Colegio de la Purisima Concepcion

School o Criminology
Review Class

5Review Notes
In
REVISED RULES ON EVIDENCE
By: Atty. Jimmy Tamayo Aguillon

Rule 128.General Provisions.

Section 1. Defined Evidence.

Is the means, sanctioned by these rules of ascertaining in a judicial proceedings the truth respecting the
matter of fact.
1. Nature of Rules on Evidence.It is fundamentally a procedural law (Bustos v. Lucero 81 Phil. 460) as
compared to Substantive Law.
2. Mode of or Manner of proving Factual Allegations.
Generally, the mode of or manner of proving factual allegations in a complaint, information or petition is
through witness who are placed in the witness stand to testify on what they are personally know of the case
and/ or identify the documents subject to the Rules On Evidence.(This is apply in Criminal and Civil case.
See the order of Examination, Rule 132, Sec. 4, R.C.)
3.Two (2) ways in which Evidence may be secured.:
By subpoena
a.)Subpoena ad testificandum, and
b.)Subpoena duces tecum (the witness is presented through coercive process);
by voluntarily appearance in court.

4.Facts in Dispute. It refers to the facts which the expected evidence will support to or be proven during
trial (Salia v,.Magtolis 204 SCRA 428) also refers to Ultimate facts that should be alleged in the complaint,
as the essential facts constituting the Plaintiff’s causes of action.
Note: Facts in dispute is similar to Ultimate facts.

5. Ultimate facts/Facts in Dispute (also known as Factum Probandum)- It refers to principal, determinate,
constitutive facts, upon the existence of which the entire cause of action rests (Tantuico v. Republic 204
SCRA 428).
6. Two Important questions to know what is Factum Probandum and what is Factum Probans.
1.What is the proposition desired to be proved?
2.What is the evidentiary facts to prove it?

7. Evidentiary facts are (also known as Factum Probans).

-Are those facts which are necessary for the determination of the ultimate facts.
-They are facts which furnish evidence of the existence of the facts in dispute(Tantuico v. Republic 204
SCRA 428).
8. Distinction between Ultimate facts (Factum Probandum) and Evidentiary facts (Factum Probans):
1. Factum Probandum (Ultimate facts) refers to the proposition which is to be establish,(or the issues to be
resolved)whereas,

##What is issue? It is the point of question at the conclusion of the pleading which one side affirms and the
other denies.

Factum Probans (Evidentiary facts) refers to the material facts that will establish the proposition (or the
evidences to support the issues);

##What is a fact? Is a thing done or existing. whether the thing was done or does exist, it is a question of
fact for the court.

2. Factum Probandum (Ultimate facts) is a hypothetical that one party affirms and the other denies which
the court has not yet committed in either direction;
Factum Probans (Evidentiary facts) is conceived of as existent, and is offered as such for the
consideration of the tribunal submitted as a reality to convince the tribunal that the former is a reality.

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9. Cause of Action- refers to a formal statement of the operative facts giving rise to such right.
10. Right of Action- is remedial right belonging to some person.
Rules of Evidence Liberal Construction:
Court litigation is primarily for search of truth and therefore there is a need for a liberal interpretation of the
rule to accomplish its intended purpose, to carry out its intent, and to promote justice.
1. Liberal Construction- means such equitable construction as will enlarge the letter of the rule to
accomplish its intended purpose to carry out its intent, to promote justice.
Technicality of the Rule:
When they are not an aid to justice it deserve scant consideration from the courts (Blanco v. Bernabe 63
Phil. 124). The rules of Court should not be interpreted to sacrifice substantial rights of a litigant at the altar
of technicalities to the consequent impairment of the principle of justice (Cabunila v. C.A. 80 SCRA 706).
Ex. The 3 day rule refers to the period of filing a motion to the court where the filing should not be within
3 days before its scheduled hearing.
1. Kinds of Major Evidences:
Generally evidence may be classified into three, from which a court or tribunal may properly acquire
knowledge for making its decision, namely:
Real (Object) evidence;
Testimonial evidence;
Circumstantial evidence.

1. Real (Object) evidence.

-It refers to the thing or fact or material, or corporate object which can be viewed or inspected by the court,
which a party may present an evidence. ex. firearm, bullet or shell.

2. Circumstantial Evidence. It is the evidence which indirectly proves a fact in issue(People v. Ramos 240
SCRA 1919).
-Is that evidence which proves a fact or series of facts other than the fact in issue, which, if proved, may
tend by inference to establish the fact in issue (People v. Constante 12 SCRA 653).
3.Testimonial Evidence. It refers to oral evidence or that which a witness testifies in court. It includes oral
or written evidence, such as documentary evidence, depositions and affidavits.
Other classifications of evidence (based on the issue/s involved):
1. Relevant Evidence-Evidence is relevant when it has such, a relation to the fact in issue to induce belief in
its existence or non-existence (Rule 128:3).
2. Competent Evidence- Evidence is competent when the same is not excluded by law in a particular case.
3. Admissible Evidence- is such a character that the court or judge is bound to receive it, that is, to allow it
to be introduced at trial (People Valdez 341 SCRA 25).
4. Material Evidence-It is that quality of evidence which tends to influence the trier of facts because of its
logical connection with the issue. (Black’s law dictionary 881, 5th ed.).
5. Direct Evidence-evidence which prove the facts in issue directly without any reasoning or inference
being drawn on the part of the fact-finder, as distinguish from circumstantial evidence which is that
evidence which indirectly proves a fact in issue.
6. Positive and Negative Evidence-Testimony is positive when the witness affirms that a fact did or did not
exist; it is Negative when he says that he did not see or know of the factual occurrence.
Positive evidence is entitled to greater weight (Tanada v. NLRC 252 SCRA 314).
7. Physical Evidence-It is mute but eloquent manifestation of truth which rates high in our hierarchy of
trustworthy evidence. Physical evidence speaks louder than words (People v. Batilan 314 SCRA 318).
8. Evidence Aliunde It is evidence other than the real or Physical evidence itself, or evidence from a
different source.
9. Rebuttal Evidence- the function of rebuttal evidence is to explain, repel, counteract, or disprove the
evidence of the adversary. Its office is to meet the new facts put in by the opponent in his case in reply and
it is necessary only because, on a pleading in denial, subordinate evidentiary fact have been put forward, or
because, on any issue whatever, facts discrediting the proponent’s witness have been offered. (Claverias v.
Quingco 207 SCRA 66).
10. Expert Evidence-It refers to the testimony of a witness who has made the subject upon which he gives
his opinion a matter of particular study, practice, or observation, and who must have particular and special
knowledge on the subject knowledge not usually acquired by an ordinary people.(People v Dekingco 189
SCRA 512).
11. Primary or Best Evidence- is that which affords the greatest certainty of the facts in question. Ex. In a
question of document the best evidence is the original document itself as the primary and best evidence.

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12. Secondary Evidence is that which is inferior to a primary evidence, and which upon its face shows that
better evidence exists. This si allowed when the original evidence are lost, destroyed, in the possession of
the adversed party, the original is in public records, the documents are voluminous of which the secondary
evidence are allowed to be introduced.
13. Conclusive Evidence-It is evidence which is incontrovertible. It may also refer to uncontradicted
evidence where the witness testifying on a certain events deserves credence and the events on which he
testifies fill the necessary requisites of probability and credibility (People v Belarmino 133 SCRA 462).
14. Cumulative Evidence (corroborative evidence) -It means additional or corroborative evidence to the
same point. That which goes to prove what has already been established by other evidence. (Black’s law
dictionary 343, 5th ed.).
15. Corroborative Evidence- evidence supplementary to that already given and tending to strengthen or
confirm it ( Black’s law dictionary 311., 5th ed.). It is additional evidence of a different character to the
same point (People v. Preciados 349 SCRA 311).
16. Self-serving Evidence-is not to be taken as evidence that serves one’s selfish interest. It is made by one
out of court at one time. Or a testimony not subjected to a crossed examination.
17. Hearsay Evidence-is evidence not of what the witness knows himself but of what he has heard from
others.
18. Judicial Evidence- includes all testimony given by witness in court, all documents produce and read by
the court, and all things personally examined by the court for the purpose of proof.
19. Extra-judicial Evidence- includes all evidentiary fact which are known to the court only by way of
inference from some form of judicial evidence.
20. Prima facie Evidence means evidence which, if unexplained or uncontradicted, is sufficient to sustain
the proposition it supports or to establish the facts alleged (Salong v. Cruz-Pano 134 SCRA438) and to
sustain a judgment in favor of the issue it supports.
Evidence and Proof distinguish:
1. Evidence Is the means, sanctioned by these rules of ascertaining in a judicial proceedings the truth
respecting the matter of fact, whereas,
2. Proof It is accurately confined to the effect of evidence.(although synonymous with evidence)
Hierarchy of Evidentiary Values:
The highest proof is 1.) Beyond reasonable doubt followed by 2.) Clear and Convincing evidence, 3.)
preponderance of evidence and 4.) substantial evidence (Manalo v. Roldan-Confessor 215 SCRA 808 and
ERB v. CA 357 SCRA 30).
1. Proof Beyond Reasonable Doubt- refers to that measure or degree or proof that which is logical and
inevitable result of the evidence on record, exclusive of any other consideration, of the moral certainty of
the guilt of the accused or that degree of proof which produces conviction in an unprejudiced mind.
2. Clear and Convincing Evidence- refers to that measure or degree or proof which will produce in the
mind of the trier of facts a firm belief or convictions as to the allegations sought to be established. It is
more than preponderance but not to the extent of such moral certainty as is required beyond reasonable
doubt in criminal case.
Note: What is between beyond reasonable doubt and preponderance of evidence is Clear and convincing
evidence (Manalo v. Roldan-Confessor 215 SCRA 808).
3. Preponderance of Evidence- refers to the degree of evidence required in civil cases, means that which is
“greater weight of evidence” or “greater weight of credible evidence” or more convincing than that which
is offered for opposition to it.
4. Substantial Evidence Means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion, and it absence is not shown by stressing that there is contrary evidence on record,
direct or circumstantial (Velazquez v. Nery 211 SCRA 28).

Sec.2. Rules of Evidence same in all courts.

Gen. Rule:The rules of evidence shall be the same in all courts and in all trials and hearings, in civil,
criminal, and special proceedings (Rule 128,Section 2).
Exception :Section 4 of Rule 1. of the Rules of Court. states that: “these rules shall not apply to
1.) Election case,
2.) Land registration,
3.) Naturalization and
4.) Insolvency proceedings, and
5.) other case not herein provided., except by analogy or in suppletory character and whenever
practicable and convenient.

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Strict rules are not applicable in claims for compensation and disability benefits” as well as in
administrative proceedings (Manila Electric co. v. NLRC 198 SCRA 682).

Section 3. Admissibility of evidence.

Evidence is admissible when it is relevant to the issue.
Admissible Evidence- is such a character that the court or judge is bound to receive it, that is, to allow it to
be introduced at trial (People Valdez 341 SCRA 25).
Section 4. Relevancy; Collateral Matters.
Evidence must have such relation to the fact in issue as to induce belief in its existence or non-existence.
2. Relevant evidence- Evidence is relevant when it has such, a relation to the fact in issue to induce belief
in its existence or non-existence (Rule 128:3).
3. When does Evidence is relevant?
Not only when it tends to prove of disprove a precise fact in issue but when it tends to establish a fact from
which existence or non existence of a fact in issue can be directly inferred (Black’s law dict. P. 1160, 5th
ed.).
Gen. Rule: Evidence on collateral matters shall not be allowed,
except when it tends in any reasonable degree to establish the probability or improbability of the fact in
issue.
Competency distinguish from Credibility
1. Competency is a question which arises before considering the evidence given by the witness.
-It denotes the personal qualification of the witness.

2. Credibility concerns the degree of credit to be given to his testimony.

-It denotes the veracity of witness’ testimony.
Note: Competency as a witness is one thing and it is another to be a credible witness so credible that the
court must accept what he says. In other words, an evidence to be admissible must be both be relevant and
competent.
Rule 129. WHAT NEED NOT BE PROVED
Section 1. Judicial Notice. when mandatory
1. Judicial Notice- defined as the cognizance of certain facts which judges may properly take and act on
without proof because they already know it. This is based upon obvious reasons of convenience and
expediency and operates to save trouble, expense and time which would be lost in establishing in the
ordinary course of receiving facts which do not admit contradiction.
Note: Judicial Notice is not dependent on the allegations of the pleadings. Matters of which judicial notice
may be taken need not be stated in the pleadings; The court will consider such matters although not pleaded
(American Jur. 2nd ed 57).
2. Requisites of Judicial Notice:
1.The matter must be of common and general knowledge;
2.The matter must be will and authoritative settled and not doubtful or uncertain;
3.The matter must be known to be within the limit of the jurisdiction of the court.

3. What is the object of Judicial Notice: The purpose of which is to save time, labor and expenses in
securing and introducing evidences on matters which are not ordinarily capable of dispute.
4. What are the two kinds of Judicial Notice?
1. Judicial Notice Mandatory it is mandatory in so far as those enumerated in Rule 129, Sec. 1 are
concerned.

2. Judicial Notice Discretionary it is Discretionary in so far as those enumerated in Rule 129, Sec. 2,
thereof on matters which are of public knowledge, or are capable of unquestionable demonstration or ought
to be known to judges because of their function.

6. Subjects of Mandatory Judicial notice:

The existence and territorial extent of states, their forms of government and symbol of nationality;
The law of nations;
The admiralty and maritime courts of the world and their seals;
The political constitution and history of the Philippines;
The official acts of the legislative, executive and judicial department of the Philippines;
Laws of nature;
Measure of time;

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The geographical divisions of and political history of the country (People v. Sevilleno 305 SCRA 519).

7. The following that do not need to be proved:

1. Judicial notice, mandatory
2. Judicial admissions
Section 2. Judicial Notice, when discretionary.
1. A court may take judicial notice of matters which are of:
1. public knowledge, or
2. are capable of unquestionable demonstration, or
3. ought to be known to judge because of their judicial functions.

2. What are the two kinds of Judicial Notice?

1. Judicial Notice Mandatory it is mandatory in so far as those enumerated in Rule 129, Sec. 1 are
concerned.

2. Judicial Notice Discretionary it is Discretionary in so far as those enumerated in Rule 129, Sec. 2,
thereof on matters which are of public knowledge, or are capable of unquestionable demonstration or ought
to be known to judges because of their function.

3. Coverage of Judicial Notice, when discretionary:

1. Matters which are of public knowledge;
Ex. Occurrence of typhoon, Local dialect used in a certain locality

2. Matters of capable of unquestionable demonstration;

Ex. Same in no.1 above

3. Matters that ought to be known to judge because of their judicial functions.

Ex. Records of case pending before it.
Personal knowledge of the judge is not to be considered as judicial notice.
Section 3. Judicial Notice. Hearing necessary.
During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take
judicial notice of any matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a
party, may take judicial notice of any matters and allow the parties to be heard thereon if such matters is
decisive of a material issue in the case.
1. At what stage may the court take judicial notice of a fact?
1. During trial;
2. After the trial and before judgment;
3. Appeal.
In all instances the court may act on its own initiative or on request of a party.

2. What is the purpose of hearing? A hearing may be necessary not for the presentation of evidence but to
afford the parties reasonable opportunity to present information relevant to the propriety of taking such
judicial notice.
Section 3 requires a hearing before the court may take judicial notice of the matter.
3. Judicial notice doctrine rest on the wisdom and discretion of the court.

4. Judicial knowledge and Judge’s personal knowledge

Section 4. Judicial Admission.(admission in the course of trial)

1. Gen. Rule: An admission verbal or written, made by a party in the course of the proceedings in the same
case does not require proof.
Exception: The admission may be contradicted only by showing that it was made through palpable mistake
or that no such admission was made.
2. TWO KINDS OF ADMISIONS:

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A.)Judicial Admission is defined as admission in the form of oral or written statement made by the parties
in the course of judicial proceedings. They include admissions in the pleadings, or in the course of a trial or
other proceedings.
3. Requisites of judicial admission:
1. It may be written (those made in the pleadings) or verbal (those made during trial);
2. It is made by a party in the course of the proceedings which may be in the form pleadings (complaint,
answer, reply, counter affidavit) motions, modes of discovery with request for admission, stipulation of
facts, statement made in the course of trial;
3. It is made in the same case and not in any other case.

