5a)
rest. He must tell the whole.
Direct examination – the examination-in-chief or initial examination of
5) Not to give an answer which will tend to degrade his a witness by the party presenting him on the facts relevant to the
reputation, unless it be to the fact issue
a. At issue or
b. From which the fact in issue would be presumed  Only 1 requisite of the cause of action/element of the crime is
c. Of his previous final conviction for an offense. enough (e.g. medical officer on direct examination to establish
 Generally, not allowed the fact of death)
 3 Exceptions: when degrading questions are  Indicate purpose for which the witness is presented
allowed  Facts relevant to the issue are facts from the existence of
which inference as to the truth or existence of the right or
e.g. liability to be ascertained may logically be drawn.
rape case – Is she a prostitute? (character evidence of offended party)  To determine the relevancy of evidence, the pleadings of the
parties must first be looked to for the purpose of ascertaining
annulment of marriage on the ground of impotence (to give a the issue.
“window” and to prevent adultery)  The direct examination should build up the theory of the case
- sex is a biological need; part of marriage and nothing more.
- since woman’s need is not satisfied, and not because of an
illness Sec. 6. Cross-examination; its purpose and extent. — Upon the
- women aged 30-45 are sexually active termination of the direct examination, the witness may be cross-examined
by the adverse party as to many matters stated in the direct examination,
case for serious physical injuries where the penis was castrated or connected therewith, with sufficient fullness and freedom to test his
- questions on feeling, reaction, consequence of castration are accuracy and truthfulness and freedom from interest or bias, or the
allowed reverse, and to elicit all important facts bearing upon the issue. (8a)

STD – question asked to a woman, not degrading to a man Cross-examination – examination of a witness by the party opposed to
the party who called such witness, the latter party having examined,
AIDS – question relating to blood transfusion and various sexual or having been entitled to examine, such witness in chief
partners are allowed
 Evidence elicited on cross-examination is regarded as
e.g. fact in issue may be presumed testimony on the part of the party calling the witness, and not
as evidence of the party cross-examining.
Witness saw from the window the commission of the crime
- but witness’ legs are amputated and the window is even Witness may be cross-examined by the adverse party:
higher that the witness himself
1) As to any matters stated in the direct examination, or
connected therewith

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2) With sufficient fullness and freedom to contradiction or inconsistency in his statements, an
a. Test his opportunity which is not ordinarily afforded to him
 accuracy and during his cross-examination.
 truthfulness and
 freedom from interest or bias, or the reverse  On re-examination, the witness may be allowed to
b. Elicit all important facts bearing upon the issue reaffirm or explain his statements, their meaning or
import, and to minimize or destroy discrediting
Dual function of cross examination: tendencies.

1) To impeach (test accuracy, truthfulness and freedom from e.g. at direct: witness answered that he was at the scene of the crime
interest or bias or the reverse) at re-direct: witness explains that he was there to buy something
2) To elicit all important facts bearing upon the issue
Sec. 8. Re-cross-examination. — Upon the conclusion of the re-direct
 opportunity to get information; dangerous; why? surprise; more or examination, the adverse party may re-cross-examine the witness on
less, the counsel know the answers to the questions matters stated in his re-direct examination, and also on such other matters
 difficult if the witness describes because there is a tendency to as may be allowed by the court in its discretion. (13)
narrate (favorable to the witness)
Re-cross-examination:
 what is important is that there is an opportunity to cross; may be
waived or forfeited; R115 (F) and R130 S47
1) On matters stated in his re-direct examination, and
2) With leave of court, other matters in the court’s discretion
Scope of cross examination: Matters
Sec. 9. Recalling witness. — After the examination of a witness by both
1) Stated in the direct examination – how autopsy conducted
sides has been concluded, the witness cannot be recalled without leave of
2) Connected therewith – Based on your experience, how many
the court. The court will grant or withhold leave in its discretion, as the
hours will a person with a stab wound on his chest survive?
interests of justice may require. (14)
(there is a relation)
 A witness can be recalled only with leave of the court.
Sec. 7. Re-direct examination; its purpose and extent. — After the cross-
examination of the witness has been concluded, he may be re-examined
by the party calling him, to explain or supplement his answers given  The matter of recalling rests in the court’s discretion and is
during the cross-examination. On re-direct-examination, questions on available to both sides.
matters not dealt with during the cross-examination, may be allowed by
the court in its discretion. (12)  A party who has examined a witness is not entitled as a
matter of right to recall him; or may a party reserve the right
Re-direct examination: to recall a witness for re-examination, without the consent of
the opposing party.
1) To explain or supplement his answers given during the cross-
examination  Permission to recall a witness should be sought by special
2) With leave of court, on matters not dealt with during the application. The court has no power to compel either party to
cross-examination in the court’s discretion recall his witness against his will.

 The main object of re-examination is to prevent Sec. 10. Leading and misleading questions. — A question which suggests
injustice to the witness and the party who has called to the witness the answer which the examining party desires is a leading
him by affording an opportunity to the witness to question. It is not allowed, except:
explain or amplify the testimony which he has given (a) On cross examination;
on cross-examination and to explain any apparent (b) On preliminary matters;

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(c) When there is a difficulty is getting direct and intelligible answers A witness may be considered as unwilling or hostile
from a witness who is ignorant, or a child of tender years, or is of feeble only if so declared by the court upon adequate showing
mind, or a deaf-mute; of his adverse interest, unjustified reluctance to testify,
(d) Of an unwilling or hostile witness; or or his having misled the party into calling him to the
(e) Of a witness who is an adverse party or an officer, director, or witness stand.
managing agent of a public or private corporation or of a partnership or
association which is an adverse party. 5) Witness is an adverse party or an officer, director, or
A misleading question is one which assumes as true a fact not yet managing agent of a public or private corporation or of a
testified to by the witness, or contrary to that which he has previously partnership or association which is an adverse party.
stated. It is not allowed. (5a, 6a, and 8a)
Adverse party witness – adverse party himself
Leading questions – a question which suggests to the witness the
answer which the examining party desires; test: suggestiveness of the Adverse party’s witness – witness of the adverse party
question’s substance
- not confined to those answerable by yes/no Plaintiff Defendant
Witnesses: Witnesses:
e.g. “Were you in Sta. Mesa?”
1 (P) 1
GR: Leading questions not allowed. 2
 offer of testimonial evidence 3 (P)
Exceptions: varies
Adverse party makes the plaintiff
1) Cross examination as his 3rd witness; P won’t be
expected to answer
2) Preliminary matters – not applicable to documents which need
the laying of the basis Why present P? purposes may be
different when P presents P and D
e.g. “Who is the accused?” presents P
“Why do you know him?”
“Was he in the church?”  A declaration of being hostile made by the court does not
“Is it correct to say that you were employed by the preclude his being subject to cross-examination.
company?”
Misleading question – one which assumes as true a fact not yet
This may also be done for purposes of qualification of a testified to by the witness, or contrary to that which he has previously
witness stated.
3) Difficulty in getting direct and intelligible answers from a e.g. If there is no basis and this is asked: “Could you tell us why you
witness who is: were in Sta. Mesa?” or “While in Sta. Mesa, what did you do?”
a. Ignorant
b. Child of tender years
 Misleading questions are never allowed. No exceptions.
c. Feeble mind – cannot make a decision; confused
d. Deaf-mute
Sec. 11. Impeachment of adverse party's witness. — A witness may be
impeached by the party against whom he was called, by contradictory
4) Unwilling or hostile witness (cf Rule 132, Sec. 12) evidence, by evidence that his general reputation for truth, honestly, or
integrity is bad, or by evidence that he has made at other times statements
Sec. 12. Party may not impeach his own witness. – xxx inconsistent with his present, testimony, but not by evidence of particular
wrongful acts, except that it may be shown by the examination of the

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witness, or the record of the judgment, that he has been convicted of an  The credit of a witness cannot be impeached after the
offense. (15) hearing and decree, and a party desiring to impeach
his own witness must do so before closing his case.
Impeachment – right of a party to impeach the credibility of a witness
whom he did not call. Truth – means conformity to fact or reality; exact accordance with that
which is, or has been or shall be
 Generally, any fact or circumstance tending in the least to
discredit a witness is admissible to impeach him, and a party, Honesty – signifies the quality or state of being, straightforwardness of
especially the accused, is entitled to all the evidence in the conduct, thought, speech, etc.
case legitimately bearing upon the question of the veracity of
a witness of the prosecution. Integrity – defined as moral soundness; honesty; freedom from
corrupting influence or practice; especially strictness in the fulfillment
Ways to impeach: of contracts, the discharge of agencies, trusts, and the like;
uprightness, rectitude
1) General reputation for truth, honesty, integrity is bad – refers
to character  The impeaching testimony must be confined to the general
reputation of the witness as to truth, honesty or integrity.
2) Prior inconsistent statements – does not refer to character
a) Oral  Impeaching witnesses may themselves be impeached, but
b) Written only by the usual methods and by questions properly framed.