Effect of Judicial Admission:

Gen. Rule: When admission is made is that it does not require proof and cannot be contradicted by the
party who made it
Except when he 1.) can show that the admission was made through palpable mistake or that 2.) no such
admission was made.
6. Judicial Admission take the form of evidence considering that it require no proof and a party is relieved
of the duty to prove facts admitted by the other party. Admission is conclusive against the party making
them nor can they, as a rule, be contradicted.
B.)Extra-Judicial Admission are those made out of court and requires proof in the same manner as any
other documents requires proof.
8. Examples of Counsel’s Entering into stipulation of facts (This is done usually during PreCon and Pre-
Trial Conference stage):
1. A lawyer has the general or implied authority to agree or stipulate upon the facts involved in a litigation
even without the prior knowledge or consent of his client ( Rodriguez v. Santos 55 Phil 721, Rule 30:20
RC) .
2. Like the admission made by the client in the pleading or in the course of the proceeding, is binding upon
the client ( Victoria v Victoria 93 Phil 15).
Rule 130. RULES OF ADMISSIBILITY
Admissible Evidence- is such a character that the court or judge is bound to receive it, that is, to allow it to
be introduced at trial (People Valdez 341 SCRA 25).
Relevant Evidence-Evidence is relevant when it has such, a relation to the fact in issue to induce belief in
its existence or non-existence (Rule 128:3).
A.) Object (Real) Evidence.
Section 1. Object as evidence
- are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may
exhibited to, examined or viewed by the court.

1. Three (3) sources of evidence from which court may make a decision:
1. Real( Object) or autoptic proference;
2. Circumstantial evidence, and
3.Testimonial evidence (Calde v. CA 233 SCRA 376 ).

a.) Real (Object).

-It refers to the thing or fact or material or corporate object which can be waived or inspected by the court,
which a party may present an evidence.
2. Rule on the admissibility of object evidence
-evidence that is addressed to the senses of the court may be exhibited to, or examined or viewed by the
court when they are relevant to the issue.

3. Object evidence is furnished by thing as opposed to testimonial evidence as furnished by human being.
The real (Object) evidence is speaks for itself and is the most trustworthy type of evidence.
Ex. Bullets, knife, jewels, etc. which is submitted before the court for the judge, thru his senses to perceive
facts about it.

Limitation as to presentation of Real (Object) evidence:

Reception of object evidence rests largely within the discretion of the trial judge. If the subject is offensive
to the senses and can be establish by other evidence, the same may be rejected. Likewise, if the evidences
are contrary to public policy, morals, decency, such as the exposure of one’s person, which is indecent or
shocking to the sensibilities.

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Real evidence and Physical or Documentary evidence distinguished:
5. Real or autoptic evidence is viewing the object by the court itself. The object, may, however, be
photographed or reproduced for instance, the nature and location of human injuries may be shown in
pictures or indicated in sketches of human form. These in turn may be presented in evidence, pursuant to
the rules, and the court may inspect and draw inference from them.

The objects photographed or the wounds sketched in a human form as testified to by the witness are
physical evidence, while the viewing thereof by the court is inspection. They generally prevail over the
testimonial evidence.
6. Document as Real or Object evidence depends on the purpose:
A document may be considered real or object evidence depending upon the purpose for which it is offered.
If the object is to examine the age, the signature thereon, the physical features or conditions of the
documents itself (Jungura v Borromeo 19 SCRA 656), the same is considered real or object evidence which
the court may view for such purpose.
a.) Document as Documentary evidence(Sec. 2).
If the document is presented to prove its content, it is documentary evidence (Rules of Court Rule 130:2)
b.) Document as Object evidence.
If the document is presented to prove its existence, it is object evidence
7. Fact in issue- means
(a) such fact which the form of the pleadings in any action, is affirmed on one side, and denied on the
other; or
(b) If there be no pleadings, or no issued is joined between the parties, all facts from which the existence,
non-existence, nature or extent of any right, liability or disability asserted or denied in any such cases
would by law follow.
B.) Documentary Evidence.
Section 2. Documentary Evidence.
Documents as evidence consist of writings or any material containing letters, words, numbers, figures,
symbols or other modes of written expression offered as proof of their content.

Document refers to any substance having any matter expressed or described upon it by marks capable of
being read.
1. BEST EVIDENCE RULE
(Primary Evidence Rule)

Section 3. Original Document must be produced; exceptions.(see also Sec.5)

Gen. Rule: When the subject of inquiry is the contents of a document, no evidence shall be admissible
other than the original document itself,

Except in the following cases(which allows introduction of secondary evidence)

When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part
of the offeror;(Sec.5)

When the original is in the custody or under the control of the party against whom the evidence is offered,
and the latter fails to produce it after reasonable notice; (original is in the custody or under the control of
the Adversed party) (Sec. 6)

When the original consist of numerous accounts or other documents which cannot be examined in court
without great loss of time and the fact sought to be established from them is only the general result of the
whole; and (Sec.7)

When the original is a public record in the custody of a public officer or is recorded in a public office.

2. What is the reason and purpose of the Best evidence Rule? The purpose of the rule requiring the
production of the best evidence is the prevention of fraud.

3. Application of the Best Evidence Rule:

Best evidence rule shall be applied only when the subject of inquiry is the contents of the documents itself.
Section 4. Original Document (What are deemed Original document).
(a) The original of a document is one the contents of which are the subject of inquiry;

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(b) When the document is in two or more copies executed at or about the same time, with identical
contents, all such copies are equally regarded as originals;
(c) When an entry is repeated in the regular course of business, one being copied from another at or near
the time of the transaction, all the entries are likewise equally regarded as originals.(successive copying)
Duplicate originals are admissible as evidence, as if they are originals.
The best evidence refers to that which the law or the rules consider as the best evidence to prove the fact in
dispute.
1. Competent evidence-is that which that every nature of the thing to be proven requires, as the production
of a writing where its contents are the subject of inquiry.
2. Collateral matters or Facts- are those matters or facts other than the matters or facts in issue. These
collateral matters or facts are usually circumstantial matters or facts from a combination of which, when
proved, the court must draw an inference or reason that may establish the fact in dispute.
3. Gen. Rule: Collateral matters or Facts Not admissible in evidence
except : when such collateral facts or matters tend in any reasonable degree to establish the probability or
improbability of the fact in issue that such collateral facts or matters may be admitted.
4. Conditions for its admissibility: such collateral matters or facts must be the natural, necessary or logical
connection in the ultimate fact in issue.
5. Kinds of admissibility:
1. Multiple admissibility;
2. Conditional admissibility;
3. Curative admissibility.

1. Multiple admissibility is one where the act which is admissible for one purpose is admitted for other
purpose;
Ex. Even if the confession of the accused may not be competent as against his co-accused because it is
hearsay to the latter, or to prove conspiracy between them without the conspiracy being established by
other evidence, the same is nevertheless admissible as evidence of the declarant’s owned guilt, and should
be admitted as such.

2. Conditional admissibility may happen that some facts may be admissible when they are presented but
may be relevant only because they have some connections with other facts not yet presented. Such facts
may be admitted conditionally.
Ex. The court may admit conditionally the confession of the co-accused to prove conspiracy provided that
the prosecution should assure that it will present other evidence that such confession has connection
therewith.

3. Curative admissibility- may happen that one may offer evidence which is inadmissible but which is
admitted because their is no objection from the opposite party. The latter is not justified in introducing a
reply to the same kind of evidence, if properly objected to, unless it is needed to erase the unfavorable
inference which might otherwise have been caused from the originals evidence.

Section 8. Party who calls for document not bound to offer it as evidence.
Notwithstanding the fact that a party has called for the production and inspection of a document, he is not
obliged to offer it as evidence, even if he has marked the document as exhibit.

Marking the document is not tantamount to offer of document in evidence. No unfavorable inference may
be drawn from his refusal or failure to offer it in evidence, as the same is available to the other party, who
may present it as his own evidence if he so desires.

3. PAROL EVIDENCE
Section 9. Evidence of written agreement.
When the terms of an agreement have been reduced to writing, it is considered as containing all the terms
agreed upon and there can be, as between the parties and their successors in interest, no evidence of such
terms other than the contents of the agreement.

However, a party may present evidence to modify, explain or add to the terms of the written agreement if
he puts in issue in his pleading:

(a.) An intrinsic ambiguity, mistake or imperfection in the written agreement;

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(b.) The failure of the written agreement to express the true intent and agreement of the parties thereto;

(c.) The validity of written agreement; or

(d.)The existence of other terms agreed to by the parties or their successors in interest after the execution of
the written agreement.

The term “Agreement” includes wills.

Parol Evidence rule: As a general rule. when an agreement is in writing, it is presumed that all the terms
and conditions agreed upon are written down in the said agreement and hence, no other evidence can be
presented to modify, explain or add to such terms and conditions.
Purpose: It forbids any addition to or contradiction of the terms of a written instrument by testimony
purporting to show that other different terms were orally agreed upon by the parties.
Also it removes the possibility of perjury which would be afforded if parol

Parole Evidence is evidence aliunde, whether oral or written which is intended or tends to vary or
contradict a complete and enforceable agreement embodied in a document.

Reason behind the Rule:

The writing shall remain the best evidence of the understanding of the parties, even though, through defects
of forms or by reason of some positive provision of law. It is designed to give certainty to transaction
which has been reduced to writing by protecting the parties against the double veracity of interest, and the
uncertain memory of disinterested witness.

General Rule:
1. It seeks to preserve what the parties have reduced to writing and prohibits evidence aliunde or oral, or
add stipulations to the written agreement (Gaw v. IAC, 220 SCRA 405).
2. Any oral evidence of an agreement should be excluded when the existing agreement is already in
writing (Congregation of the Religious of the Virgin Mary v. CA, 291 SCRA 385).
3. If the agreement is in writing, whatever not found in the writing is understood to have been waived and
abandoned (CKH v. CA, 272 SCRA 333).

The written agreement need not be in the form of public document. It need not be in any form or be signed
by both parties, which are not subject to be varied or contradicted by parol or extrinsic evidence (Inciong,
Jr. v. CA, 257 SCRA 578 ).

Exception to Parol Evidence Rule (meaning a party may present evidence to modify, explain or add the
terms of written agreement.)
1.) If he puts in issue is his pleading an intrinsic ambiguity, mistake or imperfection in the written
agreement;
2.) If he puts in issue in his pleading the failure of the written agreement to express the true intent and
agreement of the parties thereto;
3.) If he puts in issue in his pleading the validity of the written agreement; or
4.) If he puts in issue in his pleading the existence of other terms agreed to by the parties or their successors
in interest after the execution of the written agreement. (CHK v. CA 272SCRA 333).

Parol Evidence is not applicable

1. Parol evidence is not applicable where the document does not contain the terms of the agreement, like
receipt of money, in which case Parol evidence is admissible. A receipt is a written acknowledgment
handed by one party to the other, of the manual delivery of money or other personally and the same falls
outside the rule. It is not intended to be an exclusive memorial (Cruz v. CA 192 SCRA 209).

2. Parol evidence is not applicable when the contract is clear or unambiguous.

3. Document is not a contract embodying contractual obligations.

Two (2) Kinds of Ambiguity:

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1. Intrinsic or Latent Ambiguity takes place when the writing admits two or more meanings, or when it is
understood in more than one way, or refers to two or more things at the same time.(RCBC v. IAC 320
SCRA 279). In otherwords the writing on its face appears clear and unambiguous but there is some
collateral matter which makes the meaning uncertain.

Effect of Parol evidence to Intrinsic or Latent Ambiguity

Parol evidence is allowed in intrinsic ambiguity.
The court may construe which is the actual intent of the parties(Manila Jockey Club v. Games and
Amusement 107 Phil 151).

Example:
1. Where an instrument contains a reference to a particular person or thing, and is thus, apparently clear, it
is shown by extrinsic evidence that there are two or more persons or things to whom or to which the
description might properly apply.

2.When a person, by written instrument sells or contract to sell a certain number of articles more than the
number mentioned, there arises latent ambiguity.

2. Extrinsic or Patent Ambiguity takes place when the documents, on its face, is so unintelligible and the
words used so defective that is totally fails to express its meaning (Demafiles v. COMELEC 21 SCRA
1462) .

Example:
The omission of the sum to be paid in an obligation to pay money is a patent ambiguity, which cannot be
explain by parol, but the payee must resort to the original contract, treating the note as nullity.

Effect of Parol evidence to Extrinsic or Patent ambiguity

Parol evidence is forbidden in Extrinsic ambiguity or Patent ambiguity;
The court is precluded from assuming and consequently from supplying a meaning thereto (Manila Jockey
Club v. Games and Amusement 107 Phil 151).

Distinction between Parol Evidence rule (Section 5) to Best Evidence Rule (Section 3).
In Parol Evidence rule:
The first prohibits varying the terms of the writing;
The first is a rule of Substantive law (materiality) rather than evidence;
Where a copy of a document is offered to prove terms of a writing the parol evidence rule cannot be
invoked.

In Best Evidence Rule

1. The second prohibits t e introduction of inferior evidence where better evidence is available;
2. The second goes into the form in which evidence of a document is introduced to the court;
3. The best evidence rule applies to all kinds of writings.

Evidence Aliunde It is evidence other than the real or Physical evidence itself, or evidence from a different
source.
Parole Evidence is evidence aliunde, whether oral or written which is intended or tends to vary or
contradict a complete and enforceable agreement embodied in a document.

C. TESTIMONIAL EVIDENCE
QUALIFICATION OF WITNESSES

Section 20.Witnesses, their qualifications

-Except a provided in the next succeeding section, all persons who can perceive, and perceiving, can make
known their perception to others, may be witness.
1.Religious belief;
2.political belief,
3.interest in the outcome of the case, or
4.conviction of a crime unless otherwise provided by law, shall not be a ground for disqualification.

10
Who may be a witness:
As a rule all persons who can perceive, and perceiving, can make known their perception to others, may be
witness, except the law or rule provides otherwise.

Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise
provided by law, shall not be a ground for disqualification.

The phrase “conviction of a crime” and “unless otherwise provided by law “refers to cases where the law
disqualifies a person to be a witness on account of conviction of a certain crimes.

Ex. Convicted for Falsification of a document, perjury, false testimony may be disqualified from being a
witness to a will under Art. 821 C.C. (People v. Umali 193 SCRA 493).

Witness- is a person whose statement and declaration under oath are made on an oral examination, or by
deposition or affidavit. It is also used in a legal sense to describe a person called to be present at some
transaction so as to be able to attest to its having taken place.

Qualifications of a person to serve as witness:

1. He must competent to perceive;
2. He must be competent to make known his perception to others.

Competency deals entirely with legal capacity, for the testimony of witness may be unworthy of the belief
and standing and is insufficient and yet receivable, if the witness has legal capacity to testify.

Perceive means to obtain knowledge through sight, hearing, touch, taste, or smell, to grasp mentally;
comprehend.

Section 21. Disqualification by reason of mental incapacity or immaturity-

(a.) Those whose mental condition, at the time of their production for examination, is such that they are
incapable of intelligently making known their perception to others.

(b.) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting
which they are examined and of relating them truthfully.

Totally or Absolutely disqualified to become a witness:

Mentally incapable persons;
Mentally immatured children.

1. Mentally incapable persons refers to those whose mental condition at the time of their production for
examination is such that they are incapable of making known their perception to others.
Ex. Mentally retardate person.

2. Mentally immatured children refers to children whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are examined and incapable of relating them
truthfully.
Ex. A 2 year old child who is supposedly incapable of making known his perception to others.

Insanity is a manifestation in language or conduct of disease or defect of the brain, or a more or less
permanently diseased or disorder condition of the mentality, functional or organic, and characterized by
perversion, inhibition, or disordered function of the sensory or of the intellectual faculties, or by impaired
or disordered volition.

Under Art. 12 of the RPC insane person must be deprived completely of reason or discernment of freedom
of the will at the time of committing the crime. Thus, making him not criminally liable if his unlawful act
is the product of a mental diseases or a mental defect.(Peole v. Ambal 100 SCRA 325)

Accused may testify but can not be compelled to do so.

Under the constitution no person shall be compelled to be a witness against himself but he can testify in his
favor and be subjected to crossed examination of the adversed party.

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Accused right against self incrimination:
This right can only be invoked against Physical or moral compulsion to extort communication from the
accused.

However, the accused can be subject to physical examination and the same is not violative of his
constitutional right against self incrimination, such as:
1. He may be required to take part in a police line up;
2. To remove his garments;
3. To put on a pair of pants, shoes pr garments;
4. Photographing;
5. Fingerprinting;
6. Paraffin-testing; subjecting the accuse to ultra violet ray examination to determine the presence of ultra
violate powder(People v. Codilla 224 SCRA 104 and People v. Tranca 235 SCRA 455).
RULE ON EXAMINATION OF A CHILD WITNESS

Sec. 4. Child witness is any person who at the time of giving testimony is below the age of 18 years, but is
found to by the court as unable to fully take care of himself of protect himself from abuses becaue of
physical or mental disability or condition.

Sec. 6. Competency-Every child is presumed qualified to be a witness, however the court shall conduct a
competency examination of a child, motu proprio or on motion of a party when it

Sec. 8. Examination of a child witness- examination of a child witness presented in a hearing or any
proceeding shall be done in open court. Unless the witness is incapacitated to speak or the question call for
a different mode of answer, the answer of the a witness shall be given orally.

The requirements then of a child competency as a witness are :

1.Capacity of observation;
2.Capacity of recollection;
3.Capacity of communication.(Dulla v. CA 326 SCRA 32).

Section 23. Disqualification by reason of Death or Insanity of adverse party. Rule on survivor’s
disqualification:
Parties or assignor of parties to the case, or persons in whose behalf a case is prosecuted, against an
executor or administrator or other representative of a deceased person, or against a person of unsound
mind, upon a claim or demand against the estate of such deceased person or against such person of unsound
mind, cannot testify as to any other matter of fact occurring before the death of such deceased person or
before such person became of unsound mind (Guerrero v. St’s Claire’s Realty 124 SCRA 553).

Purpose of Disqualification under Dead man rule: Is to guard against the temptation to give false testimony
in regard to the transaction on the part of the surviving party and further to put the parties to a suit upon
terms of equality in regard to the opportunity of giving testimony. It is designed to close the lips of the
party defendant, in order to remove from the surviving party the temptation to do falsehood and the
possibility of fictitious claims against the deceased. (Goni v. CA 144 SCRA 222).

Section 22. Disqualification by reason of marriage.

Note: (compare Section 24, par 1 on Marital Privilege communication)

Section 24.(1) The husband or the wife, during or after the marriage, cannot be examined without the
consent of the other as to communication received in confidence by one from the other during the marriage
except in a civil case filed by one against the other, or in criminal case for a crime committed b one against
the other or the latter’s direct descendant or ascendants (Ortiz v. Arambulo 8 Phil 98).

1. Rule on Marital Disqualification: During their marriage, neither the husband nor the wife may testify for
or against the other without the consent of the affected spouse.

Exception to Marital Disqualification (the other spouse may testify against the other even without the
consent of the latter):
in a civil case by one against the other, or
#Civil case: a case filed by one spouse against the other spouse as plaintiff or respondent.

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in a criminal case for a crime committed by one against the other or the latter’s direct descendant or
ascendant.
Criminal case: any crime committed by one against the other or the latter’s descendant or ascendant, this
covers all case which directly attacks and vitally impairs the conjugal relation (People v. Francisco 78 Phil
694 ).

Ex. Accusing the husband of killing his son (US v. Antipolo 37 Phil726);
In this case the security and confidence of private life between them is rendered empty and the reason for
the rule have ceased to exist (People v. Francisco 78 Phil 694).

Reason for disqualification of spouses to testify against each other:

there is identity of interest between the husband and wife;
If one were to testify for or against the other, there is danger of perjury;
The policy of the law is to guard the security and confidences of private life, even a the risk of an
occasional failure of justice and to prevent domestic disunion;
4.Where there is want of domestic tranquility there is danger or punishing one spouse through hostile
testimony of the other (People v. Francisco 78 Phil 694).

Section 24. Disqualification by reason of Privileged Communication.

The following persons cannot testify as to matters learned in confidence in the following cases: Note:
(compare Section 22 on Marital Disqualification, During their marriage)

Marital Privilege communication

(a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the
other as to communication received in confidence by one from the other during the marriage except in a
civil case filed by one against the other, or in criminal case for a crime committed b one against the other or
the latter’s direct descendant or ascendants (Ortiz v. Arambulo 8 Phil 98).

Requisites (For Privilege communication):

1.The communications made between husband and wife must be during the existence of a Valid marital
relation (marriage must be valid. Common law marriage the does covered by the rule);
2. It must be confidential in nature.

Ex. Communication which pass between them when they are alone. Or made confidential, or induced by
the marital relation.

Ordinary conversation between the husband and wife on matters of business, not confidential in their nature
or induce by marital relation are not privilege and not covered by prohibition.

Privilege communication comes into the hands of third person:

Privilege communication comes into the hands of third person, whether legal or not, ceases to be privilege
and that third person, if competent, may testify in court(People v. Carlos 47 Phil 626).

Rule on Attorney-Client Relationship:

(b.) An attorney cannot, without the consent of is client, be examined as to any communication made by the
client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor
can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his
employer, concerning any fact the knowledge of which has been acquired in such capacity.

Requisites for Attorney-client relationship:

1. There must be an Attorney-client relationship;
2. There must be a communication made by the client to his attorney;
3. The communication must have been made confidential;
4. Such communication must have been made in the course of professional employment.

Purpose: is to protect the client from disclosure by himself or by attorney, unless the rotection is waived
(Brown v. St. Paul City R. Co. 62 NW2d 688, 44 ALR2d535).

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Revised Penal Code provides as to Attorney-Client Relationship:
Art. 209- A penalty of prision Correccional in it minimum period or a fine ranging from P200 to P1000, or
both shall be imposed upon any attorney who maliciously breached of professional duty or inexcusable
negligence or ignorance, shall prejudice his client.

Persons entitled to invoke Privilege:

1. Attorney;
2. Client
3. Secretary;
4. Interpreter;
4. Messenger; or any agent or any persons who acquired and heard the communication between attorney
client in confidential communication (San Francisco v. Superior Court of San Francisco 37 Cal. 2d. 227;
US v. Kovel 296 F2d 918).

Exception to Attorney-Client Relationship:

A lawyer shall not reveal the confidences or secrets of his clients; except:

1. When authorized by a client after acquainting with him the consequences of the disclosure;
2. When required by law;
3. When necessary to collect his fees or to defend himself, his employees or associates or by judicial action
(Rule 20.01-Code of Prof. Responsibility)
4. Commission of contemplated crime(future crime) (People v. Sandiganbayan 275 SCRA505);
5. Fraud already committed is privilege except intended or Perpetuation of fraud.(Clark v. US 28, 9 US 1,
77 L. 993).

Rule on Physician-Patient Privilege:

(c.) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice or treatment given by him or nay information which
he may have acquired in attending to such patient in a professional capacity, which information was
necessary to enable him to act in that capacity, and which would blacken the reputation of the patient.

Requisites for Physician-Patient Privilege (the privilege is only to the civil case and not to criminal case) :
1. The action in which the advice or treatment given or any information is to be used is a civil case;
2. The relation of physician and patient existed between the person claiming the privilege or his legal
representative and the physician;
3. The advice or treatment given by him or any information was acquired by the physician while
professionally attending the patient;
4. The information was necessary for the performance of his professional duty;
5. The disclosure of the information would tend to blacken the reputation of the patient(Gonzales v. CA,
298 SCRA 322).

The Physician-patient privilege continues even after the death:

The Physician-patient privilege communication continues even after the death of the patient. If death
remove the seal of secrecy, from communications and disclosure which a patient should make to his
physician after one has gone to his grave, the living are not permitted to impair his name and disgrace his
memory by dragging to light communication and disclosure made under the seal of the statue (Gonzales v.
CA 298 SCRA 322 ).

Rule on Priest-Confessant Privilege :

(d.) A minister or priest cannot, without the consent of the person making the confession, be examined as to
any confession made to or a advice given by him in his professional character in the course of the discipline
enjoined by the church to which the minister or priest belongs.

Requisites for Priest-Confessant Privilege:

1. The minister or priest must be so according to the sect or denomination to which he belongs;
2. The communication must made to him in his professional capacity or character;

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3. It is made in the course of discipline enjoined by the rules or practices of his sect or denomination (58
AM. Jur.at 297).

Rule on Privilege Communication to Public Officer:

(e.) A public officer cannot be examined during his term of office or afterwards, as to communication made
to him in official confidence, when the court finds that the public interest would suffer by the disclosure.

Requisites on Privilege Communication to Public Officer:

1. Communication to public officer must be made in official confidence. But if the communication is made
in the presence of a third person the same is not privilege.
2. Communication to public officer must relate to affairs of the state, as state secrets;
3. Public interest will suffer by the disclosure of the communication made to public officer (Banco Filipino
v. Monetary Board 142 SCRA 523).

Other laws upholding secrecy of communications to public officials:

1. Art. 229. RPC. Penalizing any public officials who shall reveal a secret acquired by reason of is office;
2. Art 230. RPC. Penalizing any public officials who shall reveal a secret coming from private individual
acquired by reason of is office;
3. R.A. 6713, Sec. 7 (e). Prohibiting a public employee or officer who divulge any confidential or
classified information acquired by reason of is office;

Disclosure of Bank deposits prohibited:

Gen.:Under R.A. 1405, the banks secrecy law prohibits the disclosure or examination of bank deposits,
except:
Upon written permission from the depositor;
In impeachment case;
Upon order of competent court;
The money deposited is the subject of litigation;
Incase of unexplained wealth (Banco Filipino Savings and Mortgage Bank v. Purisima 161 SCRA 576).
The non disclosure does not apply to Garnishment to insure the satisfaction of judgment (China Banking
Corp. v. Ortega 49 SCRA 355; PCIB v. CA 193 SCRA 452);
The AMLC shall have the power to inquire into bank deposit after an order is granted by the court applied
to it (R.A.9160:11).

Privilege communication to Publisher, Editor, or Reporter:

The publisher, editor, reporter, columnist or duly accredited reporter of any newspaper magazines or
periodical of general circulation cannot be compelled to reveal the source of any newspaper report or
information appearing in said publication which was related in confidence to such publisher unless the
court or House or committee of congress finds that such revelation is demanded by the security of the state
(R.A. 53 as amended by R.A. 1477) .

Constitutional right to information: The right of the people to information

Art. 3, Sec. 7 of the 1987 Constitution provides for the right of the people to information.
The constitutional guarantee to information on matters of public concern is not absolute. It does not open
every door to any and all information. Access to officials records, papers, etc. are subject to limitations as
may be provided by law. The law may therefore exempt certain types of information from public scrutiny,
such as:
those affecting national security. It follows that every case the availability of access to a particular public
record must be circumscribed by the nature of the information sought.
(1) being a public concern or one that involves public interest, and
(2) Not being exempt by law from the operation of the constitutional prohibition.

Statutory Privilege to withhold identity:

Government Privilege to withhold the identity of persons who furnish information of violation of laws
(Almonte v. Vasquez 244 SCRA 286 (1995 case).

C. TESTIMONIAL EVIDENCE
2. TESTIMONIAL PRIVILEGE

Section 25. Parental and filial privilege.

15
No person shall be compelled to testify against his parents, other direct ascendants, children or other direct
descendants.

Parental Privilege-a privilege granted to the parents and other direct ascendants wherein they cannot b e
compelled to testify against their children and other direct ascendants.

Filial Privilege-a privilege granted to the children and other descendants wherein they cannot be compelled
to testify against their parents and other directs ascendants.

C. TESTIMONIAL EVIDENCE
3. ADMISSIONS AND CONFESSIONS

Section 26. Admission of a party.

The act, declaration or omission of a party as to a relevant fact may be given in evidence against him.

Rule on Admission of a party:

The act, declaration or omission of a party as to a relevant fact may be given in evidence against him.
This rule refers to admission against interest and is based upon the presumption that no man would declare
anything against himself, unless such declaration is true (Feria v. CA 325 SCRA525).
Act, declaration or omission of a party as to relevant fact may be given in evidence against him, as an
exception to hearsay rule (Estrada v. Desierto 356 SCRA 108, 2001 case.).

Requisites on Admission of a party to be admitted as evidence:

1. It must relate to a relevant fact;
2. It must be offered in evidence against a party making it.

Admission- as a voluntary acknowledgment of some fact in issue which does not involved
acknowledgment of guilt.
-or any statement of fact made by a party against his interest or unfavorable to the conclusion for which he
contends or is inconsistent with the facts alleged by him (31 CJS 1022).

Confession is a categorical acknowledgment of guilt made by an accused in a criminal case without nay
exculpatory statement or explanation (US v. Tolosa 5 Phil. 616).

Distinguish Admission to confession:

1. Admission is an acknowledgment of some fact or circumstances which tend to establish the ultimate fact
in issue in a civil case or guilt of the accused.
Confession is an express acknowledgment of guilt.

2. Admission may tacit or express, verbal or written, direct or indirect;

Confession must be express;

3. Admission maybe made by a third person and in certain case admissible against the party;
Confession can be made only by the party himself and in some instance admissible against co-accused if
made as circumstantial evidence.

Classification of admission:
Judicial-those admission made on the record in connection with the judicial proceeding in which it is
offered.
Extra-judicial admission- those made elsewhere, irrespective of time, place and to whom it is made.

Section 27. Offer of Compromise, not acceptable-

Compromise- is a contract whereby the parties, by making reciprocal concession, avoid litigation or put an
end to one already commenced.

Offer of compromise-is an offer by one party to the other for the purpose of avoiding litigation or putting
an end to one already commenced.

1.In civil case, an offer of compromise is not an admission of any liability, and is not admission in
evidence against the offeror.

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2.In criminal case, except those involving quasi-offenses (Criminal negligent) or those allowed by law to be
compromised, an offer of compromise by the accused may be received in evidence as an implied admission
of guilt.

An offer to pay or the payment of medical, hospital.

An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not
admissible in evidence as a proof of civil or criminal liability for the injured party.

A plea of guilty later withdrawn, or

an unaccepted offer of plea of guilty to lesser offense, is not admissible in evidence against the accused
who made the plea or offer.

A plea of forgiveness:
Note: Indicative of Guilt: A plea of forgiveness may be considered analogous to an attempt to compromise
a criminal case.
No one would asked forgiveness unless he had committed some wrong (People v. De Guzman 265 SCRA
228).
Also the accused pleaded forgiveness to the widow of a victim and attempted to give money (People v.
Libed 14SCRA 410).

Instances in Criminal case where compromise is not considered as an implied admission:

1. In quasi-offenses (criminal negligence) where their is no criminal intent (Culpa criminal such as reckless
imprudence under Art. 365 RPC;
2. In criminal case allowed by law to be compromised such as
a.)Violation of NIRC; b.) Minor offenses whose penalties do not exceed 1 year (Sec.7(c) (LGC;
3. Rape and Marital rape, where the accused marry the victim and the wife forgives her husband. (Art.
266-C RPC);Note: however, that the offer to marry, generally speaking is an admission of guilt (People v.
Bulos GR. No.123542 June 26, 2001)
4. Violation of B.P 22. the arrangement between the obligor and the obligee or creditor may novate the
obligations arising from the dishonor of the check and convert the liability of the drawer into a civil
liability;

Other Instances where offer of Plea is not admissible in evidence against the accused who made the offer or
plea:
1. A plea of guilty later withdrawn by the accused;
2. Offer by the accused to plead guilty to lesser offense but unaccepted by the prosecution;
3. Offer to pay or payment of medical or hospital or other expenses occasioned by injury, provided such
offer or payment does not imposed any condition that the victim shall desist from prosecuting the offender.

Reason for allowing compromise in civil cases:

Since the law favors settlement of controversies out of court, a person is entitled to endeavor to buy his
peace without danger of being prejudiced in case his efforts should fail.

Effect of plea of guilty later withdrawn, or an unaccepted offer of plea of guilty

= is inadmissible in evidence against the accused who made the plea or offer.

Under Rule 116, Sec. 2 of Rules of Court authorizing plea bargaining, at the Arraignment, during Pre-Trial
conference, is not admissible in evidence against the accused who made the plea or offer.

Rule 116, Sec. 5 of the same rule, provides that, at any time before the judgment of conviction a plea of
guilty may be withdrawn and be substituted to a plea of not guilty

Section 28. Admission by third party

The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as
hereinafter provided. (This is a maxim, first part: res inter alios acta alberi nocre non debt): (1st PART
OF THE RULE)

17
Notes:
Section 28 is the first part of the rule while Section 34 is the second part of the rule.

The maxim literally means: The things transacted between strangers do not injure those who are not parties
to them. On principle of good faith and mutual convenience, Man’s owns act are binding upon himself and
are evidence against him and not against the third person (People v. Cui 314 SCRA 153).

Presumption: It is presumed that What is done by agent is done by Principal and within the scope of an
authority, and the same admission is admissible in evidence against the corporation (Prime White Cement
v. IAC 220 SCRA 103).

Section 29. Admission by co-partner or agent.(as an exception to Res Enter Alios Acta rule)
The act or declaration of a 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 against such party after the partnership or
agency is shown by the evidence other than such act or declaration. The same rule applies to the act or
declaration of a joint owner, joint debtor or other jointly interested with the party.

Requisites of the rule:

1. The partnership or agency is proved by evidence other than the act or declaration;
2. The act or declaration of a party is within the scope of his authority;
3. He made the act or declaration during the existence of partnership or agency.

Presumption:
It is presumed that the partner or agent in his transactions or dealings with the third parties is acting within
the scope of the partnership or agency and the burden lies with the co-partner against whom the act or
declaration is presented in evidence. What is done by agent is done by Principal and within the scope of an
authority, and the same admission is admissible in evidence against the corporation (Prime White Cement
v. IAC 220 SCRA 103),

Section 30. Admission by co-conspirator. (as an exception to Res Enter Alios Acta rule).
The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in
evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or
declaration.

Note: this provision refers to the extra judicial act or declaration. It does not applies to the act or
declaration made during the testimony in the court’s witness stand where the other party has the chance to
cross examine the declarant (People v. Dacanay 92 Phil 872).