Impeachment of adverse party's witness: Sec. 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
1) Contradictory evidence producing a witness is not allowed to impeach his credibility.
2) Evidence that his general reputation for truth, honesty, or A witness may be considered as unwilling or hostile only if so declared by
integrity is bad the court upon adequate showing of his adverse interest, unjustified
3) Evidence that he has made at other times statements reluctance to testify, or his having misled the party into calling him to the
inconsistent with his present testimony witness stand.
4) Evidence of conviction of an offense shown by the The unwilling or hostile witness so declared, or the witness who is an
examination of the witness or the record of the judgment 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
Other modes of impeachment: 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
1) By involving him during the cross-examination in subject matter of his examination-in-chief. (6a, 7a)
contradictions
2) By showing the impossibility or improbability of his testimony GR: The party producing a witness is not allowed to impeach his
3) By proving acts or conduct of the witness inconsistent with his credibility.
testimony
4) By showing bias, interest or hostile feeling against the adverse Exceptions: When party may impeach his own witness (except
party evidence of bad character)

 Usually, the impeachment of a witness should take 1) Unwilling or hostile witness; or


place either during the cross-examination or during 2) Witness who is an adverse party or an officer, director, or
the presentation of the other party’s case. managing agent of a public or private corporation or of a
partnership or association which is an adverse party.

Grounds for declaring a witness unwilling or hostile:

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Requisites for impeaching a witness by prior inconsistent statements
1) Adverse interest which may be oral or in writing:
2) Unjustified reluctance to testify, or
3) Misled the party into calling him to the witness stand 1) If the statements be in writing they must be shown to the
witness before any question is put to him concerning them
Consequences of being an unwilling, hostile, or adverse witness: 2) Statements must be
a. Related to him
1) May be impeached by the proponent, except by evidence of b. With the circumstances of the times and places and
bad character the persons present
2) May also be impeached by the opponent 3) He must be asked whether he made such statements
3) May be cross-examined by the opponent, only on the subject 4) If so, allowed to explain them
matter of his direct examination
4) Proponent may ask leading questions  If the witness refuses to acknowledge the prior inconsistent
statement, present someone who can testify that the
Impeach – is applied to testimony to indicate that it is erroneous recording of the prior statement was accurate (e.g.
stenographer, in which case, the statement is prima facie
To impeach – to call into question the veracity of a witness by means evidence of the fact stated therein).
of evidence offered for that purpose, or by showing that the witness is
unworthy of belief  There must be a real inconsistency between the two
assertions of the witness. It is not a mere difference of
Impeachment – an allegation, supported by proof, that a witness who statement that suffices; nor yet is an absolute oppositeness
has been examined is unworthy of credit essential; it is an inconsistency that is required.

Credibility of a witness – their disposition and intention to tell the truth  To be impeaching, the prior testimony must not only be
in the testimony they have given contradictory, but must also have reference to matters
relevant to his testimony and the case.
Hostile witness – one who manifests so much hostility or prejudice
under examination-in-chief that the party who has called him, or his  In other words, the statement which it is intended to
representative, is allowed to cross-examine him, that is to treat him as contradict must involve facts in evidence, and the varying
though he had been called by the opposite party statements sought to be shown must be relevant to the
issues. To this rule, there is an exception, with respect to prior
Adverse party – adverse to the party calling him and actively seeks a statements showing the existence of bias, prejudice, or
recovery against, or opposing a recovery by such party, or a person interest denied by the witness.
for whose immediate benefit the action was brought or defended
 The proper foundation for impeachment depends upon
 A proper foundation should be laid in order to impeach a whether the inconsistent statement is oral or written.
witness.
 Statements of a witness, which are admissible as independent
Sec. 13. How witness impeached by evidence of inconsistent statements. evidence may be shown without laying the foundation for their
— Before a witness can be impeached by evidence that he has made at
admission, although they are contradictory to the testimony of
other times statements inconsistent with his present testimony, the
the witness and hence tend to impeach him.
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  When a witness is impeached by proof of prior inconsistent
statements be in writing they must be shown to the witness before any statements, its effect is merely to discredit him as witness;
question is put to him concerning them. (16) former statements are incompetent for any other purpose,

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and do not constitute evidence of truth of facts stated. It  cf R119 S21 Exclusion of the public if the evidence to be
bears on the witness’ credibility. produced during the trial is offensive to decency or public
morals (motu proprio or upon motion of the accused)
Sec. 14. Evidence of good character of witness. — Evidence of the good
character of a witness is not admissible until such character has been  The rule does not apply to the following:
impeached. (17) 1) Party to an action
2) Expert witnesses
cf Rule 130, Sec. 51 3) Witnesses in rebuttal
4) Agent of the party, when the presence of such agent is
Sec. 51. Character evidence not generally admissible; necessary, as when the agent has gained such familiarity
exceptions. – with the facts that his presence is necessary for the
xxx proper management of the action or defense
(c) In the case provided for in Rule 132, Section 14. (46 5) Witnesses called to testify to another witness’ character
a, 47 a) for truth and veracity
6) Policemen, detectives, or other police officers in criminal
 Evidence of the good character of a witness is not admissible cases in the court’s discretion
until such character has been impeached. 7) Party in interest, though not a party to the record

 GR: This rule applies to any witness  The court has wide discretion as to the order of proof,
Exc: Character evidence where specific provisions apply and it would be within that discretion to order the party to be
Does this apply to a party who is a witness? No but character called first.
of such witness may be attacked in offenses where character is
involved. (i.e. estafa) Sec. 16. When witness may refer to memorandum. — A witness may be
allowed to refresh his memory respecting a fact, by anything written or
 The character or reputation of a witness must be attacked or recorded by himself or under his direction at the time when the fact
impeached before testimony sustaining his character or occurred, or immediately thereafter, or at any other time when the fact was
reputation can be admitted, but it is not necessary that fresh in his memory and knew that the same was correctly written or
character witnesses for impeachment purposes should first be recorded; but in such case the writing or record must be produced and
introduced if the veracity or character of the witness has been may be inspected by the adverse party, who may, if he chooses, cross
substantially impeached in other ways. 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
 There is a distinction between an attack on the character of a recollection of the particular facts, if he is able to swear that the writing or
witness, as such, for credibility and an attack on the nature of record correctly stated the transaction when made; but such evidence
the testimony given for belief. must be received with caution. (10a)

Sec. 15. Exclusion and separation of witnesses. — On any trial or hearing, Requisites for a witness to refer to a memorandum:
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. 1) Memorandum must have been written or recorded by himself
The judge may also cause witnesses to be kept separate and to be or under his direction
prevented from conversing with one another until all shall have been 2) Either:
examined. (18) a. At the time when the fact occurred, or
b. Immediately thereafter, or
 This rule applies to the trial of civil and criminal cases. c. Any other time when the fact was fresh in his memory
 because other witnesses may attune their testimony to that 3) Knew that the same was correctly written or recorded
of the witness on the stand 4) Memorandum 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