Requisites before Admission by co-conspirator may be given in evidence against a co-conspirator :

1.That the conspiracy be first proved by evidence other than the admission itself;
2.That the admission relates to the common object of conspiracy;
3.That the said act or declaration must be made during the existence of the conspiracy, not before or
after(People v. Cui 314 SCRA 153).

General Rule: An extra judicial confession may be given in evidence against the confessant but not against
his co-accused as they are deprived of the opportunity to cross examine him, unless the requisites has been
complied with, except that the same is used as circumstantial evidence against the co-accused to show the
probability of the latter’s participation in the commission of the crime as well as corroborative evidence
against him (People v. Sabalones 294 SCRA 751).

Interlocking confessions (when there are several confessions had been made by several persons):
This refers to when there are several confessions had been made by several persons charged with the same
offense and without the possibility of collusion among them, the fact that the statements are in all respects
identical is confirmatory of the confessions of the co-defendants and are admissible against other persons
implicated therein(People v. De la Torre 327 SCRA 511).

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Section 32. Admission by silence(as an exception to Res Enter Alios Acta rule).
An act or declaration made in the presence and within the hearing or observation of party who does or says
nothing when the act or declaration is such as naturally to call for action or comment if not true, and when
proper and possible for him to do so, may be given in evidenced against him.

Rule on admission by silence:

An act or declaration made in the presence and within the hearing or observation of party who does or says
nothing when the act or declaration is such as naturally to call for action or comment if not true, and when
proper and possible for him to do so, may be given in evidenced against him.

Requisites of Admission by silence:

An act or declaration is made;
It is made in the presence and within hearing distance of a party;
The act or declaration is made as naturally to call for action or comment from said party, if not true;
Said party does or says nothing even though proper and possible for him to do so;
The act or declaration may be given against said party.

In criminal case the basis of this rule is that the natural reaction of one action of the commission of a crime
or of the implication therein is to deny the accusation if it is unjust or unfounded.

Where the accused is under arrest or in custody, the better view is to consider the circumstances of the case
and decide admissibility of his silence accordingly.
An innocent person will at once naturally and emphatically repel an accusation of a crime, as a matter of
self preservation and self defense (People v. Pilones 84 SCRA 167).

In rape case: Failure of the rape victim to rebut a defense that she was a sweetheart of the rapist and two
times they have sexual intercourse in a house of the accused, is equivalent to admission by silence (People
v,. Atienza 86 Phil 576).

Section 33. Confession

-The declaration of an accused acknowledging his guilt of the offenses charge, or of nay offense necessarily
included therein, may be given in evidence against him.

Confession defined as a declaration made voluntarily and without compulsion or inducement by a person,
stating or acknowledging that he has committed or participated in the commission of the crime (People v.
Fabro, 277 SCRA 19).

Rule of confession- The declaration of an accused acknowledging his guilt of the offenses charged, or of
any offense necessarily included therein, may be given in evidence against him.

Classes of Confession:
1. Judicial confession
2. Extra-Judicial Confession.

1. Judicial confession a confession made before a committing magistrate or in a court in the due course of
legal proceedings.

2. Extra-Judicial Confession is made elsewhere than before a magistrate or in court

In criminal case there is difference between confession and admission

A.) Confession is an acknowledgment in express terms, by a party, of his guilt of the crime charged.

B.) Admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending,
in connection with proof of other facts to prove his guilt.

An admission or confession of guilt by the accused may be made before or during custodial investigation

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A confession made (before the accused is placed under custodial investigation) need not comply with the
constitutional requirement for the admission in evidence given in the course of custodial investigation to be
admissible in evidence. As the declarant is not under custodial investigation whatever admission or
confession he made is admissible under Section 33, Rule 130 so long as the same is freely and voluntarily
given(People v. Salonga GR No. 131131 June 21, 2001).

Accordingly, the constitutional requirements is only applied for one under custodial investigation. An
admission or confession not assisted by counsel is admissible in evidence if the declarant is not under
custodial investigation, like admitted before a Brgy. Captain (People v. Dano 339 SCRA 515).or if the same
is made freely and voluntarily.

The accused charged with rape with Homicide, acknowledged the crime before the Brgy. Captain after the
latter and the searching party found the body of the deceased and asked for forgiveness. The declaration
acknowledging his guilt is admissible under Section 33, Rule 130 as well as under Section 42, rule 130 as
part of res gestae.

Requisites to admit evidence as part of Res Gestae:

1. That the principal act, the res gestae, be a startling occurrence, in the case the discovery of the body of
the victim;
2. The statements were made before the declarant had the time to contrive or devise a falsehood, like asked
for forgiveness immediately after the body was found,
3. That the statement must concern the occurrence in question and its immediate attending circumstances,
like admitting the killing and the rape immediately after the discovery of the crime (People v. Valla 322
SCRA 74).

Article 3, Section 12 of the Phil. Constitution:

(1.) Any person under investigation for the commission of an offense shall have the right to be informed of
his right to remain silent and to have a competent and independent counsel preferable of his own choice. If
the person cannot afford the services of counsel, he must be provided with one. These rights cannot be
waived except in writing an din the presence of counsel.
(2) XXXXXXXXXXXXXXXX.
(3.) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in
evidence against him.

Requisites for admission and confession to be admissible if the accused is under custodial investigation
(Art. 3, Sec. 12 PC):
The confession must be voluntary, freely, without coercion, intimidation, inducement, or false promise and
must be credible (People v. Morada 307 SCRA 362);
The confession is made with the assistance of competent and independent counsel;
The confession must be express and categorical;
The confession must be in writing, and in the language known to and understood by the confessant;
It must be signed, of if the confessant does not know how to read, and write, thumbmarked by him (People
v. Del Rosario GR. No. 131036. June 20, 2001).

Extra judicial confession under Custodial investigation(must be assisted by a counsel)

An Extra judicial confession under Custodial investigation must conform to the constitutional requirements,
the fact that the same is given voluntarily is inadmissible in evidence in any proceedings, even if the
suspect’s confession were gospel truth (People v. Dano 339 SCRA 515, 2000 case.)

Re-enactment of the crime depicting accused participation , without the assistance of a counsel is
inadmissible in evidence (People v. Suarez 267 SCRA 119).

Police issuing an Invitation:

Practice of issuing an invitation and not to arrest is considered under custodial investigation and whatever
drawn there out is inadmissible (People V. Tan 286 SCRA207).

Police line up is considered not part of any custodial investigation

Police line up is considered not part of any custodial investigation and the identification of the suspect is
admissible in evidence (De la Torre v. CA 294 SCRA 196, People v. Salvatierra 276 SCRA 55).

20
Requisites for Police line up identification is admissible:
1. The witness opportunity to view the criminal at the time of the crime;
2. The witness degree of attention at that time;
3. The accuracy of any prior description given by the witness;
4. The level of certainty demonstrated by the witness at the identification;
5. The length of time between the crime and the identification;
6. The suggestiveness of the identification procedure.

Admission or Confession in violation of Custodial Rights inadmissible

A confession given without the presence of his counsel or in the presence of counsel engaged by the
investigator (the appointment of counsel was without his conformity)
= is inadmissible in evidence where (People v. Pamon 217 SCRA 501).

Accused has burden to show involuntariness

After the prosecution has shown compliance with the constitutional requirements on custodial investigation
the confession is deemed voluntary and the confessant has the burden of showing that the confession is
involuntary and untrue (People v. Ladao GR No. 100940 Nov. 27, 2001).

Section 36. Testimony Generally Confined to personal knowledge; Hearsay excluded.

A witness can testify only to those facts which he knows of his personal knowledge; that is, which are
derive from his own perception, except as otherwise provided in this rule.
A witness is one who has the ability to observe, record, recollect and account as well as an understanding of
the duty to tell the truth (People v. Amaca 277 SCRA 215).

This requires that as a general rule a witness can testify only those which he knows of hi personal
knowledge and not to those derived from the personal perception of others who are not called to testify,
thus Section 36 excludes hearsay evidence from being admitted.

Hearsay evidence defined.

Hearsay evidence defined as a statement, other than one made by the declarant while testifying at the trial,
offered in evidence to prove the truth of the matter asserted.

Hearsay evidence Rule:

Hearsay signifies all evidence which is not founded upon the personal knowledge of the witness from
whom it is elicited and which consequently does not depend for its credibility and weight upon the
confidence which the court may have on him.

Hearsay evidence is information relayed from another person to the witness before it reaches the court (Go
v. CA 351 SCRA 145). Or had merely reciting what someone else had told him, orally or in writing (People
v. Oposculo, Jr. 345 SCRA 267).

Three (3) Reasons for excluding Hearsay Evidence:

1. Absence of Cross examination (Mollaneda v. Umacob GR. No. 140128 June 6, 2001);
2. Absence of Demeanor evidence (DM Consunji Inc. v.CA 257 SCRA 249);
Absence of the oath (Estrada v, Desierto 356 SCRA 108).

Exception to Hearsay Rule (which means the person other than the one who made them is allowed to testify
to prove the truth of the statements, which are ordinarily hearsay, on the ground of necessity and
trustworthiness):
1. Dying Declaration;
2. Declaration against interest;
3. Act or Declaration about pedigree;
4. Family reputation or tradition;
5. Common reputation;
6. Part of the res gestae;
7. Entries in the course of business;
8. Entries in the official records;
9. Commercial list;
10. Learned Treaties;
11. Testimony and depositions at a former proceedings.
21
Section 37. Dying Declaration.
The declaration of a ding person, made under the consciousness of an impending death, may be received in
any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding
circumstances of such death.

Requisites:
1.The declaration was made under the consciousness of impending death;
2.The declaration refers to the cause and surrounding circumstances of the declarant’s death;
3.The declaration’s relates to facts which the victim is competent to testify;
4. The declarant’s thereafter dies;
5. The declaration is offered in a criminal case wherein the declarant’s death is the subject of inquiry.

In No.1 Requisite: The declaration was made under the consciousness of impending death, in consideration
of the following:
1. The words or statement of the declarant on the occasion;
2. His conduct at the time the declaration was made (US v. Virrey 37 Phil. 618);
3. The seriousness of the wounds as would necessarily engender a belief on his part that he would not
survive thereon (People v. Araja, et. Al GR No. L-24780).

In No.3 Requisite: The declaration’s relates to facts which the victim is competent to testify:
The declarant would have been competent and credible to testify, had he survived, as when the declarant
did not see the person who shot him, his dying declaration identifying his assailant does not satisfy the
requisites of a dying declaration as when he was shot from behind (People v. Flores 328 SCRA 461, 2000
case).

An exception to the hearsay rule because the dying person made said statement under the consciousness of
an impending death with respect to the cause and surrounding circumstances of his death (People v. Extra
72 SCRA 199). The fact that he died later is of no moment, what is important is that he believed himself in
imminent danger of death at the time the declaration was made (People v. Extra 72 SCRA 199).

Statement made shortly after one is wounded (Dual Admissibility of Dying Declaration and res gestae)
(People v. Amaca 277 SCRA 215):
Note: Shortly after the victim was wounded he was asked as to whether he would die and to which he
replied “I can’t ascertain” and he died the following day, his statement is admissible both as part of the res
gestae (Section 42) and as dying declaration (Section 37) (People v. Geron, et al. GR. No. L-29365). ), yet
the answer “I can’t Ascertain” negates consciousness of impending death which may be doubtful if the
same is admissible as dying declaration, however, surely as part of res gestae.

Statement both admissible as Dying Declaration and as part of Res gestae.

The statement which meets the requisites of both a dying declaration and part ores gestae may be admitted
as a dying declaration and at the same time as part o res gestae (People v. Gado 298 SCRA 466).

Statement which does not meet the requirements of a dying declaration may be admissible as part of the res
gestae.
Statement which does not meet the requirements of a dying declaration may be admissible as part of the
res gestae, as it elements are less stringent (People v. Esquilona 248 SCRA 139).

The declarant survived:

Note under the 2001 SC decision if the declarant survives then the declaration becomes a piece of hearsay
evidence, unless the declarant takes the witness stand and be cross-examined thereon (People v. Precados
349 SCRA 1).
Rationale of Dying Declaration, as exception to hearsay rule
When a person is at the point of death, every motive for falsehood is silence and the mind is induced by the
most powerful consideration to speak the truth (People v. Amaca 277 SCRA 215).

It is not the rapid succession of death that renders the testimony admissible instead his belief in an
impending death (People v. Quimson, GR. No. 130499, Oct. 5, 2001).

22
Section 42. Part of Res Gestae.
Statement made by a person
1.while in a starling occurrence is taking place or
2.immediately prior or subsequent thereto

with respect to the circumstances thereof, may be given in evidence as part of the res gestae.
So also, statement accompanying an equivocal act material to the issue, and giving it a legal significance,
may be received as part of the res gestae.
Res gestae means “things done”. It refers to those exclamations and statement made by either the
participants, victims, or spectators to a crime immediately before, or immediately after the commission of
the crime.
The statement were made as spontaneous reaction or utterance inspired by the excitement of the occasion
and there was no opportunity for the declarant to deliberate and to fabricate a false statement (People v.
Palmones 336 SCRA 80).

Requisites:
1. The statement is spontaneous;
2. It is made during a startling occurrence or immediately prior or subsequent thereto;
3. It relates to the circumstances of such occurrence.

Note: a Statement which does not meet the requirements of a dying declaration may be admissible as part
of the res gestae, as it elements are less stringent (People v. Esquilona 248 SCRA 139).

OPINION RULE
Section 48. General Rule.
The opinion of a witness is not admissible, except as indicated in the following sections.
Note:
OPINION- in the law of evidence, is an inference or conclusion drawn by a witness form facts, some of
which are known to him and others assumed, and do not evolve it by a process, of absolutely necessary
reasoning.

Examples: 1. Statement by non-experts that certain apparatus is defective;

2. Statement by a witness that accident was caused by the negligence of the defendant.

OPINION EVIDENCE- means the testimony of a witness, given or offered in the trial of an action, that the
witness is of the opinion that some facts pertinent to the case exist, offered as proof of the existence or non-
existence of the fact.

is evidence of what he thinks; believes, or infers in regard to facts in dispute, as distinguished from his
personal knowledge of the facts themselves ( Black’s law dict. P. 985, 5th Ed.).

General Rule as to Opinion:

A witness is not permitted to testify as to his opinion or conclusion. He must only state facts and not draw
conclusions or opinions (People v. Galleno 291 SCRA 761).

Conclusion of law- is a proposition not arrived at by any process of natural reasoning from a fact or
combination of facts stated, but by the application of artificial rules of law to the facts pleaded or proved
(Siquihan v. People 171 SCRA 223).

Court’s duty to draw conclusions.

For it is the Court’s duty to draw conclusions from the evidences and forms opinions upon the facts
proved(People v. Galleno 291 SCRA 761).

Statement of Fact and Expression of Opinion, distinguished.

Statement of Fact- Is that whatever is susceptible of exact knowledge is a matter of fact.

Gen. Rule on the opinion: The opinion of witness is generally not admissible.
Exception to the general rule that opinion is not admissible, under Sec. 49:

23
1. The opinion of an expert witness regarding a question of science, art or trade, when he is skilled therein.
2. The opinion of witness regarding the identity or handwriting of a person, when he has knowledge of the
person or handwriting.
3. The opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the
opinion being given.

Matters on which the Ordinary witness may testify his opinion.

1. The identity of a person about whom he has adequate knowledge;
2. A handwriting with which he has familiarity;
3. The mental sanity of a person with whom he is sufficiently acquainted;
4. Impressions of the emotion, behavior, condition or appearance of a person (Section 50).

Section 49. Expert witness.

The opinion of a witness on a matter requiring special knowledge, skill, expression or training which he is
shown to posses, may be received in evidence.

Expert witness- is the testimony of persons who are particularly skilled, or experienced in a particular art,
science, trade, business, profession or vocation, through knowledge of which is not possessed by men in
general, in regard to matters concerned therewith.

Requisites for admissibility of opinion of an expert witness.

1. That the subject under examination must be one where the court needs the end of knowledge or
experience which cannot be obtained from ordinary witness.
2. That the witness as an expert witness must possessed the knowledge, skill or experience needed to
inform the court in the particular case under consideration.

It is not enough that the witness belongs to the profession or calling to which the subject matter of the
inquiry relates; he must be qualified by further showing that he possess special knowledge.

Three (3) Factors in qualifying a person as an expert witness.

1. Training and education of the expert;
2. Particular, first hand familiarity with the facts of the present facts;
3. Presentation of the authorities or standards on which his opinion are based (People v. Abriol GR. No.
123137, 2001 case ).

Section 50. Opinion of Ordinary Witness.

The opinion of a witness for which proper basis is given, may be received in evidence regarding-

a. The identity of a person about whom he has adequate knowledge;

Ex. as one he has an acquaintance of longer years, a friend or a relative.

b. A handwriting with which he has familiarity;

Ex. A witness need not be a handwriting expert to be able to testify on the handwriting of a person if he is
familiar with is handwriting, as when he has seen him writing a number of times or acted as his secretary.

c. The mental sanity of a person with whom he is sufficiently acquainted;

Ex. An ordinary may be admits provided that the witness has had sufficient appearance of such person
bearing upon his Physical and mental condition as in case the mother of the offended party in rape case, if
the victim is suffering from, of about her educational attainment (People v. Duranan 349 SCRA 180).

d. Impressions of the emotion, behavior, condition or appearance of a person.