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5) If the witness retains no recollection of the particular facts, he
must swear that the writing or record correctly stated the  If document is false, testimony is also false.
transaction when made
 “By anything written or recorded by himself or under
 While the general rule requires that a witness should his direction at the time when the fact occurred or
testify only to such facts as are within his personal immediately thereafter, or at any other time when the
knowledge and recollection, this requirement is not fact was fresh in his memory and he knew that the
violated by permitting him to refresh such knowledge. same was correctly written or recorded” applies to
both present recollection revived and past recollection
 The theory is simply that the knowledge or recorded.
recollection is that of the witness, resting on his
original personal observations, but that, having grown 3 Phases of practice: “Refreshment of memory”
hazy through lapse of time, a recreative stimulus may
properly be applied. 1) Instances where the witness’ faded memory is actually
refreshed so that he testifies from independent resensing or
 The rule contemplates two situations: revisualization of the event itself otherwise termed present
recollection of facts which is revived or refreshed by reading
1) Present recollection revived – evidence is the of the memorandum
testimony
2) Instances where the witness can no longer recall the event
2) Past recollection recorded – evidence is the itself in spite of the stimulations, but where he recalls from his
document; no independent recollection of fact; state of mind at the time a memorandum was made and
“So also…” checked up by him and that he then determined that it was a
correct memorandum in view of his then recollection
 In order that a writing may be admissible as a record
of the witness’ past recollection, a proper foundation 3) Instances where the witness can neither recall his original
must be laid by showing that the witness once knew memory of the event or his state of mind when the
the facts narrated in the memorandum, that he memorandum was made or checked up by him, but can swear
recollects the making of the memorandum, and that it from his habits and course of business or action that the
was truly made so that he can swear that it is correct. memorandum would not have existed or been approved by
It must be shown that the witness has no present him unless it was correct
independent recollection.
The last two (2) are termed “past recollection.”
 The memorandum is the document itself and should
not be a summary brief. It still has to be authenticated  A memorandum used as a record of past recollection must
in both cases. be made available to the other side for inspection and use
on cross-examination.
 Authentication does not usually happen if the
document is public. (irremovability of public record Sec. 17. When part of transaction, writing or record given in evidence, the
and the public officer would not testify) remainder admissible. — When part of an act, declaration, conversation,
writing or record is given in evidence by one party, the whole of the same
 If it is testimony, other party may examine and subject may be inquired into by the other, and when a detached act,
inspect. 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. (11a)
 If document is presented, mark as an exhibit and also
authenticate.

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 When part of an act, declaration, conversation, writing or
record is given in evidence by one party, the whole of the  Wills and last testaments are not included;
same subject may be inquired into by the other. these are personal

 When a detached act, declaration, conversation, writing or 3) Public records, kept in the Philippines, of private documents
record is given in evidence, any other act, declaration, required by law to be entered therein
conversation, writing or record necessary to its
understanding may also be given in evidence.  e.g.
notice of lis pendens (simple letter) and affidavit of
Sec. 18. Right to respect writing shown to witness. — Whenever a writing adverse claim (with jurat) recorded at the RD
is shown to a witness, it may be inspected by the adverse party. (9a)
birth certificate becomes public by reason of the
 Where a party has a document which he desires to introduce recording of the private document in a public office
in evidence, the adverse party has a right to inspect it to
enable him to cross-examine the witness.  cf 2004 Rules on Notarial Practice (A.M. No. 02-8-13-
SC effective August 1, 2004)
B. AUTHENTICATION AND PROOF OF DOCUMENTS
 The presentation of a certified true copy is
Sec. 19. Classes of Documents. — For the purpose of their presentation available in cases of official acts and public records.
evidence, documents are either public or private.
Public documents are: Private documents: by exclusion
(a) The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public officers, Public documents Private documents
whether of the Philippines, or of a foreign country; Genuineness and authenticity Must prove genuineness and
(b) Documents acknowledged before a notary public except last wills presumed due execution
and testaments; and Binding against the parties and Binds only parties to the
(c) Public records, kept in the Philippines, of private documents 3rd persons document
required by law to the entered therein.
Certain transactions are
All other writings are private. (20a)
required to be in a public
document (e.g. donation of real
 Documents are either public or private, for the purpose of property)
their presentation in evidence.
Sec. 20. Proof of private document. — Before any private document
Public documents:
offered as authentic is received in evidence, its due execution and
authenticity must be proved either:
1) Written official acts, or records of the official acts of the (a) By anyone who saw the document executed or written; or
sovereign authority, official bodies and tribunals, and public (b) By evidence of the genuineness of the signature or handwriting of
officers, whether of the Philippines, or of a foreign country the maker.
Any other private document need only be identified as that which it is
2) Notarized documents, except last wills and testaments – claimed to be. (21a)
acknowledged
Requisites for admissibility of private document:
 Transfer, cede, assign rights and interests
1) Offered as authentic – due execution and authenticity must be
 If lost: present either secondary evidence or proved either
certified true copy from the clerk of the court which
appointed or commissioned the notary (better option)

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a. By Authentication – process of evidencing the connection, i.e. evidencing
the genuineness of the thing; or evidencing that the thing here shown
i. Anyone who saw the document executed or did come from the very person or place testified to by the witness
written – personal knowledge
Genuineness and Due Execution of the document – that it is not
ii. Evidence of the genuineness of the spurious, counterfeit, or of different import on its face from the one
signature or handwriting of the maker. executed (its having been made by the purporting person)

a) Any witness who believes it to be the Cases where authenticity of a private document is not necessary:
handwriting of such person because
 He has seen the person write, 1) When the document is ancient
or 2) When the due execution or genuineness of the document is
 Has seen writing purporting to admitted
be his 3) When the due execution or genuineness of the document is
o Upon which the immaterial
witness has acted or 4) When the document need only to be identified e.g.
been charged, and anonymous letter (document is not offered as an authentic
o Has thus acquired document)
knowledge of the
handwriting of such Sec. 21. When evidence of authenticity of private document not necessary.
person — 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
b) Comparison, made by the witness or unblemished by any alterations or circumstances of suspicion, no other
the court, with writings evidence of its authenticity need be given. (22a)
 Admitted or treated as
Requisites for private documents to be exempt from authentication:
genuine by the party against
whom the evidence is offered,
1) Ancient documents – those which have been in existence for
or
more than 30 years
 Proved to be genuine to the
e.g. party to an agreement usually has a copy of the same
satisfaction of the judge
2) Produced from the custody in which it would naturally be
b. Unless it is an ancient document; requisites
found if genuine
i. More than 30 years old
3) Unblemished by any alterations or circumstances of suspicion
ii. Produced from a custody in which it would
 This is on the theory that under such circumstances,
naturally be found if genuine, and
the instrument proves itself.
iii. Unblemished by any alterations or
circumstances of suspicion  In computing the age of an ancient document, the
time is to be reckoned from the date of execution to
2) Not offered as authentic – identified as that which it is claimed the day when the instrument is to be offered in
to be evidence.

 The competency of the evidence is to be determined


by the state of things at the time when it is offered.

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 Document must be found in the proper custody and Sec. 24. Proof of official record. — The record of public documents
must on its face appear to be genuine. 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
Sec. 22. How genuineness of handwriting proved. — The handwriting of a attested by the officer having the legal custody of the record, or by his
person may be proved by any witness who believes it to be the deputy, and accompanied, if the record is not kept in the Philippines, with
handwriting of such person because he has seen the person write, or has a certificate that such officer has the custody. If the office in which the
seen writing purporting to be his upon which the witness has acted or record is kept is in foreign country, the certificate may be made by a
been charged, and has thus acquired knowledge of the handwriting of secretary of the embassy or legation, consul general, consul, vice consul,
such person. Evidence respecting the handwriting may also be given by a or consular agent or by any officer in the foreign service of the Philippines
comparison, made by the witness or the court, with writings admitted or stationed in the foreign country in which the record is kept, and
treated as genuine by the party against whom the evidence is offered, or authenticated by the seal of his office. (25a)
proved to be genuine to the satisfaction of the judge. (23a)
The record of public documents of official acts may be evidenced by:
The handwriting of a person may be proved:
1) Official publication thereof or
1) By any witness who believes it to be the handwriting of such 2) Copy
person, because: a. Attested by
a) He has seen the person write; or  Officer having the legal
b) He has seen writing purporting to be his upon which custody of the record, or
the witness acted or been charged, and has thus  His deputy, and
acquired knowledge of the handwriting of such person
b. If the record is not kept in the Philippines
2) By a comparison with writings admitted or treated as genuine  Accompanied by a certificate that such officer has
by the party against whom the evidence is offered, or proved the custody made by
to be genuine to the satisfaction of the judge, made by the: o Secretary of the embassy or legation
a) Witness, or the o Consul general
b) Court o Consul
o Vice consul, or
Sec. 23. Public documents as evidence. — Documents consisting of o Consular agent or
entries in public records made in the performance of a duty by a public o Any officer in the foreign service of the
officer are prima facie evidence of the facts therein stated. All other public
Philippines stationed in the foreign country in
documents are evidence, even against a third person, of the fact which
which the record is kept
gave rise to their execution and of the date of the latter. (24a)
 Authenticated by the seal of his office
Documents consisting of:
Procedure in obtaining copy of foreign official acts:
1) Entries in public records made in the performance of a duty by
a public officer – prima facie evidence of the facts therein 1) Get a copy from the legal custodian
stated. 2) Have the legal custodian attest that the copy is correct
3) Have the Philippine consul certify that the person in #2 is the
2) All other public documents – evidence, even against a 3rd legal custodian of a copy of official act
person, of the fact which gave rise to their execution and of
the date of the latter  The test of the admissibility of an official record or
document is its public character, and where the
 The rule is not absolute. Their probative value may be records are essentially private in character, they may
either substantiated or nullified by other competent not be admitted as public records, as where they were
evidence.