Ex. Mental retardation of a person can be proved by evidence other than medical evidence. It may be prove
by real evidence, like a mongoloid (People v. Dumanon 348 SCRA 461)
Note 1: Section 50 is an exception to the rule that an ordinary witness is not admissible as evidence
C. CHARACTER EVIDENCE

Section 51. Character evidence not generally admissible; exceptions-

In criminal cases:
(during trial proper) The accused may prove his good moral character which is pertinent to the moral trait
involved in the offenses charged.

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(Only in rebuttal) the offended party may prove accused bad moral character which is pertinent to the
moral trait involved in the offense charged.

=which means that that the rule proscribes the presentation of the accused’s bad moral character by the
prosecution until after the accused has presented evidence on his good moral character, by way of rebuttal
to disprove the evidence so offered.

To Sum up: Which means that, the defense should first present evidence on the good moral character of the
accused, then the prosecution, in rebuttal, should present an evidence of the accused’ bad moral character.

The god or bad moral character of the offended party may be proved if it tends to establish in any
reasonable degree the probability or improbability of the offense charged.

In Civil cases:
Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of
character involved in the case.

In case provided for in rule 132, Section 14. (Section 14. Rule 132. Evidence of good moral character of
witness- Evidence of good moral character of a witness is not admissible until such character has been
impeached)
Good or Bad character defined. It has been held that moral character is what a person really is, as
distinguished from good reputation or from the opinion generally entertained of him, the estimate in which
he is held by the public in the place where he is known.

Good Moral Character defined in a negative terms, as the absence of proven conduct or act which has been
historically and traditionally considered as a manifestation of moral turpitude (Konegsberg v. State Bar of
California).

Immorality, which is the antonym of good moral character, connotes conduct that shows indifference to the
moral norms of society and the opinion of good and respectable members of the community (Ui v.
Bonifacio 333 SCRA 38, 2000 case).

Good Moral Character of Accused.

In criminal case, the accused may proved his good moral character which is pertinent to the moral trait
involved in the offenses charged. This means that the character or reputation is in issue in the case and that
only in crimes which involved moral character, as fraud or deceit is an element of the crime such as 1.)
estafa, 2.) falsification of document, 3.) smuggling, 4.) bribery, 5.) homicide, 6.) bigamy, 7.) abduction, 8.)
seduction, 9.) concubinage and 9.) violation of BP 22.

Good moral character or exemplary conduct of the accused, though how good it may be, does not warrant
his acquittal if the court’s believes the commission of crime (People v. Concorcio GR No. 121201).

Unless in rebuttal, the prosecution may not prove the accused’s bad moral character.
The rule is that unless in rebuttal, the prosecution may not prove the accused’s bad moral character which is
pertinent to the moral trait involved in the offenses charged.
which means that that the rule proscribes the presentation of the accused’s bad moral character by the
prosecution until after the accused has presented evidence on his good moral character, by way of rebuttal
to disprove the evidence so offered (People v. Hodges 46 Phil 502).

To Sum up: Which means that, the defense should first present evidence on the good moral character of the
accused, then the prosecution, in rebuttal, should present an evidence of the accused’ bad moral character.

Good Moral Character of Offended Party.

The rule provides that the good moral or bad moral character of the offended party may be proved if it
tends to establish in any reasonable degree the probability or improbability of the offenses charged.

The rules is generally applicable in cases where the question is, who started violence or aggression ending
the killing of another.

25
Ex. Self defense. The evidence of bad moral character or reputation of the deceased for violence, such as
his previous conviction for assault and battery and for physical injuries, is pertinent and admissible, as it
tends to show that when the fatal blows were struck the accused had reasonable grounds for believing that
he was in grave peril of his life (People v. Sumicad 56 Phil 643).

The quarrelsome nature of the victim may tend to establish that he started the unlawful aggression (People
v. Sazon 189 SCRA 700).

General reputation of the offended party

The general reputation of the offended party must be proved by his general reputation in the community
and not by isolated act (People v. Babiera 52 Phil 97).

The bad Moral character of the offended party is admissible only to show the probability of the offenses
charged, However, such evidence of bad moral character, seeking to establish as it does only a probability,
cannot prevail over facts sufficiently proven during the trial (People v. Sazon 189 SCRA 700).

Moral Character of Witness (Rule 132, Sec.14).

A witness may be impeached by his bad moral character or by showing that his general reputation for truth,
honesty or integrity is bad. This means that testimonial and documentary evidence must be presented, thus
until such moral character has been impeached the evidence of the good moral character of a witness is not
admissible.

RULE 131.BURDEN OF PROOF AND PRESUMPTIONS

Section 1. Burden of Proof.
Burden of proof is the duty of the party to present evidence on the facts in issue necessary to establish his
claim or defense by the amount of evidence required by law.

He who asserts, not he who denies, must prove (Luxuria Homes Inc. v CA 302 SCRA 315).

The party who alleges has the burden of proof, who is either the plaintiff or the defendant in a civil suit; of
the prosecutor or the accused in a criminal case; or the complainant or the respondent in an administrative
case.

Defined, Burden of Proof or “onus probandi” defined as the obligation imposed upon a party who alleges
the existence of a fact or thing necessary in the prosecution or defense of an action, to establish its proof.

Rule on the Burden of Proof or “onus probandi” Burden of proof is the duty of the party to present
evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence
required by law (Luxuria Homes Inc. v CA 302 SCRA 315).

The quantum of proof required differs in civil, criminal and administrative case.
1. Preponderance of evidence. In civil case, the burden of proof required by law;
2. Beyond Reasonable Doubt. In criminal case, the burden of proof required by law.
3. Substantial evidence. In administrative case, the burden of proof required by law.
4. Probable Cause. The law required for the issuance of Warrant of Arrest.

5. Prima facie evidence. The quantum of evidence required for the filing of Information before the court
of law.
6. Clear and Convincing Evidence. The quantum of evidence required to overcome the regularity of the
notarization of a document. This is between Proof beyond reasonable doubt and Preponderance of
Evidence.

Definitions:
1. Proof Beyond Reasonable Doubt- which required for conviction of an accused in a criminal case. means
that which is logical and inevitable result of the evidence on record, exclusive of any other consideration,
of the moral certainty of the guilt of the accused or that degree of proof which produces conviction in an
unprejudiced mind.
It does not mean that such degree excludes possibility of error, produces absolute certainty. Moral
certainty is required.

26
2. Clear and Convincing Evidence- refers to that measure or degree or proof which will produce in the
mind of the trier of facts a firm belief or convictions as to the allegations sought to be established. It is
more than preponderance but not to the extent of such moral certainty as is required beyond reasonable
doubt as in criminal case.

3. Preponderance of Evidence- which is the degree of evidence required in civil cases, means that which is
“of greater weight” or more convincing than that which is offered to opposition to it. It is synonymous with
the terms “greater weight of evidence” or “greater weight of credible evidence”. It means probably the
truth.

-refers to evidence which is of greater weight, or more convincing than which is offered in opposition to
it; At bottom it means probability of truth (Jison v. CA 286 SCRA 495).Is evidence as a whole which is
superior to that of the defendant (Pacific Banking Corp. Empl. Org. v. CA 288 SCRA 198).

4. Substantial Evidence is that which is required to reach a conclusion in administrative proceedings or to

establish a fact before administrative and quasi-judicial bodies. Means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion, and it absence is not shown by stressing
that there is contrary evidence on record, direct or circumstantial (Velazquez v. Nery 211 SCRA 28).

5. Probable Cause. What is required is only a reasonable ground to believe that the accused has committed
the offense.

6. Warrant the filing of Information. What is required is only prima facie evidence.

Burden of proof in criminal cases requires the prosecution to prove the case beyond reasonable doubt and
the elements of the offense with which the accused is charged, otherwise, the accused should be acquitted
of the charge.

The burden of proof is never on the accused to establish his innocence or disprove the facts necessary to
establish the crime charged nor is the burden ever upon the defendant to show that he did not commit the
crime.

The burden of proving Affirmative Defense (Implies reversed trial).

In criminal case as well as in civil case, the burden of proving affirmative defense is upon the defendant. In
otherwords where the defendant in a criminal prosecution relies upon a distinct substantive matter to
exempt him from punishment, such as: Self defense and absolve him from liability, the burden of proof
then is shifted to him.

Burden of Evidence, defined as the logical necessity which rests on a party at any particular time during a
trial to create a prima facie case in his own favor, or to overthrow one when created against him.
The burden of evidence is determined by the progress of the trial, and shifts to one party when the other
party has produced sufficient evidence to be entitled as a matter of law to a ruling in his favor.

Presumption is defined as an inference of the existence or non-existence of some fact which courts are
required or permitted to draw from the proof of other facts. (Martin v. CA 205 SCRA 592).

EQUIPOSE RULE IN THE PENAL LAW:

The if the inculpatory facts and circumstances are capable of two or more explanations one of which is
consistent with the innocence of the accused and the other consistent with his guilt and the evidence does
not fulfill the test of moral certainty, the same must be denied which result to the acquittal of the accused
(Abarques v. People G.R. 150762 Jan. 20, 2006).
The rule is that the accused is presumed innocent until the contrary is proven beyond reasonable doubt and
in case the evidence for guilt and conviction are equally balanced then the acquittal is inevitable (People v.
Corpus G.R. 74259 Fe. 14, 1991).

Evidence are evenly balanced in criminal case

27
Where the evidence of the parties in criminal case are evenly balanced, the constitutional presumption of
innocence should tilt the scales in favor of the accused and he must be acquitted (Corpus v. People 194
SCRA 73).

EQUIPOSE RULE IN CIVIL CASES.

Where the evidence on an issue of facts is in equipoise or there is doubt on which side the evidence
preponderates, the party having the burden of proof fails upon that issue. Therefore, as neither party was
able to make out a case, neither side could establish its cause of action and prevail with the evidence it had..
hey are thus, no better off than before they proceeded to litigate, and, as a consequence thereof, the court
leave them as they are. In such case, courts have no choice but to dismiss the complaints or petitions
(Rivera v. CA 284 SCRA 673).

Classifications of Presumptions.
1. Presumption of juris or Law is described as a particular inference that must be drawn from an
ascertained state of facts. It derives its force from the law of the jurisdiction, not from logic or probability.

A presumption of law is disputable, and may overcome by evidence to rebut or contradict the facts from
which the presumption is based.

2. Presumption Hominis or of Fact- Leaves the trial court at liberty to infer certain conclusion from a
certain set of circumstances. This is not a presumption at all, but a mere inference.

Kinds of Presumption Juris or of Law:

1. Conclusive or Absolute Presumption juris or of law.
2. Disputable, Rebuttable or Provisional Presumption juris or of law.

1. Conclusive, Absolute Presumption juris or of law- are inferences which the law makes no peremptory
that it will not allow them to be overturned by nay contrary proof however strong.

2. Disputable, Rebuttable, Provisional Presumption of law- are those presumptions which may satisfactory
if uncontradicted. Such presumptions continue until overcome by proof to the contrary or by some stronger
presumption.

Section 2. Conclusive presumptions:

Whenever a party has, by his own declaration, act or omission, intentionally and deliberately led another to
believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify it (Conclusion by Estoppel).

=Under the doctrine of estoppel an admission or representation is rendered conclusive upon the person
making it, and cannot be denied or disprove as against the person relying thereon.

The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation
of landlord and tenant between them(Conclusion by Estoppel).

A conclusive presumption is an inference which the law makes so peremptory that it will not allow it to be
overturned by a contrary proof however strong (Mercando v. Santos 66 Phil 2156).

Conclusive presumption sometimes known as Irrebuttable presumption (Black’s law dict. 263, 5th ed.).

Estoppel as a basis of conclusive presumption as the basis of Pars. a and b of Rule 131. The basis of which
are public policy, fair dealing, good faith and justice, and the purpose of which is to forbid one to speak
against his own acts, representation, or commitments to the injury of one to whom they were directed and
who reasonably relied thereon.

Elements of Estoppel:

28
1. The actor who usually must have knowledge, notice or suspicion of the true facts, communicates
something to another in a misleading way, either by words, conduct or silence;

2. The other in fact relies reasonably or justifiably upon that communication;

3. The other would be harm materially if the actor is later permitted to assert any claim inconsistent with
his earlier conduct;

The actor knows, expects or foresees that the other would act upon the information given or that a
reasonable person in the actor’s position would expect or foresees such action (Phil. Bank of
communication v. CA 289 SCRA 178).

Instances of Conclusive or Absolute Presumption.

1. Estoppel by Laches arises from the negligence or omission to assert a right within a reasonable time,
warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it.

2. Estoppel by Pais (equitable estoppel) arises when one, by his acts, representations or admissions, or by
his silence when he ought to speak out, intentionally or through culpable negligence induces another to
believe certain pact to exist and such other rightfully relies and acts on such belief, so that he will be
prejudiced if the former is permitted to deny the existence of such facts (Panay Elec. Co., Inc. v. CA 174
SCRA 500)
- Wherever a party has, by his own declaration, act or omission, intentionally and
deliberately led another to believe a particular thing true and to act upon such belief, he ca not, in any
litigation arising out of such declaration, acts or omission, be permitted to falsify it.

3. Estoppel against Tenant. The tenant is not permitted to deny the tile of his landlord at the time of the
commencement of the relationship between landlord and tenant.

Example: Contract of lease between lessor and lessee, the former cannot deny the title of the former.

See also Arts. 1431 to 1439 of the New Civil Code for further reference.

Section 3. Disputable presumption.

The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by
other evidence.
1. That a person is innocent of a crime or wrong;
2. That unlawful act was done in an unlawful intent;
3. That a person intends the ordinary consequences of his voluntary acts;
4. That a person takes ordinary care of his concerns;
5. That evidence willfully suppressed would be adverse if produced;
6. That money paid by one to another was due to the latter;
7. That a thing delivered by one to another belonged to the latter;
8. That an obligation delivered up to the debtor has been paid;
9. That prior rents or installments had been paid when a receipt for the later ones is produced;
10. That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and
the doer of the whole act; otherwise, that things which a person possesses, or exercise acts of ownership
over, are owned by him;
11. That a person acting in a public office was regularly appointed or elected to it;
12. That official duty has been regularly performed;
13. That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful
exercise of jurisdiction;
14. That all the matters within an issue raised in a case were laid before the court nad passed upon by it;
and in like manner that all matters within an issue raised in a dispute submitted fro arbitration were laid
before the arbitrators and passed upon by them;
15. That private transaction have been fair and regular;
16. That the ordinary course of business has been followed;
17. That there was a sufficient consideration for a contract;
18. That a negotiable instrument was given or indorsed for a sufficient consideration;

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19. That an endorsement of negotiable instrument was made before the instrument was overdue and at the
place where the instrument is dated;
20. That a writing is duly dated;
21. That a letter duly directed and mailed was received in the regular course of the mail;
22. That after the absence of seven years, it being unknown whether or not the absence still lives, he is
considered dead for all purposes, except for those of succession.

Absentee for a period of time:

The absentee shall not be considered dead for the purpose of opening his succession till after an absence of
ten years.

If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order
that his succession may be opened.

3. The following shall be considered dead for all purposes including the division of the estate among heirs:
1. A person onboard a vessel lost during a sea voyage, or an aircraft which is missing, who has not been
heard of for 4 years since the loss of the vessel or aircraft;

2. A member of the armed forces who has taken part in armed hostilities, and has been missing for 4 years;

3. A person who has been in danger of death under other circumstances and whose existence has not been
known for 4 ears;

4. If a married person has been absent for 4 consecutive years, the spouse present may contract a
subsequent marriage if he or she has a well-founded belief that the absent spouse is already dead.

In case of disappearance, where there is danger of death

under the circumstances hereinabove provided, an absence of 2 years shall be sufficient for the purpose
contracting a subsequent marriage.

SUMMARY PROCEEDING FOR PRESUMTIVE DEATH DECLARATION:

However in any case, before marrying again, the spouse present must institute a summary proceeding as
provided in the family code and in the rules for a declaration of the presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent spouse (Declaration of the presumptive death
case)

1. That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact;

2. That things have been happened according to the ordinary course of nature and the ordinary habits of
life;

3. That the persons acting as co-partners have entered into a contract of co-partnership;

4. That a man and a woman deporting themselves as husband and wife have entered into a lawful contract
of marriage;

5. That property acquired by a man and a woman who are capacitated to marry each other and who live
exclusively with each other as husband and wife without the benefit of marriage or under a void marriage,
has been obtained by their joint efforts, work or industry;

6.That in case of cohabitation by a man and a woman who are not capacitated to marry each other and who
have acquired property through their actual joint contributions and their corresponding shares including
joint deposits of money and evidences of credit are equal;

7. That the marriage is terminated and the mother contracted another marriage within 300 days after such
termination of the former marriage, theses rules shall govern in the absence of proof to the contrary;

8. A child born before 180 days after the solemnization of the subsequent marriage is considered to have
been conceived during the former marriage, provided it be born within 300 days after the termination of the
former marriage;

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9. A child born after 180 days following the celebration of the subsequent marriage is considered to have
been conceived during such marriage, even though it be born within 300 days after the termination of the
former marriage;

10. That the thing once proved to exist continues as long as is usual with things of that nature;

11. That the law has been obeyed;

12. That a printed or a published book, purporting to be printed or published by public authority, was so
printed or published;

13. That a printed or a published book, purporting to contain reports of cases adjudicated in tribunals of the
country where the book is published, contains correct reports of such cases;

14. That a trustee or other person whose duty it was to convey real property to a particular person has
actually conveyed it to him when such presumption is necessary to perfect the title of such person or is
successor in interest;

15. That except for purposes of succession, when 2 persons perish in the same calamity, such as wreck,
battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from
which it can be inferred, the survivorship is determined from the probabilities resulting from the strength
and age of the sexes, according to the following rules:
a. If both were under the age of 15 years, the older is deemed to have survived;
b. If both were under the age of 60, the younger is deemed to have survived;
c. If one is under 15 and the other above 60, the former (under 15 years of age) is deemed to have
survived;
d. If both over 15 and under 60, and the sex be different, the male is deemed to have survived; if the sex be
the same, the older;
e. If one be under 15 or over 60, and the other between those ages, the latter is deemed to have survived;

16. That If there is doubt, as between two or more persons who are called to succeed each other, as to
which of them died first:
1. Whoever alleges the death of one prior to the other, shall prove the same;
2. In the absence of proof, they shall be considered to have died at the same time.

Presumption created by law and presumption of innocence under the constitution.

The statutory presumption is merely prima facie, it can not, under the guise of regulating the presentation of
evidence, operate to preclude the accused from presenting the defense to rebut the main fact presumed. At
no instance the accused be denied the right to rebut the presumption.

Presumption of constitutionality of law. The statute is presumed valid (Salas v. Jarencio 46 SCRA 734).

The reason lies in the very essence of how a law is enacted. Before a legislature pass a bill, it is presumed
that it has decided the measure to be constitutional and when the president approves the bill he is
convinced the bill to be constitutional.

Under the constitution the accused is presumed innocent unless the contrary is proven otherwise. The
presumption of innocence anchored on the basic principles of justice. It can not be overcome by suspicion
or conjecture. To overcome the presumption, proof beyond reasonable doubt of every facts essential to
constitute the offense with which the accused is charged must be clearly established by the prosecution.

Presumption that official duty has been regularly performed.

The presumption of regularity in the performance of official duties applies to public officers from the
highest to the lowest in the service of the government.

When two or more presumptions conflict..

When two or more presumptions involved in a case are in conflict, on tending to demonstrate guilt of the
accused and the other his innocence, it is necessary to examine the basic for each presumption and

31
determine what logical or social basis exist for each presumption, and then determine which should be
regarded as the more important and entitled to prevail over the other. The case must be resolved upon the
theory of innocence rather than upon a theory of guilt when it is possible to do so (Eastern shipping lines
Inc. v CA 234 SCRA 78).

Note in the criminal law, the doctrine of Equipose Rule:

Interpretation of Penal Laws in Relation to the Accused Culpability:
The same should be interpreted in favor of the accused and against the state, in case there is ambiguity in
the interpretation of the same.
Reason. The state is the one drafting and prescribed the law in case there is ambiguity in the interpretation
of it the same should be read in favor of the accused.

Equipose rule in the Penal law:

The if the inculpatory facts and circumstances are capable of two or more explanations one of which is
consistent with the innocence of the accused and the other consistent with his guilt and the evidence does
not fulfill the test of moral certainty, the same must be denied which result to the acquittal of the accused
(Abarques v. People G.R. 150762 Jan. 20, 2006).

The rule is that the accused is presumed innocent until the contrary is proven beyond reasonable doubt and
in case the evidence for guilt and conviction are equally balanced then the acquittal is inevitable (People v.
Corpus G.R. 74259 Fe. 14, 1991).

Other rulings on disputable Presumptions:

1. Witness presumed not actuated by improper motive (Pp. v. Abapo 239 SCRA 469);
2. Witness presumed to be truthful (Pp. v. Relucio 86 SCRA 227);
3. Confession deemed voluntary (People v. Magdamit 279 SCRA 423);
4. Persons living together are presumed married (People v. Borromeo 133 SCRA 106);
4. Possessor of a thing is presumed owner (Rojas v. CA 192 SCRA 709);
5. Donation by one who did not reserve property is presumed fraudulent (Siguan v. Lim 318 SCRA 725);
6. Registration of vehicle is presumed owned by the registrant (Chian Liong Tan v. CA 228 SCRA 75);
7. Driver who bumped presumed cause of the accident (Raynera v, Hecita 306 SCRA 102);
8. Sanity is presumed (People v. Mengote 305 SCRA 380);
9. Act presumed voluntary ( People v. Villa, jr. 331 SCRA 142);
10. Children born of wedlock presumed legitimate (Tison v. CA 276 SCRA 582);
11. Persons lost at sea is presumed dead (Aboitiz Shipping corp. v. Oqueria 14 SCRA 1046);
12. Public documents are presumed regular (Rules of Court);

RULE 132. PRESENTATION OF EVIDENCE

EXAMINATION OF WITNESS

Section 1. Examination to be done in open court.

The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or
affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of
answer, the answers of the witness shall be given orally.

Reasons for the rule why witness shall be done in open court:
1. To secure the opportunity of cross-examination;
2. To allow the trial judge to observe the deportment and appearance of the witness while testifying (De la
Torre v.CA 294 SCRA 196).

Ex. In one case the trial court issued an order authorizing the defense, upon its proposal to submit affidavits
of their witnesses to serve as their direct testimony, subject to cross-examination by the prosecution.
Challenged as having been issued with grave abuse of discretion as it violated the rule that the testimony
should be given orally in open court. The supreme Court said in setting aside said order: ”The main
essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adversed
party the opportunity for cross examination. The opponent, according to an imminent authority, demands
confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for
the purpose of cross examination”.

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Section 2. Proceedings to be recoded.

The examination of a witness in open court by means of oral questions asked of the witness and the
answers thereto by the latter given orally. The proceedings are recorded stenographically and reduced in
writing.

If the witness suffers from physical defect, such as when a witness is physically incapacitated to talk or to
hear or see, then the court shall devise ways or adopt means to enable the witness to give his testimony.

Section 3. Rights and obligations of a witness.

A witness must answer questions, although his answer may tend to establish a claim against him. However
it is a right of a witness:
1.To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;
2. Not to be detained longer than the interest of justice require;
3. Not to be examined except only as to matters pertinent to the issue;
4. Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise
provided by law; or
5. Not to give answer which will tend to degrade his reputation, unless it be to the very fact a tissue or to a
fact from which the fact in issue of his previous final conviction for an offense.

Who are entitled to the right against self-incrimination.

The right against self-incrimination is accorded to every persons who gives evidence, Whether voluntary or
under compulsion of a subpoena, in a civil, criminal or administrative proceedings if the latter partakes the
nature of a criminal proceedings or analogous to a criminal proceedings (Benzon jr. v. Senate Blue Ribbon
Committee 203 SCRA 767). The right is not to be compelled to be a witness against one’s self. The right to
refuse to answer any incriminatory questions.

Right, when to claim:

The right can be claimed only when the specific question, incriminatory in character, is actually put to the
witness because before a question is asked, there would be no way of telling whether the answer sought to
be elicited is self incriminatory or not (Gonzales v. Sec. of labor 94 Phil 325).

The right against self incrimination is a protection against TESTIMONIAL compulsion. It prohibits the use
of physical or moral compulsion to extort communications from the accused, not an exclusion of his body
as evidence when it may be material, as requiring him to take part in a police line up, to remove his
garments, to put on a pair of pants, and a hat shoes or garments(People v. Codilla 224 SCRA 104). The
right does not apply to photographing, fingerprinting, and paraffin-testing (Alih v. Castro 151 SCRA 279).

Rule on examination of a child witness.

A child regardless of age can be a competent witness if he can perceive, and perceiving, can make known
his perception to others and that he is capable of relating truthfully facts for which he is examined (People
v. Nang 289 SCRA 16).

Section 4. Order in the examination of an individual witness.

The order in which an individual witness may be examined is a follows:
a.) Direct examination by the proponent;
b.) Cross examination by the opponent;
c.) Re-direct examination by the proponent;
d.) Re-cross examination by the opponent;
e.) Rebuttal (Rule 119, Sec. 11 (c));
f.) Sur-rebuttal (Rule 119, Sec. 11 (c)).

Note: the above provision should be read in relation to Rule 30, Section 5 of the rules on civil Procedure on
the Order of Trial and Order of Trial in Criminal cases under Rule 119, Section 11, both of which provide
for the presentation of rebuttal evidence.

After the accused of the defendant has rested its case, the prosecution or the plaintiff may present rebuttal
evidence, and the trial court in furtherance of justice, may permit them to present additional evidence
bearing upon the main issue or upon the main case. The court has considerable discretion in admitting

33
rebuttal evidence, as long a s the other party is not taken by surprise and is not prevented from introducing
evidence in sur-rebuttal (Pana v. Buyser GR. No. 130144, May 24, 2001).
Section 5. Direct examination
Direct examination is the examination-in-chief of a witness by the party presenting him on the facts
relevant to the issue.

Section 6. Cross-examination; its purpose and extent.

Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as
to any matter stated in direct examination, or connected therewith, with sufficient fullness and freedom to
test his accuracy and truthfulness and freedom form interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue.

Note: the party to a case has the right to cross-examined the witnesses at the trial.
This is known as the RIGHT OF CONFRONTATION.

Purposes and scopes of cross examination:

First: To test the accuracy and truthfulness of the witness and his freedom from interest or bias or the
reverse. Cross examination is the only effective means to test truthfulness, memory, and intelligence
(People v. Parungao 265 SCRA 140).

It is the province of cross examination to:

test the credibility of the witness,
expose falsehood or half truth,
uncover the truth which rehearsed direct examination testimonies may successfully suppress, and
demonstrates inconsistencies on substantial matters which creates reasonable doubts. (People v. Pido 200
SCRA 45).

Second: To illicit important facts bearing upon the issue. That means that all the witness may be cross
examined not only on matters covered in the direct examination but also on all other matters relevant to the
issue or issues pleaded, for the purpose of eliciting facts bearing on the issue or issues (Capitol Subd., Inc.
v. Negros Occidental 99 Phil 633).

There are two(2) rules on the scope of cross examination.

English Rule: That the cross examination may cover not only those which are the subject of direct
examination but also those which are relevant to the issue or issues pleaded, for the purpose of eliciting
facts bearing in the issue;
2. American Rule: Which restricts the cross examination only to those matters which are the subject of the
direct examination.

Note the Supreme Court in the case of Capitol Subd., Inc. v. Negros Occidental 99 Phil 633 adopts the
English Rule in this jurisdiction.

Lack of cross examination due to the death of the witness does not necessarily render the deceased’s
previous testimony expungible.

Right to cross examination may be waived. This right is a part of due process and therefore can be waived,
if the party is given the opportunity but did not avail it.

Section 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 answer given during the cross examination. On re-direct examination,
questions on matters not dealt with during the cross examination, may be allowed by the court in its
discretion.

Object on re-direct examination.

The principal object of re-direct examination is:
to prevent injustice to the witness and the party who has called him
by affording an opportunity to the witness to explain the testimony given on cross examination, and
to explain any apparent contradiction or inconsistencies in his statements which opportunity afforded him
during re-direct examination (People v. De Guzman 265 SCRA 228).

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Section 8. Re-cross examination.
Upon the conclusion of the re-direct examination, the adverse party may re-cross examine the witness on
matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in
its discretion.

Note:
Re-cross examination is ordinarily limited to matters in the re-direct examination, however the court may
allow, upon motion, the re-cross examination of the witness on other matters.

Section 9. Recalling witness.

After the examination of a witness by both sides has been concluded, the witness cannot be re-called
without leave of court. The court will grant or withhold leave in its discretion, as the interest of justice may
require.

Note:
After the examination of a witness by both sides has been concluded, the witness cannot be re-called
without leave of court. The court will grant or withhold leave in its discretion which may be granted only
upon showing of some concrete, substantial grounds for recall, as to identify material points or particular
vital documents which are not presented to the witness or the cross examination was conducted in so inept
manner as to result in a virtual absence thereof (People v. Rivera 200 SCRA 786).

Section 10 Leading and Misleading Questions.

A question which suggest to the witness the answer which the examining party desires is a leading
question. It is not allowed, except:
a. On cross examination;
b. On preliminary matters;
c. When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a
child of tender years, or is of feeble mind, or a deaf-mute;
d. Of an unwilling or hostile witness; or
e. Of a witness who is an adverse party or an officer, director, managing agent of a public or private
corporation or of a partnership or association which is an adverse party;
Leading question is a question which suggest to the witness the answer which the examining party desires.
It is not allowed, except:
a. On cross examination;
b. On preliminary matters;
c. When there is difficulty in getting direct and intelligible answers from a witness who is
1.ignorant, or
2.a child of tender years, or
3.is of feeble mind, or
4.a deaf-mute;
d. Of an unwilling or hostile witness; or
e. Of a witness who is an adverse party or an officer, director, managing agent of a public or private
corporation or of a partnership or association which is an adverse party;

Misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to
that which he has previously stated.

Hostile witness is a witness who manifests so much hostility or prejudice under examination-in-chief that
the party who has called him is allowed to cross examine him. (Black’s law Dict. 665, 5th edition).

Section 11. Impeachment of adverse party’s witness.

A witness may be impeached by the party against whom he was called,
1. by contradictory evidence,
2. by evidence that his general reputation for truth, honesty, or integrity is bad (see section 14.), or
3. by evidence that he has made at other times statements inconsistent with his present testimony (see
section13),

Except, by evidence of particular wrongful acts,

35
 Except that it may be shown by the examination of the witness, or the record of the judgment, that he has
been convicted of an offense.

Purposes of impeachment:
1. Is to discredit him in his testimony;
2. To show that his testimony is without or very little evidentiary value.

How witness may be impeached:

1. by contradictory evidence;
2. by evidence that his general reputation for truth, honesty, or integrity is bad; or
3. by evidence that he has made at other times statements inconsistent with his present testimony.
4. by contradictory evidence, evidence that he has made at other times statements inconsistent with his
present testimony.

The credibility of a witness may be attacked by proof of bias, interest or hostility; (58 AM. JUR. P. 370).

Method of impeachment:
1. By Cross examination;
2. By presenting other witness to rebut his testimony and to show his general reputation for truth, honesty
and integrity to be bad.

Rule 132, sec. 6 grants the cross-examiner to elicit answer which may reveal his bias, hostility or interest
against the adverse party and or contradictory form the lips of the witness which becomes worthless for
both parties (Mondragon v. Ca 61 SCRA 511).

Section 12. Party may not impeach his own witness.

Except with respect to witness referred to in paragraphs (d) and (e) of section 10, the party producing a
witness is not allowed to impeached his credibility.

Gen. Rule: Party may not impeach his own witness, except:
1. (d.), sec.10. if the witness is an unwilling or hostile witness; or
2. (e.), sec.10. if the witness who is an adverse party or an officer, director, managing agent of a public or
private corporation or of a partnership or association which is an adverse party;

An unwilling or hostile witness may first be declared by the court.

Grounds to be shown, that his witness has:
1.) shows adverse interest,
2.) shows unjustified reluctance to testify, or
3.) having mislead the party into calling him to the witness stand.

*An unwilling or hostile witness may be impeached by the party presenting him.
The 1.) unwilling or hostile witness or so declared, or
2.) the witness who is an adverse party, may be impeached in all respects as if he had been called by
the adverse party, except by evidence of his bad character.

Note: is the adverse party may object on questions propounded which are harassing?

An unwilling or hostile witness may be cross-examined by the adverse party.

He may also be impeached and cross-examined by the adverse party, but such cross-examination must only
be on the subject matter of his examination-in-chief.

Section 13. How witness impeached by evidence of inconsistent statement (see section 11, par. 3).
Requisites before a witness can be impeached by evidence that he has made at other times statement
inconsistent with his present testimony,

1. the statements must be related to him, with the circumstances of the times and places and the persons
present, and

2. he must be asked whether he made such statement,

36
and if so (if he made)
a.) allowed to explain them.
b.) If the statement be in writing they must be shown to the witness before any question is put to him
concerning them.

If he denied:
He should then, be confronted with previous statement and the same would be read and shown to him and
then give him the opportunity to explain.

Failure on his part to satisfactorily explain may render him impeached as a witness (Molina v People 259
SCRA 157).