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not kept by a public officer in the regular course of
business. Sec. 26. Irremovability of public record. — Any public record, an official
copy of which is admissible in evidence, must not be removed from the
S24: office in which it is kept, except upon order of a court where the
1) Official publication inspection of the record is essential to the just determination of a pending
a) Official Gazette case. (27a)
b) Newspaper of general circulation
GR: Any public record, an official copy of which is admissible in
2) Certified true copy evidence, must not be removed from the office in which it is kept.
a) If foreign, consular office (civic, social, economic
functions) Exception: Upon order of a court where the inspection of the record is
essential to the just determination of a pending case
If there is no embassy, go to the facilities of the DFA.
 Records, being the precedent of the demonstration of justice,
Taiwan only has a consular office. It has no embassy to which every man has a common right to have recourse,
MECO-TECO (One-China policy) – go here for documents cannot be transferred from place to place to serve a private
purpose; and therefore, they have a common repository, from
Sec. 25. What attestation of copy must state. — Whenever a copy of a where they ought not to be removed.
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  The court can require the presence of the legal custodian
a specific part thereof, as the case may be. The attestation must be under through the issuance of a subpoena.
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. (26a) Sec. 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
Attestation of copy must: copy thereof, attested by the legal custodian of the record, with an
appropriate certificate that such officer has the custody. (28a)
1) State the copy is a correct copy of the original, or a specific
part thereof, as the case may be Public record of a private document may be proved by:

2) Be under the official seal of the attesting officer, if there be 1) Original record, or
any, or if he be the clerk of a court having a seal, under the 2) Copy thereof
seal of such court a) Attested by the legal custodian of the record
b) With an appropriate certificate that such officer has the
 It is not necessary that particular words be used to custody
make effective a certificate attesting a paper as a
certified copy. On principle, the certificate need state  Public records kept in the Philippines of private
no more than that the paper bearing it is a copy of a writings are public writings, and a copy of the
specified document in the certifier’s custody. same, duly certified to be true, should be
admissible in evidence the same as the original
 There must be showing that the person has authority. writing.

 Include the position of the person attesting. Sec. 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
 The seal is very important. 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
To certify – to affirm or to assert in writing the correctness or identity admissible as evidence that the records of his office contain no such
of the designated instrument record or entry. (29)

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3) Show the divestiture or acquisition of certain legal rights
Proof of lack of record: through the
rendition of the judgment
1) Written statement e.g. actions on judgments and actions involving property sold
a) Signed by an officer having the custody of an official under a writ of execution
record or by his deputy
b) That after diligent search no record or entry of a 4) Show that an issue involved in the principal case was
specified tenor is found to exist in the records of his previously adjudicated
office, e.g. judgment of conviction or acquittal of the defendant in a
2) Accompanied by a certificate that such officer is supposed to criminal case may be offered under a plea of double jeopardy
have custody by the same defendant in a subsequent prosecution of the
offense charged in the first case
 Certificate is enough but could still be questioned.
 A judgment void for want of jurisdiction is open to
If a notarized document is lost, get certifications of loss from: contradiction or impeachment in a collateral proceeding.

1) Notary public Collusion in judicial proceedings – agreement between two persons


2) Bureau of archives that the one should institute a suit against the other, in order to
3) Clerk of court who commissioned the notary public obtain the decision of a judicial tribunal for some sinister purpose

Sec. 29. How judicial record impeached. — Any judicial record may be  An action to annul a judgment based on fraud cannot prosper
impeached by evidence of: (a) want of jurisdiction in the court or judicial unless the fraud be extrinsic or collateral or unless the fraud
officer, (b) collusion between the parties, or (c) fraud in the party offering refers to the jurisdiction of the court, and that the facts
the record, in respect to the proceedings. (30a) constituting it have not been in controversy nor resolved in
the case wherein the judgment, whose nullity is sought, has
Any judicial record may be impeached by evidence of: been obtained.

1) Want of jurisdiction in the court or judicial officer Extrinsic fraud – fraud in the means whereby the judgment was
2) Collusion between the parties, or procured, and not fraud in the cause of action or matter put in issue
3) Fraud in the party offering the record, in respect to the and present for adjudication; not appearing on the pleadings
proceedings
e.g. convince the other party not to participate in the proceedings
Judicial record – record, official entry, or files of the proceedings in a with the promise of withdrawal of the suit but such withdrawal was not
court of justice, or of the official act of a judicial officer, in an action, eventually made
suit, or proceeding
Sec. 30. Proof of notarial documents. — Every instrument duly
A judgment may be used as evidence to prove its own existence and acknowledged or proved and certified as provided by law, may be
is generally used for one of four purposes: To presented in evidence without further proof, the certificate of
acknowledgment being prima facie evidence of the execution of the
1) Prove a fact collateral to the issues involved in the principal instrument or document involved. (31a)
case
e.g. production of the record of conviction to impeach a Every instrument duly acknowledged or proved and certified as
witness provided by law:

2) Show a course of conduct previously taken by a party to a 1) May be presented in evidence without further proof
principal case

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2) Certificate of acknowledgment being prima facie evidence of  The term “alteration” imports some fraud or improper
the execution of the instrument or document involved design on the part of the person entitled thereunder to
change the effect of the instrument, and if the act is
 An affidavit with jurat is not public. done by a stranger, without privity or consent of the
parties, it is ordinarily termed an “spoliation” or
 The presentation of the original suffices. “mutilation” and its legal consequences are
distinguishable with respect to the parties to the
Sec. 31. Alteration in document, how to explain. — The party producing a instrument from those of a technical alteration
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,  Therefore, one has to examine every document
must account for the alteration. He may show that the alteration was made presented and manifest if there are alterations.
by another, without his concurrence, or was made with the consent of the
parties affected by it, or was otherwise properly or innocently made, or Sec. 32. Seal. — There shall be no difference between sealed and unsealed
that the alteration did not change the meaning or language of the private documents insofar as their admissibility as evidence is concerned.
instrument. If he fails to do that, the document shall not be admissible in (33a)
evidence. (32a)
 This refers to private documents.
The party producing a document as genuine which has been altered
and appears to have been altered after its execution, in a part Sec. 33. Documentary evidence in an unofficial language. — Documents
material to the question in dispute: written in an unofficial language shall not be admitted as evidence, unless
accompanied with a translation into English or Filipino. To avoid
1) Must account for the alteration, either as interruption of proceedings, parties or their attorneys are directed to have
such translation prepared before trial. (34a)
a. Made by another, without his concurrence, or
b. Made with the consent of the parties affected by it, or Documents written in an unofficial language:
c. Properly or innocently made, or
d. Alteration did not change the meaning or language of 1) Shall not be admitted as evidence, unless accompanied with a
the instrument translation into English or Filipino
2) Parties or their attorneys are directed to have such translation
2) If he fails to do that, the document shall not be admissible in prepared before trial
evidence
C. OFFER AND OBJECTION
Alteration in an instrument – a change in the instrument by a party
thereto or one entitled thereunder or one in privity with such a person Sec. 34. Offer of evidence. — The court shall consider no evidence which
after the instrument has been signed or fully executed, without has not been formally offered. The purpose for which the evidence is
consent of the party to it, by an erasure, interlineations, addition, or offered must be specified. (35)
substitution of material matter affecting the:
 Identity of the instrument or contract; or  The court shall consider no evidence which has not been
 Rights or obligations of the parties formally offered.

 In order that the change may constitute an alteration  The judge determines if evidence is excluded: Offer –
in this sense, the act must be one by which the Comment
meaning or language of the instrument is changed,
but by which its identity is not otherwise destroyed.  The purpose for which the evidence is offered must be
specified.

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 A document or article is not evidence when it is simply  The objection is limited to the ground or grounds
marked for identification; it must be formally offered in specified and does not cover others not specified. Where
evidence, and the opposing counsel must have an opportunity specific grounds are stated, the implication is that there
of objecting to it or of cross-examining any witness called to are no others, or, if there are others, that they are
prove or identify it. waived.

Sec. 35. When to make offer. — As regards the testimony of a witness, the  A specific objection overruled will be effective to
offer must be made at the time the witness is called to testify. the extent of the grounds specified, and no further.
Documentary and object evidence shall be offered after the presentation
of a party's testimonial evidence. Such offer shall be done orally unless  An objection to evidence cannot be made in
allowed by the court to be done in writing. (n) advance of the offer of the evidence sought to be
introduced (premature objection).
When to make offer:
 Where evidence is competent on any ground, the
1) Testimony – the time the witness is called to testify; give a court may properly admit the evidence over objection.
gist of the proposed testimony and what it seeks to establish
2) Documentary and Object – after the presentation of a party's  A waiver as to the competency of a witness is not
testimonial evidence; specify the purpose for which they are a waiver of the right to object to the competency of such
being offered person’s testimony.
 Offer of evidence shall be done orally unless allowed  Failure to object to evidence at the time it is
by the court to be done in writing. offered is a waiver of objections to its admissibility.
Sec. 36. Objection. — Objection to evidence offered orally must be made
 Objection to evidence cannot be raised for the first
immediately after the offer is made.
time on appeal.
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.  Question propounded in the course of the oral
An offer of evidence in writing shall be objected to within three (3) days examination – as soon as the grounds therefor shall
after notice of the unless a different period is allowed by the court. become reasonably apparent
In any case, the grounds for the objections must be specified. (36a)
 Grounds for the objections should always be
When objection to evidence offered must be made: specified.

1) Orally – immediately after the offer is made  Grounds for objection:


2) In writing – within 3 days after notice of the offer, unless a
different period is allowed by the court i. Hearsay
ii. Argumentative
 The office of an objection is to stop an answer to a iii. Leading
question put to a witness, or to prevent the receipt of a iv. Misleading
document in evidence until the court has had v. Immaterial
opportunity to make a ruling upon its admissibility; the vi. Incompetent
objection lays the foundation for an exception to an vii. Irrelevant
adverse ruling by the court, warning both court and viii. Vague/confusing/ambiguous/unintelligible
counsel that such adverse rulings may be the basis of ix. Self-serving
appellate review. x. Privileged communication
xi. Lack of foundation

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xii. Lack of authentication  This is to highlight and put the appellate court on
xiii. Question is repetitive (asked and answered) notice as to such objections.
xiv. Question asks for a speculative answer
xv. Question is a compound question  There is no need for the judge to rule.
xvi. Question violates the witness’ rights under the
Rules Exceptions: Where
xvii. Multiple questions
xviii. Improper impeachment 1) Subsequent evidence is not of the same kind
xix. Improper judicial notice 2) Question has not been answered
xx. Witness not properly qualified 3) Incompetency of evidence is later shown
xxi. Self-incrimination 4) Objection refers to preliminary questions
xxii. Beyond the scope of the previous examination 5) Objection to evidence was sustained but re-offered at a later
xxiii. Opinion evidence stage of trial
xxiv. Calls for a narrative 6) Evidence admitted on condition
xxv. Calls for a conclusion 7) Court reserves ruling on objection
xxvi. Violates the best evidence rule
xxvii. Violates the parole evidence rule Sec. 38. Ruling. — The ruling of the court must be given immediately after
xxviii. Lack of basis; assumes a fact not established the objection is made, unless the court desires to take a reasonable time
to inform itself on the question presented; but the ruling shall always be
Sec. 37. When repetition of objection unnecessary. — When it becomes made during the trial and at such time as will give the party against whom
reasonably apparent in the course of the examination of a witness that the it is made an opportunity to meet the situation presented by the ruling.
question being propounded are of the same class as those to which The reason for sustaining or overruling an objection need not be stated.
objection has been made, whether such objection was sustained or However, if the objection is based on two or more grounds, a ruling
overruled, it shall not be necessary to repeat the objection, it being sustaining the objection on one or some of them must specify the ground
sufficient for the adverse party to record his continuing objection to such or grounds relied upon. (38a)
class of questions. (37a)
The ruling of the court on an objection:
Requisites for a proper continuing objection:
1) Must be given immediately after the objection is made
1) In the course of the examination of a witness 2) Unless the court desires to take a reasonable time to inform
2) Objection has been made itself on the question presented; but the ruling shall always be
3) Reasonably apparent that the questions being propounded are made
of the same class as those to which objection has been made a) During the trial and
4) Adverse party records his continuing objection to such class of b) Such time as will give the party against whom it is made
questions an opportunity to meet the situation presented by the
ruling
 Where an objection to evidence is distinctly made and
overruled, it need not be repeated to the same class GR: The reason for sustaining or overruling an objection need not be
of evidence subsequently received, although the stated.
evidence is given by, or the question asked of,
another witness. Exception: If the objection is based on two or more grounds, a ruling
sustaining the objection on one or some of them must specify the
 The court may treat the objection as a continuing one. ground or grounds relied upon.
Instead of repeating the objection to the same class of
questions, the adverse party may records his  The parties may ask for the ground for the ruling, even if the
continuing objection thereto. rules do not require the judge to so state.

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 The court need not rule on objections to evidence until it is
offered.  A motion to strike out evidence is properly denied if it
is not sufficiently definite. Where only a part of the
 Where evidence is admitted subject to a future ruling, the evidence is admissible, a general motion to strike out
objecting party must renew his objection and secure a ruling without specifying the particular part objected to must
thereon. be denied.

 Rulings should be unequivocal and so definite in character as  A motion to strike out evidence should be acted upon
to leave no room for doubt as to what evidence is admitted seasonably.
and what is excluded.
Sec. 40. Tender of excluded evidence. — If documents or things offered in
 When an objection to a question is sustained, it means that evidence are excluded by the court, the offeror may have the same
the court declares the question improper, and the witness attached to or made part of the record. If the evidence excluded is oral, the
ought not to answer it. offeror may state for the record the name and other personal
circumstances of the witness and the substance of the proposed
Sec. 39. Striking out answer. — Should a witness answer the question testimony. (n)
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  Where the court refuses to permit the counsel to
sustain the objection and order the answer given to be stricken off the present testimony which he thinks is competent, material and
record. necessary to prove his case, the method of properly
On proper motion, the court may also order the striking out of answers preserving the record to the end that the question may be
which are incompetent, irrelevant, or otherwise improper. (n) saved for the purposes of review, is through the making of an
offer of proof (tender of excluded evidence).
Requisites for Striking out an answer:
 When witness is not allowed to testify, the offeror
1) Witness answers the question before the adverse party had may state the circumstances, purpose and substance of the
the opportunity to voice fully its objection testimony.
2) Objection is found to be meritorious
3) Court order that the answer given to be stricken off the record  Where evidence is inadmissible when offered and
excluded, but thereafter becomes admissible, it must be re-
 On proper motion, the court may also order the offered, unless the court indicates that a second offer would
striking out of answers which are incompetent, be useless.
irrelevant, or otherwise improper.
 A re-offer of proof once ruled out by the court
 This is to remove it and that it should not appear on must be timely made. An offer of proof is made at the proper
record. time when objection is made to the question put to the
witness, and the court has sustained the objection.
 Ideally, an objection must be interposed as soon as
the grounds therefor become evident. However, it If documents or things offered in evidence are excluded by the court,
usually happens that despite the alertness of the the offeror may:
counsel, a witness answers the question with alacrity
(eagerness) before the adverse party has had the 1) Have the same attached to or made part of the record, if the
opportunity to voice fully his objection. In that case, evidence is object or documentary
the court shall sustain the objection, if it finds the 2) If the evidence excluded is oral, the offeror may state for the
same to be meritorious, and shall order the striking record:
out if such answer.