COMMENTS:
Laying the predicate for Impeachment:
A witness cannot be impeached by evidence of contradictory or prior inconsistent statements until the
proper foundation or predicate has been laid by the party against whom said witness was called (People v.
De Guzman 288 SCRA 346).

To impeach a witness’ credibility, her previous testimony, alleged to be inconsistent with her subsequent
one, should be shown or read to the witness.(the counsel may confront the witness)
Under rule 132, sec. 13 in order to impeach a witness’ credibility, her previous testimony, alleged to be
inconsistent with her subsequent one, should be shown or read to the witness and then he should be asked
to explain the apparent discrepancy. If this is not done, the adversed party cannot derive any benefit from
the supposed contradiction in the witness’ testimony (People v. Campaner 336 SCRA 439).

Instances where there is no showing and reading of the previous statement and the counsel did not object.
HOWEVER, if the document containing the contradictory statement was,
1. offered in evidence, without laying the predicate, and
2. the witness was thus given no opportunity to explain the contradictions,
3. but the other party did not object thereto,
=the omission to object on the ground of failure to the lay the predicate is waived, and the court well then
determine, on the basis of such documentary evidence and the testimony of the witness, whether the latter
has been impeached.

Section 14. Evidence of good moral character of witness.

Evidence of good character of a witness is not admissible until such character has been impeached.
A witness may be impeached by evidence that his general reputation for truth, honesty, or integrity is bad.
Until evidence to that effect has been presented, evidence of the good character of a witness is not
admissible.

Evidence of good moral character of witness.

In otherwords, the bad character of a witness must be presented first, then his good reputation will be
allowed to be presented.

Section 15. Exclusion and separation of witness.

On any trial or hearing, the judge may exclude from the court any witness not at the time under
examination, so that he may not hear the testimony of other witnesses. The judge may also cause witnesses
to be kept separate and to be prevented from conversing with one another until all shall have been
examined.

The practice is for the counsel of the adverse party to move for the exclusion of other witnesses from the
court room not under examination at the time, particularly in criminal cases. The rule does not apply to
parties in civil case (Paez v. Berenguer 8 Phil 454 ).

Section 16. When witness may refer to memorandum.

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

Memorandum is not an evidence. It is used to refresh the memory of the witness in testifying before the
court.

B.AUTHENTICATION AND PROOF OF DOCUMENTS

Section 19. Classes of documents.
For the purpose of their presentation in evidence, documents are either public or private.

Public documents are (see also section 23):

The written official acts, or records of the official acts of the sovereign authority, official bodies and
tribunal, and public officers, whether of the Philippines, or of a foreign country;
Documents acknowledged before a notary public, except last will and testament; and
Public records, kept in the Philippines of private documents required by law to be entered therein.

All other writing are private.

Public Documents are Documents which are authenticated by a notary public or by a competent public
official, with formalities required by law, are classified into two:
1.Those executed by a private person which are authenticated by notaries public;
2. And those issued by competent public officials by reason of their office. (Lim v. CA 65 SCRA 161).

Document defined as a deed, instrument or other duly notarized paper by which something is proved
evidenced set forth.

Pleading filed in a case and in a custody of the clerk of court are public documents (Bermejo v. Barrios 31
SCRA 764).

The above public documents are admissible in evidence without further proof of their authenticity, and all
that the party presenting them in evidence has to do is to mark them as exhibits and thereafter offer them as
evidence in accordance with the rules ( Antillon v. Barcelon 37 Phil. 148).

Section 20 Proof of Private Document.

Before any private document offered as authentic is received in evidence, its due execution and authenticity
must be proved, either:
(a.) By anyone who saw the document executed or written; or

(b.) By evidence of the genuineness of the signature or handwriting of the maker.

Any private other document need only be identified as that which it is claimed to be.

Proof of Private Document, its due execution and authenticity must be proved, either
(a.) By anyone who saw the document executed or written; or

(b.) By evidence of the genuineness of the signature or handwriting of the maker.

Photograph as evidence, authenticated:

General Rule: The photographs when presented in evidence, must be identified by the photographer as to
their production and testified to the circumstances under which they were produced. The photographer is
not the only witness who can identify the pictures but also by a person who are present at the time it was
taken or by other competent witness (Sison v. People 250 SCRA 58).

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How will is authenticated:
A will is the testator speaking after death (Reyes v. CA 167 SCRA 736). A will is a specie of conveyance
whereby a person is permitted, with formalities prescribed by law, to control to a certain degree the
disposition of his estate after his death.

Two kinds of will:

1. Notarial will; and
2. Holographic will.

Section 21. When evidence of authenticity or private document not necessary.

Where a private document is more than 30 years old. Is produced from a custody in which it would
naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other
evidence of its authenticity need be given.

An ancient document refers to a private which is more than 30 years old, produced from a custody in which
it would naturally be found if genuine.

An ancient document is one that:

1. More than 30 years old;
2. Found in the proper custody; and
3. Unblemished by any alteration or by any circumstances of suspicion.

Section 32. How genuineness of handwriting proved.

The handwriting of a person may be proved by any witness
1. who believes it to be the handwriting of such person because he has seen the person write, or
2. has seen writing purporting to be his upon which the witness has acted or has been charged, and has thus
acquired knowledge of the handwriting of such person.

Evidence respecting the handwriting may also be given by

1. a comparison, made by the witness or the court, with writing admitted or treated as genuine by the party
against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge.

How to proved handwriting:

A person can obtain knowledge of the genuine writing of another by:
1.) Seeing the person write some other documents or signatures;
2.) Seeing document otherwise known to him to have been written by the person in question;
3.) Examining, in or out of court, for the express purpose of obtaining such knowledge.

Human experience has proven that the lines and strokes of a person’s handwriting reflect his disposition at
a certain given time (Filoteo, Jr. v. Sandiganbayan 263 SCRA222).

Section 23. Public documents as evidence.

Documents consisting of entries in public records made in the performance of a duty by a public officer are
prima facie evidence of the facts therein stated.

All other public documents are evidence, even against a third persons, of the fact which gave rise to their
execution and the date of the latter.

Reference:
Rule 132, Sec, 19. Public documents are:
The written official acts, or records of the official acts of the sovereign authority, official bodies and
tribunal, and public officers, whether of the Philippines, or of a foreign country;
Documents acknowledged before a notary public, except last will and testament; and
Public records, kept in the Philippines of private documents required by law to be entered therein.

Public Documents are Documents which are authenticated by a notary public or by a competent public
official, with formalities required by law, are classified into two:
1.Thoseexecuted by a private person which are authenticated by notaries public;

39
2. And those issued by competent public officials by reason of their office. (Lim v. CA 65 SCRA 161).

Rule 130. Section 44. Entries in official record. Entries in official record made in 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.

Prima facie Evidence means evidence which, if unexplained or uncontradicted, is sufficient to sustain the
proposition it supports or to establish the facts alleged (Salong v. Cruz-Pano 134 SCRA438) and to sustain
a judgment in favor of the issue it supports.

Section 26. Irremovability of Public Record.

Any public record, an official copy of which is admissible in evidence, must not be removed from the
office in which it is kept, except upon order of a court where the inspection of the record is essential to the
just determination of a pending case.

As a general rule: Public record is irremovable from where it is officially kept. A certified true copy of the
document, by the official who has official custody of the record, is admissible in evidence.
Except: upon order of a court where the inspection of the record is essential to the just determination of a
pending case.

Certified photo copy of the document, cannot be secured.

If the party desiring to secure a certified photo copy of the document, cannot for any reason, secure a
certified photo copy, his recourse is to apply for a subpoena duces tecum for the officer to produce in court
either the official document itself or a certified photo copy of the desired document.

Section 27. Public record of a private document.

Any authorized public record of a private document may be proved by the original record, or by a copy
thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the
custody.

If a private document, which has been introduced as evidence in a case, is needed by a party in another case
as evidence, he may secure a certified true copy of the exhibit from the clerk of court where said document
was submitted in evidence.

Section 30. Proof of Notarial Document.

Every instrument duly acknowledged or proved and certified as provided by law, may be presented in
evidence without further proof, the certificate of acknowledgment being prima facie evidence of the
execution of the instrument or document involved.

Effect of Notarization:
It converts a private documents into a public one and renders it admissible in court without further proof of
its authenticity. A Notarial document is by law entitled to full faith and credit upon its face, and for this,
reason notaries public must observe with utmost care the basic requirements in the performance of their
duties (Conrado v. Felongco 344 SCRA 565).

Public documents as evidence without authentication:

Public documents, whether they are those issued by competent public officials by reason of their office, or
those executed by private individuals which are authenticated by notaries public (Intestate Estate of Pareja
v. Pareja 95 Phil 167) are presumed duly executed and authentic. Hence to present them in evidence, all
that proponent will do is to mark them as exhibits and thereafter offer them in evidence.

The public officials who executed them or the notaries public of the witnesses to the execution of the
documents need not to have to be called as witness to prove their due execution and authenticity, without
further proof of their due execution and delivery, it being sufficient that they may be marked for
identification purposes and thereafter, at the proper time, offered in evidence, unless and until some

question is raised as to the veracity of the acknowledgment and certificate (Antillon v. Barcelona 37 Phil.
148).

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Reason for admission of public documents without further proof of execution.
Reason for admission of public documents without further proof of execution lies in the numbers of
litigations involving public documents and in the interest of the administration or public duties. Litigations
are unlimited, and to call a public officer to testify as to the due execution and authenticity of a document
involved in a case may find him devoting the greater part of his official time attending as witness, to the
detriment of the public service(Antillon v. Barcelona 37 Phil. 148).

C. OFFER AND OBJECTION

Section 34. Offer of evidence.
The court shall consider no evidence which has not been formally offered. The purpose for which the
evidence is offered must be specified.

Meaning of Offer. Evidence may be testimonial, documentary or real. To be considered by the court, the
evidence must be formally offered and the purpose for which the evidence is offered must be specified,
otherwise the court may not consider the evidence.

The offer of Testimonial evidence means the statement made by counsel of the purpose of and what he
expects to prove through the witness, which is made when the witness is called to the witness stand and
before he proceeds to testify. (sec. 35)
Having been allowed by the court to testify, an offer of testimony is also made when the witness is asked
appropriate question in the course of the trial for every question asked is an offer of oral testimony.

With respect to testimonial evidence, the offer is made at the time the witness is called to testify, as well as
when specific questions are asked of the witness.

The offer of Documentary evidence consists of its identification and marking as exhibits in the course of
the trial, its authentication if it is a private document by presentation of witnesses to prove its due
execution, and its formal presentation orally or in writing, be describing it, stating its purpose and handling
it to the clerk of court before the party rests its case. (sec. 35)

Documents marked s exhibits but not formally offered in evidence may not be considered by the court
(Tabuena v. C.A. 196 SCRA 650).

Evidence offered by one party and admitted by the court need not be adopted by the other party
Evidence offered by one party and admitted by the court need not be adopted by the other party in order
that the same may be considered in his favor. There is nothing in section 34 which requires that the
evidence be offered or adopted by a party before it could be considered in his favor. It is enough that the
evidence is offered for the court’s consideration (Supreme Transliner Inc. v C.A. G.R. 125356 Nov. 21,
2001).

The evidence submitted and admitted by the court becomes property of the case, and either or both parties
are bound by its favorable or unfavorable effects resulting therefrom.

Evidence not Formally offered may not be offered.

Courts are bound to considered as part of the evidence only those which are formally offered, for judge
must base their findings strictly on the evidence submitted by the parties at the trial(Dumagsang v C.A. 347
SCRA 75).

A document is valueless unless it is formally offered in evidence and the opposing counsel is given an
opportunity to cross examine any witness called to identify or authenticate it and to object thereto when the
offer is made. Evidence not formally offered during trial cannot be considered on appeal.

The rule that documents not formally offered in evidence cannot be considered by the court admits of
certain exceptions, namely
1. When such document is attached as an annex of the complaint as an actionable document, upon which
the claim is founded, which thereby becomes part thereof, and the same may be considered even though no
formally introduced as such (Puromines Inc. v. C.A. 220 SCRA 281). Thus it has been held that where the
document is duly recorded and incorporated in the records of the case, the court may consider such
evidence (People v. Mate 103 SCRA 484). For in such case it would be needless formality to offer it in

41
evidence, and it is error for the trial court not to take cognizance of such evidence (Bravo v. Borja 134
SCRA 466).

2. When the following requirements are present, such:

First: The documents has been duly identified by testimony and duly recorded, and
Second: The same has been incorporated in the records of the case (Vda. De Onate v. C.A. 250 SCRA 283).

Example: Love letter in a rape case which was lost during the trial but could be considered by the court
because its contents were read into the record during the trial and the complainant testified and was cross
examined on said letter (People v. Sanahon GR. 132724.)

Section 35. When to make an offer.

As regards the testimony of a witness, the offer must be made at the time the witness is called to testify
(Testimonial Evidence).

Documentary and Object evidence shall be offered after the presentation of a prty’s testimonial evidence.
Such offer shall be done orally unless allowed by the court to be done in writing.

There are two occasions when the testimony of a witness is offered:

First. As provided for in sec. 35 which states that “as regards the testimony of a witness, the offer must
made at the time the witness is called to testify”. This means that before the counsel for the proponent
starts asking question of the witness he has to make an offer as to what he expects to prove through the
witness.

Second. Is when the witness is asked questions by counsel for the proponent. What is essential in order that
an offer of testimony may be valid is that the witness be asked appropriate questions (People v. Yap 229
SCRA 787). Every question asked is by itself an offer of oral evidence with respect to the answer sought.

There is distinction between identification of documentary evidence and its formal offer as an exhibit of
documentary evidence.

The first is done in the course of the trial and is accompanied by the marking of the evidence as an exhibit.
The second is done only when the party rests its case and no before.

Section 36. Objection.

Objection to evidence offered orally must be made immediately after the offer is made.

Objection to a question propounded in the course of the oral examination of a witness shall be made as
soon as the grounds therefore shall be come reasonably apparent.

An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a
different period is allowed by the court.

In any case, the grounds for the objection must be specified.

Note:
The right to object to the admissibility of evidence is a mere privilege. As such the parties may waive such
right, expressly or impliedly. The party against whom the evidence is offered may interpose no objection to
its admission, or he may just keep silent, or he may proceed to cross examine the witness.

Evidence introduced without objection, whether or not such evidence is testimonial, documentary, real, or
circumstantial, becomes part of the record of the case and the parties are amenable to any favorable and
unfavorable effects resulting therefrom (PAL v. C.A. 226 SCRA 423).

If the witness answer immediately before the counsel can make his objection, or before the trial court can
make its ruling, counsel should move that the answer be stricken of the record stating the grounds thereof.

Objection to evidence cannot be raised for the first time on appeal. When the party desires the court to
reject the evidence offered, he must object thereto when the document is offered in evidence at the
conclusion is deemed waived and the document is admitted (People v. Uy 327 SCRA 335).

42
Evidence Illegally obtained, Objection.
The constitution provides that any evidence obtained in violation of the constitution of the fundamental
right of an individual against illegal arrest or unreasonable search and seizure, shall be inadmissible in
evidence for any purpose in any proceeding, being tainted. With illegality and a proverbial fruit of a
poisonous tree and should be excluded (People v. Valdez 341 SCRA 25).

Objection to extra ordinary confession or admission of accused in violation of rights under custodial
investigation.
Confessions or admissions of accused in custodial investigation, including written receipt by the suspect of
prohibited drugs without the latter having been informed of his constitutional rights and without the
assistance of a counsel must be independent and competent, that is, providing full protection to the rights of
the accused, shot of which the confession or admission id inadmissible (People v. Patungan GR. No.
138045). The exclusionary Rule applies to all persons under custodial investigation, both alien and citizens
alike.

Presumption of Regularity in the performance of duties.

The presumption of regularity in the performance of duties accorded to government functionary does not
apply during in-custody investigation, nor can it prevail over the constitutional right of the accused to be
presumed (People v. Camat 256 SCRA 52). However the accused can still be convicted if there are other
testimony and evidence showing the guilt beyond reasonable doubt (NBI v. Reyes A.M. No. MTJ-97-1120,
Feb. 21, 2000).

Admissibility of Evidence as exemptions to Exclusionary Rule.

An accused confession to a person not investigating officer undertaking a custodial investigation is
admissible. When an accused talked to a person in a private meeting, spontaneously, fully and voluntarily
confessing to his commission of a crime, the constitutional requirements in a custodial investigation do not
apply, hence, such confession is admissible in evidence against them, even when he did so without the
assistance of a counsel (People v. Cabiles 284 SCRA 199).

Confession of an accused at a time when he has not been in custody is admissible

The confession of an accused to the commission of a crime at a time when he has not been in custody is
admissible even when he has not bee informed of his rights to remain silent and to the assistance of
counsel, for the right to be given what is known as Miranda warnings applies only when the investigation
has ceased to be general inquiry into an unsolved crime and has begun to focus on the guilt of a suspect and
the latter is taken into custody (People v. Evangelista 256 SCRA 611).