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a) Name and other personal circumstances of the witness
and Observation:
b) Substance of the proposed testimony a) Opportunities for observation
b) Capacity for observation
 The object is described and is eventually deposited with the c) Attention as a condition of correct observation
court. The same should be properly received to avoid getting d) Interest as a condition of observation
misplaced. e) Particular circumstances affecting the power of
observation:
RULE 133 i. Interest
ii. Conversation diverting attention
Weight and Sufficiency of Evidence iii. Fear, horror or excitement
iv. Observation of ignorant persons
SECTION 1. Preponderance of evidence, how determined. — In civil v. Intoxication
cases, the party having burden of proof must establish his case by a
preponderance of evidence. In determining where the preponderance or Memory:
superior weight of evidence on the issues involved lies, the court may a) Memory in general
consider all the facts and circumstances of the case, the witnesses' b) Questions about the memory of witnesses that usually
manner of testifying, their intelligence, their means and opportunity of arise in the trial of the case
knowing the facts to which there are testifying, the nature of the facts to c) The “Actor Rule”
which they testify, the probability or improbability of their testimony, their d) Particular circumstances affecting memory
interest or want of interest, and also their personal credibility so far as the e) Memory of person making dying declarations
same may legitimately appear upon the trial. The court may also consider f) Recently or remoteness of facts
the number of witnesses, though the preponderance is not necessarily g) Effect of prior contradictory statements when memory
with the greater number. (1a) was presumptively better
h) Memory of important or trivial facts
 Proof is confined to the issues raised in the pleadings. The i) Striking incidence in transaction or event
weight of evidence is not a question of mathematics, but j) Matters inherently difficult to recollect
depends on its effect in inducing belief, under all of the facts k) Memory of events attended by excitement or
and circumstances. commotions or inspiring fear
l) Memory of rapid succession and of order and
 In civil cases, the party having the burden of proof must sequence of events
establish his case by a preponderance of evidence. Stated m) Memory deceived by leading questions
differently, the general rule in civil cases is that the party n) Memory of biased witnesses
having the burden of proof of an essential fact must produce a o) Memory revived by association of ideas
preponderance of evidence thereon. p) Memory refreshed by memorandum
q) Memory of dates
In determining where the preponderance or superior weight of r) Fixing dates by collateral facts
evidence on the issues involved lies, the court may consider: s) Memory of time of day
t) Estimates of periods of time
1) All the facts and circumstances of the case u) Collateral facts constituting indicia of time
v) Estimates of time by biased witnesses
2) Witnesses' manner of testifying w) Influences affecting estimates of time
x) Memory of oral statements, conversations, etc.
3) Intelligence y) Whose memory of conversation is best?
z) Memory of dead man’s statements
4) Means and opportunity of knowing the facts to which they are i. Oral promises in relation to statute of frauds
testifying

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ii. Attorneys testifying to oral stipulations or Interested witness – may be a party to an action or a person
admissions directly interested in the event of a trial, assuming that he is
competent to testify
5) Nature of the facts to which they testify
8) Personal credibility so far as the same may legitimately
a) Dates appear upon the trial.
b) Time of day
c) Oral statements Credibility of a witness – their disposition and intention to tell
the truth in the testimony they have given
6) Probability or improbability of their testimony
Personal credibility – as applied to a witness, means that
Probability means consonance to reason. which would lead a court to believe or disbelieve what the
Improbabilities are provable. An improbable fact properly witness has said by reason of his appearance and manner
verified is not to be rejected because of such improbability. before them while testifying

a) Testimony inherently improbable 9) Number of witnesses, though the preponderance is not


b) Testimony contrary to natural laws necessarily with the greater number.
c) Testimony contrary to the natural course of things
d) Mathematical impossibilities Preponderance of evidence does not consist merely in the
e) Incredible coincidences greater numerical array of witnesses, but means the weight,
f) Acts opposed to common sense credit, and the value of the aggregate evidence on either side.
g) Testimony contrary to common observation and
experience In case of conflicting testimonies, the numerical factor may be
h) Improbability of improvident business transactions given certain weight.
i) Important contracts made without written evidence
improbable A cause of action on the ground of reformation of instrument must be
j) Payments without taking receipt proven by clear and convincing evidence.

7) Interest or want of interest Rules for weighing evidence:

Generally, the interest of a witness, as affecting his credibility, 1) The axiomatic rule: Evidence which is justly open to criticism
signifies the specific inclination which is apt to be produced by derogating from its trustworthiness is inferior in weight to
the relation between the witnesses and the facts at issue in opposing evidence free from perceptible defects.
the litigation, and connotes or implies concern for the 2) The “admitted facts” rule: Evidence of whatever description
advantage or disadvantage of the parties to the cause. must yield to the extent that it conflicts with admitted or
clearly established facts,
Biased witness – one who has a motive to color his 3) Written evidence superior to oral
statements, to suppress the truth, or to state what is false. 4) Positive testimony superior to negative

Bias – that which excites a disposition to see and report Rules of construction of testimony:
matters as they are wished for rather than as they are
- as applied to a witness, it is the leaning of the mind, a 1) Testimony must be considered as a whole, and the true
mental prejudice or predilection meaning of answers to isolated questions is to be ascertained
by due consideration of all the questions propounded to the
Bias of a witness goes only to his credibility, and is not a witness and his answers thereto.
reason for exclusion of his testimony. 2) Courts must subordinate the literal terms used by a witness
to the substance and effect of his testimony.

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3) The language of a witness must be construed in its ordinary 2) Moral certainty only is required, or that degree of proof which
sense, and that meaning given to it which he evidently produces conviction in an unprejudiced mind
intended to convey.
4) If the meaning intended by the witness cannot safely be Moral certainty – a certainty that convinces and directs the
ascertained, his testimony should be taken to its natural understanding and satisfies the reason and judgment of those who are
import and meaning. bound to act conscientiously upon it
5) Where the question put to a witness is long and contains
more than one point, the common habit of witness to answer Presumption of Innocence Reasonable Doubt
only the last point mentioned in the question, should be taken Conclusion drawn by law in favor Condition of the mind produced
into consideration in the construction of his testimony. of a citizen by proof resulting from evidence
6) Technical meaning of words is not necessarily controlling. in the case
7) When the testimony of a party is self-contradictory, the Evidence introduced by law to be Result of insufficient proof
courts are fully justified in taking against him that version of considered by the court
his testimony which is most unfavorable to him.
8) Where proof as well as pleading is of a doubtful or equivocal  A defense of self-defense must be proven by clear and
character, it must be construed least favorably to the party convincing evidence. Accused must rely on the
offering it. strength of his own evidence and not on the weakness
9) Where testimony is ambiguous, and there is doubt as to its of that of the prosecution.
correct application to the facts in question, the promotion of  Alibi must be proved by positive, clear and
truth and justice to the witnesses require that construction satisfactory evidence. To establish an alibi, defendant
which will render it as consistent as possible with the must not only show that he was present at some other
opposing evidence. place about the time of the alleged crime, but also
10) Where a question addressed to a party by his own counsel is that he was at such other place for so long a time,
a composite one, and the witness replies No, it can hardly be that it was impossible for him to have been at the
considered as a categorical denial of an individual query. place where the crime was committed, either before
11) Reading the typewritten report of the testimony as taken by a or after the time he was at such other place. As a rule,
stenographer, the court may well be satisfied that the alibi is a weak defense and cannot prevail over the
stenographer made a mistake, and what the witness actually positive testimony of truthful witnesses.
said may sufficiently appear from the context.
Sec. 3. Extrajudicial confession, not sufficient ground for conviction. —
Conflicting testimony must be reconciled, if it can reasonably be done. An extrajudicial confession made by an accused, shall not be sufficient
ground for conviction, unless corroborated by evidence of corpus delicti.
Sec. 2. Proof beyond reasonable doubt. — In a criminal case, the accused (3)
is entitled to an acquittal, unless his guilt is shown beyond reasonable
doubt. Proof beyond reasonable doubt does not mean such a degree of  An extrajudicial confession made by an accused, shall not be
proof, excluding possibility of error, produces absolute certainly. Moral sufficient ground for conviction, unless corroborated by
certainly only is required, or that degree of proof which produces
evidence of corpus delicti.
conviction in an unprejudiced mind. (2a)
 The rule does not mean that all the elements of the crime
 In a criminal case, the accused is entitled to an acquittal,
must be clearly established by evidence independent of that
unless his guilt is shown beyond reasonable doubt.
confession. It only means that there should be some evidence
tending to show the commission of the crime apart from the
Proof beyond reasonable doubt:
confession.
1) Does not mean such a degree of proof as, excluding possibility
of error, produces absolute certainty

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 Corpus delicti must be proved by evidence other than the
accused’s confession to guard against convictions upon false 2) The facts from which the inferences are derived are proven,
confessions of guilt. and
 The circumstances are not themselves presumed.
 Proof of the locus of the crime is not necessary in order to  An inference cannot be based on another inference.
establish the corpus delicti. The facts upon which the inference may legitimately
rest must be established by direct evidence, and to
 It is sufficient ground for conviction when the prima facie the same degree as the main fact.
proof of corpus delicti and the confession, taken together,
show the accused’s guilt beyond reasonable doubt. 3) The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt
Corpus delicti – “the body of the offense, the substance of the crime”  In criminal prosecutions, a resort to circumstantial
- defined in its primary sense as the fact that a crime actually evidence is, in the very nature of things, a necessity.
has been committed  Direct proof is not essential to establish conspiracy.
- as applied to a particular offense, means the actual
commission by someone of the particular crime charged  All the circumstances must be consistent with
each other, consistent with the hypothesis
homicide: fact of death and the criminal agency of another person as that the accused is guilty, and at the same
the cause thereof time, inconsistent with the hypothesis that he
embezzlement: agency, control, ownership and conversion of is innocent, and with every other rational
principal’s money hypothesis except that of guilt.
theft: taking of the property without the consent of the owner
Circumstantial evidence – that which relates to a series of other facts
 Elements of corpus delicti: existence of a certain act of result than that fact in issue, which by experience have been found so
forming the basis of the criminal charge, as the occurrence of associated with that fact that in the relation of cause and effect, they
injury or loss; and the existence of a criminal agency as the lead to a satisfactory conclusion
cause of this act or result - consists of proof of collateral facts and circumstances from
which the existence of the main fact may be inferred
according to reason and common experience
1) Certain result has been produced  end result of an act
- evidence which tends to establish the fact to be proved
e.g. death
through inference based on human experience that that fact
exists when a certain circumstance or set of circumstances is
2) Some person is criminally responsible for the act  fact present
that the end result was produced by a criminal act - sometimes referred to as indirect or presumptive evidence
e.g. shooting caused such death
Circumstantial Evidence Direct Evidence
Sec. 4. Circumstantial evidence, when sufficient. — Circumstantial Evidence which, without going Evidence which, if believed,
evidence is sufficient for conviction if: directly to prove the existence of proved the existence of the fact
(a) There is more than one circumstances; a fact, gives rise to a logical in issue without any inference or
(b) The facts from which the inferences are derived are proven; and inference that such fact does presumption
(c) The combination of all the circumstances is such as to produce a exist
conviction beyond reasonable doubt. (5) Given of facts and circumstances Witnesses testify directly of their
from which the court may infer own knowledge as to the main
Circumstantial evidence is sufficient for conviction if: other connected facts which facts to be proved
reasonably follow, according to
1) There is more than one circumstance the common experience of
 It is more like a rope composed of several cords.

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mankind
Equally direct evidence of a minor Intended evidence which applies  The discretion must be an actual and judicial discretion,
fact or facts of such a nature that directly to the fact which forms exercised in view of the special character and circumstances
the mind is led intuitively, or by a the subject of inquiry, the factum of the particular case.
conscious process of reasoning, probandum
towards or to the conviction that  When the fact in issue is collateral to the main issue, the court
from it or them some other fact may, in its discretion, limit the number of witnesses.
may be inferred
Identical nature  The number of witnesses to give opinion evidence may also
be limited.
Sec. 5. Substantial evidence. — In cases filed before administrative or
quasi-judicial bodies, a fact may be deemed established if it is supported  Whether further evidence will be allowed after a party offering
by substantial evidence, or that amount of relevant evidence which a the evidence has rested his case lies within the discretion of
reasonable mind might accept as adequate to justify a conclusion. (n) the trial judge, and this discretion will not be reviewed except
in clear case of abuse.
 In cases filed before administrative or quasi-judicial bodies, a
fact may be deemed established if it is supported by Sec. 7. Evidence on motion. — When a motion is based on facts not
substantial evidence. appearing of record the court may hear the matter on affidavits or
depositions presented by the respective parties, but the court may direct
 Applicable in the following: that the matter be heard wholly or partly on oral testimony or depositions.
o Private employee’s violation of company rules (7)
o NLRC
When a motion is based on facts not appearing of record:
 Not applicable in the following:
1) Court may hear the matter on affidavits or depositions
o Ombudsman – probable cause
presented by the respective parties
o Sandiganbayan – beyond reasonable 2) But the court may direct that the matter be heard wholly or
doubt partly on oral testimony or depositions
Substantial evidence – that amount of relevant evidence which a Affidavit Deposition
reasonable mind might accept as adequate to justify a conclusion;
Always taken ex parte Opposite party has an opportunity
lower than preponderance
to cross-examine the witness
- more than a mere scintilla
- does not necessarily import preponderant evidence as
required in an ordinary civil case  This refers to facts put in issue in a motion, and not to facts
- means such evidence which affords a substantial basis from alleged in the pleadings. Such facts alleged in a motion may
which the fact in issue can be reasonably inferred be proved by affidavits and depositions, but the court, in its
discretion, may order that oral testimony be presented before
it; or before a commissioner appointed in accordance with R32
Sec. 6. Power of the court to stop further evidence. — The court may stop
the introduction of further testimony upon any particular point when the S2 (c): Reference to a commissioner ordered on motion when
evidence upon it is already so full that more witnesses to the same point a question of fact, other than upon the pleading, arises upon
cannot be reasonably expected to be additionally persuasive. But this motion or otherwise, in any stage of a case, or for carrying a
power should be exercised with caution. (6) judgment or order into effect.

 The trial court may, in its discretion, restrict the number of RULE 134
witnesses to establish a particular fact, at least where the fact
Perpetuation of Testimony
is sufficiently established and is not controverted.

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parties and their addresses so far as known; and (e) the names and
[NOTE: This rule will be transposed to Part 1 of the Rules of Court on addresses of the persons to be examined and the substance of the
Deposition and Discovery] testimony which he expects to elicit from each, and shall ask for an order
authorizing the petitioner to take the depositions of the persons to be
The Rules of Court contemplates three (3) different situations for the examined named in the petition for the purpose of perpetuating their
taking of depositions: testimony.

1) Depositions taken pending an action Material allegations of petition:


2) Depositions taken pending an appeal
3) Depositions taken in contemplation of a forthcoming action 1) Expectancy of action
2) Subject matter of the expected action and petitioner’s interest
The last 2 kinds are designated as perpetuation of testimony. therein
3) Facts which petitioner desires to establish by the proposed
Kinds of petitions to perpetuate testimony: testimony and his reasons thereof
4) Names of expected adverse parties and their addresses so far
1) To perpetuate the testimony or examine the witnesses in as known
perpetuam rei memoriam 5) Identity of persons to be examined and substance or nature of
their expected testimony
6) Prayer for relief
2) To examine witnesses de bene esse, which is commonly
brought after the commencement of a suit by a person out of  A petition for perpetuation of testimony should show
possession to perpetuate testimony which is in danger of plainly that the court would have jurisdiction of the
being lost before the matter to which it relates can be contemplated action, in aid of which the testimony is
examined into by the proper tribunal to be contemplated.
 The perpetuation of testimony may not be used for  An affidavit setting forth the facts indicating the
framing or drafting of a complaint, but only for the danger of the loss of the testimony is necessary,
purpose of preserving known testimony against either as part of the petition itself or as supplementary
danger of loss. thereto.
 Perpetuation of testimony before action should be Sec. 3. Notice and service. — The petitioner shall thereafter serve a
limited to the taking of depositions and may not notice upon each person named in the petition as an expected adverse
properly include inspection, survey and photographing party, together with a copy of a petition, stating that the petitioner will
of property. apply to the court, at a time and place named therein, for the order
described in the petition. At least twenty (20) days before the date of
SECTION 1. Petition. — A person who desires to perpetuate his own hearing the notice shall be served in the manner provided for service of
testimony or that of another person regarding any matter that may be summons.
cognizable in any court of the Philippines, any file a verified petition in the
court of the province of the residence of any expected adverse party.
 A proceeding to perpetuate testimony cannot be ex parte. It
Sec. 2. Contents of petition. — The petition shall be entitled in the name requires the filing of a petition and the service of process in
of the petitioner and shall show: (a) that the petitioner expects to be a the usual manner upon the defendants interested. The
party to an action in a court of the Philippines by is presently unable to adverse party must be given an opportunity to be heard but
bring it or cause it to be brought; (b) the subject matter of the expected the hearing must be confined to the issues involved therein.
action and his interest therein; (c) the facts which he desires to establish
by the proposed testimony and his reasons for desiring to perpetuate it;
(d) the names or a description of the persons he expects will be adverse

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 Notice shall be served in the manner provided under R14 and  Where an expected adverse party is duly notified of the
the time of the serving of the notice must be at least twenty petition proceeding, but not of the taking of a deposition, the
(20) days before the date of the hearing of the petition. deposition may not be used against him in a subsequent
action, although involving the same subject matter.
Sec. 4. Order of examination. — If the court is satisfied that the
perpetuation of the testimony may prevent a failure or delay of justice, it  Where an expected adverse party is duly notified only of the
shall make an order designating or describing the persons whose taking of the deposition, and not of the petition proceeding,
deposition may be taken and specifying the subject matter of the the deposition may not be used against him in a subsequent
examination, and whether the depositions shall be taken upon oral action, unless he participates in the taking of the deposition
examination or written interrogatories. The depositions may then be taken and such participation can be construed as a waiver of notice
in accordance with Rule 24 before the hearing. of the petition for perpetuating testimony.

 The court must determine whether the necessity for  The perpetuation of testimony in itself does not prove the
entertaining the petition exists. The right to perpetuate existence of any right. By reason of its very nature, it can
testimony does not depend on the condition of the witness, refer to nothing but facts, if consisting only of the mere
but upon the situation of the party (petitioner), and his power declarations of witnesses.
to bring his rights to an immediate investigation.
 The testimony thus perpetuated is not in itself conclusive
 The rules provide for either oral or written examination for proof, either of the existence of any right nor even of the facts
discovery or deposition and for perpetuation of testimony. If to which they relate, as it can be controverted at the trial in
the deposition is taken pending action, the interrogating party the same manner as though no perpetuation of testimony was
may normally select the mode of examination he prefers, but ever had.
in perpetuating testimony, the choice is apparently with the
court. Sec. 7. Depositions pending appeal. — If an appeal has been taken from a
judgment of the Regional Trial Court or before the taking of an appeal if
Sec. 5. Reference to court. — For the purpose of applying Rule 24 to the time therefor has not expired, the Regional Trial Court in which the
depositions for perpetuating testimony, each reference therein to the court judgment was rendered may allow the taking of depositions of witnesses
in which the action is pending shall be deemed to refer to the court in to perpetuate their testimony for use in the event of further proceedings in
which the petition for such deposition was filed. the said court. In such case the party who desires to perpetuate the
testimony may make a motion in the said Regional Trial Court for leave to
 Since in perpetuation of testimony there is no action pending take the depositions, upon the same notice and service thereof as if the
in court, the court in which the petition for perpetuation of action was pending therein. The motion shall show (a) the name and the
testimony has been filed may designate the officer before addresses of the persons to be examined and the substance of the
whom the perpetuation of testimony shall be taken upon oral testimony which he expects to elicit from each; and (b) the reason for
examination or written interrogatories. perpetuating their testimony. If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of justice, it may make an
Sec. 6. Use of deposition. — If a deposition to perpetuate testimony is order allowing the depositions to be taken, and thereupon the depositions
taken under this rule, or if, although not so taken, it would be admissible may be taken and used in the same manner and under the same
in evidence, it may be used in any action involving the same subject conditions as are prescribed in these rules for depositions taken in
matter subsequently brought in accordance with the provisions of actions pending in the Regional Trial Court. (7a)
Sections 4 and 5 of Rule 24.
The deposition referred to in this rule may be taken:
 The deposition to perpetuate testimony may be used in any
action involving the same subject matter subsequently 1) If an appeal has been taken from a judgment of a Regional
brought, and in the same manner as deposition taken pending Trial Court, or
action in accordance with R24 S4 and S5. 2) Before the taking of an appeal if the time therefor has not
expired

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regarding any matter that may be cognizable in any court of the
 The hearing on the motion for leave to perpetuate Philippines, may file a verified petition in the court of the place of the
testimony pending appeal or after judgment and residence of any expected adverse party. (1a, R134)
before the expiration of the time for taking an appeal
Venue of petition for depositions before action: court of the residence
is summary, similar to the hearing of any motion and
of any expected adverse party
would ordinarily be heard on affidavits.
Sec. 2. Contents of petition. — The petition shall be entitled in the
RULE 24
name of the petitioner and shall show: (a) that the petitioner expects to be
a party to an action in a court of the Philippines but is presently unable to
Depositions Before Action or Pending Appeal
bring it or cause it to be brought; (b) the subject matter of the expected
action and his interest therein; (c) the facts which he desires to establish
Before action Pending appeal by the proposed testimony and his reasons for desiring to perpetuate it;
How Instituted (d) the names or a description of the persons he expects will be adverse
Verified petition in court with Motion for leave to take parties and their addresses so far as known; and (e) the names and
jurisdiction over residence of deposition; Indicate substance of addresses of the persons to be examined and the substance of the
adverse party to perpetuate testimony and reason for testimony which he expects to elicit from each, and shall ask for an order
testimony. Indicate substance of perpetuating authorizing the petitioner to take the depositions of the persons to be
testimony and reason for examined named in the petition for the purpose of perpetuating their
perpetuating testimony. (2, R134)

General procedure for depositions before action: Contents of petition for deposition before action:
1) Entitled in the name of petitioner
1) Petition filed by a party who expects to be a party in an action
in the court of the residence of the expected adverse party 2) That the petitioner expects to be a party to an action in a
court of the Philippines but is presently unable to
2) Notice of the petition served on expected adverse party
a) Bring it or
3) Court serves notice of hearing, at least 20 days before, to
b) Cause it to be brought
a) Parties and
3) Subject matter of the expected action and his interest therein
b) Prospective deponents
4) Facts which he desires to establish by the proposed testimony
4) Court order and his reasons for desiring to perpetuate it
a) Designating or describing the persons whose deposition 5) Names or a description of the persons he expects will be
may be taken and adverse parties and their addresses so far as known
b) Specifying the subject matter of the examination and 6) Names and addresses of the persons to be examined and the
c) Specifying whether the depositions shall be taken upon substance of the testimony which he expects to elicit from
oral examination or written interrogatories. each

5) Deposition taken would be admissible in evidence, it may be 7) Ask for an order authorizing the petitioner to take the
used in any action involving the same subject matter depositions of the persons named to perpetuate their
subsequently brought testimony

Sec. 3. Notice and service. — The petitioner shall serve a notice upon
Section 1. Depositions before action; petition. — A person who each person named in the petition as an expected adverse party, together
desires to perpetuate his own testimony or that of another person with a copy of the petition, stating that the petitioner will apply to the

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court, at a time and place named therein, for the order described in the 2) Party moves for leave to take deposition pending appeal
petition. At least twenty (20) days before the date of the hearing, the court
shall cause notice thereof to be served on the parties and prospective 3) Motion shall state
deponents in the manner provided for service of summons. (3a, R134) a) Names and addresses of the persons to be examined
Sec. 4. Order and examination. — If the court is satisfied that the and the substance of the testimony which he expects
perpetuation of the testimony may prevent a failure or delay of justice, it to elicit from each; and
shall make an order designating or describing the persons whose b) Reason for perpetuating their testimony
deposition may be taken and specifying the subject matter of the
examination and whether the depositions shall be taken upon oral 4) Service of notice of hearing on the motion
examination or written interrogatories. The depositions may then be taken 5) Court finds that the perpetuation of the testimony is proper to
in accordance with Rule 23 before the hearing. (4a, R134) avoid a failure or delay of justice
Sec. 5. Reference to court. — For the purpose of applying Rule 23 to
6) Court order allowing the depositions to be taken and used as
depositions for perpetuating testimony, each reference therein to the court
in depositions pending actions
in which the action is pending shall be deemed to refer to the court in
which the petition for such deposition was filed. (5a, R134).
Sec. 6. Use of deposition. — If a deposition to perpetuate testimony is
taken under this Rule, or if, although not so taken, it would be admissible
in evidence, it may be used in any action involving the same subject
matter subsequently brought in accordance with the provisions of
sections 4 and 5 of Rule 23. (6a, R134)
Sec. 7. Depositions pending appeal. — If an appeal has been taken
from a judgment of a court, including the Court of Appeals in proper
cases, or before the taking of an appeal if the time therefor has not
expired, the court in which the judgment was rendered may allow the
taking of depositions of witnesses to perpetuate their testimony for use in
the event of further proceedings in the said court. In such case the party
who desires to perpetuate the testimony may make a motion in the said
court for leave to take the depositions, upon the same notice and service
thereof as if the action was pending therein. The motion shall state (a) the
names and addresses of the persons to be examined and the substance of
the testimony which he expects to elicit from each; and (b) the reason for
perpetuating their testimony. If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of justice, it may make an
order allowing the depositions to be taken, and thereupon the depositions
may be taken and used in the same manner and under the same
conditions as are prescribed in these Rules for depositions taken in
pending actions. (7a, R134)
General procedure for depositions pending appeal:
1) Either
a) Appeal has been taken from a judgment of a court
(including CA), or
b) Before the taking of an appeal if the appeal period has
not expired

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