The constitutional guarantees do not apply to:

1. Spontaneous statement not elicited through questioning by the authorities and 2. 2.Statement given
during an ordinary conversation; or
3. Statement given during media interviews, except where the latter acted under the direction or control of
the police (People v. Morada 635 SCRA 362).

Admissibility of Evidence obtained without warrant.

As a rule any evidence obtained without a judicial warrant is inadmissible for any purpose in any
proceedings, Except:
1. Search incident to lawful arrest;
2. Seizure of evidence in plain view;
3. Search of a moving vehicle
4. Search in violation of Customs laws (Hizon v. CA 265 SCRA 517);

Section 37. When repetition of objection unnecessary.

When it becomes reasonable apparent in the course of the examination of a witness that the question beings
propounded are of the same class as those which objection has been made, whether such objection was
sustained or overruled, it shall not be necessary to repeal the objection, it being sufficient for the adverse
party to record his continuing objection to such class of questions.

Section 28. Ruling.

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The ruling of the court must be given immediately after 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 made during
the trial and at such time as well give the party against whom it is made an opportunity to meet the situation
presented by the ruling.

The reason for sustaining or overruling an objection need not be stated. However, if the objection is based
on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground
or grounds relied upon.

Section 39. Striking out answer.

Should a witness answer the question before the adverse party had the opportunity to voice fully its
objection to the same, and such objection is found to be meritorious, the court shall sustain the objection
and order the answer given to be stricken off the record.

On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant,
to otherwise improper.

Every question asked of the witness is an offer or oral testimony. The counsel for the adverse party should
make his objection if the question is objectionable, such as when it is
1. leading or misleading or
2. it calls for hearsay evidence or
3. immaterial,
4. irrelevant,
5. impertinent, or
6. is hypothetical or
7. is so vague or indefinite as to make it a compound question or
8. the question calls for an opinion or conclusion of law or of fact.

Section 40. Tender of excluded evidence.

1.If documents or things offered in evidence are excluded by the court, the offeror may have the same
attached to or made part of the record.

2.If the evidence is excluded is oral, the offeror may state for the record the same and other personal
circumstances of the witnesses and the substance of the proposed testimony.

Note:
Tender of excluded Documents or exhibits.
Documents which we ruled out during the trial, for being inadmissible, cannot be considered on appeal.
For this reason, the party affected should ask the trial court to attached the document to the record of the
case, and submit such documents to the clerk of court for the purpose so that the appellate court may
review the ruling of the trial court on its inadmissibility and consider said document in disposing of the
issues of the appealed case (Banez v. C 59 SCRA 15) .

Tender of Excluded testimonial evidence.

With respect to testimonial evidence, Where the trial court grants the objection to presenting a witness
when the latter is called to the stand, the party seeking to present the witness should make a tender of the
testimony of the witness.

In the Exclusion of testimonial evidence:

The offer should state for the record the personal circumstances of the witness and the substance of his
proposed testimony.
Tender to rejected testimonial evidence may also be made where objections to specific questions are
sustained. If questions are asked of the witness and the objections thereto are sustained, the proponent
should make an offer of evidence, stating for the record what he would expect from the eyewitness had
been allowed to answer the questions to enable the appellate court to rule on the objection and on the
relevancy or materiality of the answer.

RULE 133

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WEIGHT AND SUFFICIENCY OF EVIDENCE

Weight and sufficiency of Evidence, generally.

Weight and admissibility distinguish.

Weight of evidence means the balance of evidence; the indication of greater amount of credible evidence
offered at the trial to support a fact in dispute.
-pertains to evidence already admitted and its tendency to convince and persuade;

Admissibility of evidence defends on its relevance and competence.

-refers to a question of whether or not the circumstance is to be considered at all.

Probative Value of evidence refers to the question of whether of not it proves an issue.

Sufficiency of Evidence means adequate evidence;

-refers to he question as to whether it amounts to the required quantum of evidence needed to arrive at a
decision in a civil, criminal, or administrative case, or to prove matters or defense or mitigation or to
overcome prima facie case or disputable presumption.

HOW PREPONDERANCE OF EVIDENCE DETERMINED

Section 1. Preponderance of Evidence. How determined.

In civil cases, the party having the burden of proof must establish his case by a preponderance of
evidence. In determining where the preponderance or superior weight or evidence on the issues involved
lies, the court may consider all the facts and circumstances of the case,
1. the witnesses’ manner of testifying,
2. their intelligence,
3. their means and opportunity of knowing the facts to which they testify, 4. the probability and
improbability of their testimony,
5. their interest for want of interest, and
6. also their personal credibility so far as the same may legitimately appear upon the trial.

The court may also consider the number of witnesses, though the preponderance is not necessarily with the
greater number.

Preponderance of Evidence- which is the degree of evidence required in civil cases, means that which is “of
greater weight” or more convincing than that which is offered to opposition to it. It is synonymous with the
terms “greater weight of evidence” or “greater weight of credible evidence”. It means probably the truth.

EQUIPOSE RULE IN CIVIL CASES.

Where the evidence on an issue of facts is in equipoise or there is doubt on which side the evidence
preponderates, the party having the burden of proof fails upon that issue. Therefore, as neither party was
able to make out a case, neither side could establish its cause of action and prevail with the evidence it had.
They are thus, no better off than before they proceeded to litigate, and, as a consequence thereof, the court
leave them as they are. In such case, courts have no choice but to dismiss the complaints or petitions
(Rivera v. CA 284 SCRA 673)

EQUIPOSE RULE IN THE PENAL LAW:

The if the inculpatory facts and circumstances are capable of two or more explanations one of which is
consistent with the innocence of the accused and the other consistent with his guilt and the evidence does
not fulfill the test of moral certainty, the same must be denied which result to the acquittal of the accused
(Abarques v. People G.R. 150762 Jan. 20, 2006).
The rule is that the accused is presumed innocent until the contrary is proven beyond reasonable doubt and
in case the evidence for guilt and conviction are equally balanced then the acquittal is inevitable (People v.
Corpus G.R. 74259 Fe. 14, 1991).

If Evidence are evenly balanced in criminal case

45
Where the evidence of the parties in criminal case are evenly balanced, the constitutional presumption of
innocence should tilt the scales in favor of the accused
and he must be acquitted (Corpus v. People 194 SCRA 73).

Section 2. Proof beyond reasonable doubt.

Proof Beyond Reasonable Doubt- which required for conviction of an accused in a criminal case. means
that which is logical and inevitable result of the evidence on record, exclusive of any other consideration,
of the moral certainty of the guilt of the accused or that degree of proof which produces conviction in an
unprejudiced mind.
It does not mean that such degree excludes possibility of error, produces absolute certainty. Moral
certainty is required.

The reasonable doubt should necessarily pertain to the facts constitutive of the crime charged.

The accused is presumed innocent until the contrary is proved beyond reasonable doubt.
The accused is presumed innocent until the contrary is proved beyond reasonable doubt, thus the state must
prove the guilt of the accused beyond reasonable doubt and this presumption prevails unless overturned by
competent and credible proof.

The state is required to establish by proof all the essential elements of the crime with which the defendant is
charged in the indictment, and to establish beyond reasonable doubt that the accused is guilty of said crime.

The constitutional presumption of innocence

The constitutional presumption of innocence is not an empty platitude mean only to embellish the bill of
rights. Its purpose is to balance the scales in what would otherwise be an uneven contents between the lone
individual pitted against the people and all the resources of at their command.

Identification of the accused.

Identification of the accused is the first duty of the court. There can be no conviction unless he has been
clearly identified as the author of the crime. However eye witness identification is not always reliable,
giving the possibility of misidentification.

Identification has three (3) components:

1. Witnessing a crime, whether as a victim or as a bystander, involves perception of an event occurring;
2. The witness must memorize the details of the vent;
3. The witness must be able to recall and communicate accurately(People v. Cabiles 341 SCRA 721).
Section 3. Extrajudicial Confession, not sufficient ground for conviction.
An extra judicial confession made by an accused, shall not be sufficient ground for conviction, unless
corroborated by evidence of Corpus Delicti.

Confession not sufficient by itself as basis of conviction.

Rule 130, section 33 provides that the declaration of an accused acknowledging his guilt of the offense
charged, or of any offense necessarily included therein, may be given in evidence against him.

Confession is a declaration made voluntarily and without compulsion or inducement by a person, stating or
acknowledging that he ahs committed or participated in the commission of the crime (People v. Fabro 177
SCRA 19).
Confession may be made
(1.)before or
(2.)during custodial investigation.
1. Confession before the accused is placed in a custodial investigation.
A confession before the accused is placed in a custodial investigation need not comply with the
constitutional requirements to be admissible in evidence against the confessant. All that is required is that
the confession is voluntary.

Extra-judicial confession.

46
Extra-judicial confession, once admissible, constitutes an evidence of higher order since it is supported by
the strong presumption that no person or normal mind would deliberately and knowingly confess to a crime
unless prompted by truth and his conscience (People v. Pamon 217 SCRA 501).

2. Confession during custodial Investigation.

Confession during custodial Investigation may be admissible against the confessant where the following
requisites are present:
1. The confession must be voluntary;
2. The confession must be made with the assistance of a competent and independent counsel;
3.The confession must be express;
4.The confession must be in writing (People v. Daniega 251 SCRA 626).

Confession of a crime is like a plea of guilty.

Confession of a crime is like a plea of guilty and care must be taken that the constitutional requirements of
confession of a person under custodial investigation are complied with (People v. Rayos GR. No. 133823).
Nonetheless, it is not a sufficient basis for conviction of the accused, unless corroborated by evidence of
corpus delicti.

Corpus Delicti is the body of the crime and in its primary sense, means a crime has actually been
committed.
-Means the substance of the crime.

Section 4. Circumstantial Evidence, sufficient for conviction if (Requisites)-

(a.)There is more than one circumstance;
(b.)The facts from which the inferences are derived are proven; and
(c.)The combination of all circumstances is such as to produce a conviction beyond reasonable doubt.

Circumstantial Evidence. It is the evidence which indirectly proves a fact in issue(People v. Ramos 240
SCRA 1919).

-Is that evidence which proves a fact or series of facts other than the fact in issue, which, if proved, may
tend by inference to establish the fact in issue (People v. Constante 12 SCRA 653).

Theory: The theory of circumstantial evidence is that indicia that are separately of little importance may, by
their concordant combination and cumulative effect to satisfy the requirements for proof beyond reasonable
doubt (People v. Delacruz 229 SCRA 754).

Section 5. Substantial evidence.

In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is
supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might
accept as adequate to injury a conclusion.

Substantial evidence defined- is more than a mere scintilla. it means a relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.

As a general rule, the Supreme Court, has laid down the following guidelines in scrutinizing the credibility
of witnesses.
1. the appellate court will not disturb the finding of the lower court, unless there is a showing that ir had
overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would
have affected the result of the case;

2.The finding of the trial court pertaining to the credibility of the witness are entitled to great respect and
even finality since it had the opportunity to examine their demeanor as they testified on the witness stand;

3. A witness who testified in a categorical, straightforward, spontaneous and frank manner and remained
consistent on cross examination is credible witness (People v. Cepeda 324 SCRA 290).

Requisites to consider evidence credible.

Evidence, to be believed, must

47
firstly proceed from the mouth of a credible witness, and
secondly, the testimony must be credible itself.
As it has been held that a witness who testifies in a categorical, straightforward, spontaneous and frank
manner and remains consistent on cross examination is a credible witness (People v. Cepeda 324 SCRA
290).

Instances of incredible or improbable testimonies are the following.

1. Bus traveling a low speed, as claimed, could not produce such extensive damaged as proved because this
demonstrative physical fact disproved the claim and showed that the bus was traveling at a high speed
(Roque v. Buan 21 SCRA 642).

2. The assertion of a witness that he heard a mastermind of a crime giving the instruction in a loud voice to
a person to kill another in the presence of several people runs counter to common experience that he who
plans and induces another to kill does so in secrecy and not in public (People v. alto 26 SCRA 342).

3. Where it was a dark in the night when the killing occurred, the testimony of a witness that they saw the
accused, wearing yellow-short sleeve polo shirt, with khaki pants and with no hat cannot inspire belief
(People v. Cunanan 19 SCRA 769).

4. When lone testimony enough to convict the testimony of a witness who is himself a victim of the crime
and who accurately identified the accused, gave a straightforward and unequivocal account of the stabbing
incident and who was actuated by no improper motive is sufficient to convict an accused, as against the
defense of alibi(People v. Narca 339 SCRA 76).

5. When Lone Witness’ Testimony enough to convict. It has been held that the testimony of a single
eyewitness, if positive and credible is sufficient to support a conviction even of a charge of murder (People
v. Bromo, 318 SCRA 760).

Credibility of a child witness.

Children of sound mind are more observant of incident which take place within their view within their view
than other person (People v. Mesias 199 SCRA 20). Their testimony s therefore, likely to be more correct in
detail than that of other person, and where once established that they understood that nature and character
of an oath, full faith and credit should be given their testimony (People v. Montero, 277 SCRA 194).

Guiding principles in RAPE cases.

1. An accusation for rape can be made with facility; it is difficult to prove but more difficult for the person
accused, though innocent, to disprove;

2. In view of the intrinsic nature of the crime of rape where two persons are usually involved, the testimony
of the complainant must scrutinized with extreme caution;

3.The evidence of the prosecution must stand or fall on its own merits and cannot be allowed to draw
strength from the weakness of the evidence of the defense (People v. Restoles, 339 SCRA 40).

Justification for rape case.

It has been held that it is hardly persuasive that a young barrio lass, virtually innocent of mundane ways
and means would, for no reason at all, conjure a charge of defilement, undergo a medical examination of
her private parts and willingly bring disgrace to her family, unless she is triggered by a righteous desire to
seek justice of the wrong committed against her.

Rape case of a daughter against her father.

A rape victims testimony is entitled to greater weight when she accuses a close relative of having raped her,
as in the case of a daughter against her father. For it is not in accord with human experience to charge the
girl’s father with rape and expose her to public scrutiny and humiliation (People v. Puzon, 339 SCRA 164).

Crying of rape victim during testimony is a judicial notice.

Crying of rape victim during testimony is a judicial notice and is an evidence of a credibility (People v.
Quilatan 341, SCRA 247).

Delay in filing Rape case

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Delay in filing Rape case does not necessarily impair the credibility of the victim. Experience teaches that
many victim of rape never complain or file criminal charge against the rapist, for they prefer to silently bear
the ignominy and pain, rather that reveal their shame to the world and risk the offender’s making good on
his threat (People v. Razonable 330 SCRA 562).

Rape can be committed in a crowded places.

Rape can be committed even in places where people congregates, in parks, along the roadside, within
school premises, inside a house where there are other occupants, and even same room in the presence of
other members of the family. An overpowering wicked urge has been shown not to be deterred by
circumstances of time or place (People v. Lustre, 330SCRA 189).

Documents and Testimonial Evidence.

Generally, documentary evidence prevails over testimonial evidence, the reason being that the latter is easy
fabrication (GRSIS v. CA, 222 SRA 685)

Affidavits and Testimony of a witness.

General rule. Is that testimonial evidence in court carries more weight than affidavits. Testimonies given
during trials are much more precise and elaborated than those stated in sworn statement and will prevails
(People v. Pida 249 SCRA687).

Inconsistencies or Contradictions of witnesses.

On minor matters: The rule is that minor inconsistencies on trivial matters or innocent lapses do not affect
the credibility of a witness. On the contrary, they may be considered as badges of veracity or manifestation
of truthfulness, on material points in the testimony. Minor inconsistencies even tend to strengthen rather
than weaken the credibility of a witness because it erase any suspicion of rehearsed testimony (People v.
Hernani, 346 SCRA 73).

On material matters: Self contradictions of a witness may impair his credibility (People v. Meneque, 339
SCRA 2000).This rule applies not only to self contradictions of a witness but also to contradictory
testimonies of witnesses.

Recantation of a witness.
To recant means to withdraw or repudiate formally and publicly;
To withdraw or renounce a prior statement.
To retract means to take back;
To retract an offer is to withdraw before acceptance;
Renunciation usually applies to a repudiation by a complainant or a witness, either for a prosecution of the
defense, who has previously given an extrajudicial statement or testimony in court;
Repudiation may in writing or by testifying on the witness stand (Alonte v. Savillano, 287 SCRA 245).

Recantation does not necessarily cancel an earlier declaration, but like any other testimony the same is
subject to the test of credibility, otherwise it could make solemn trial a mockery and place the investigation
of truth at the mercy of the unscrupulous witnesses (People v. Davatos 229 SCRA 647)

Requisites for Alibi to be credible:

1. The accused must establish that he was somewhere else when the crime was committed;
2. That it was physically impossible for him to have been at the scene of the crime at the time of it
commission (People v. Suza, 330 SCRA 167).

Physical Impossibility refers to the distance between the (1.) place where the accused was and (2.) where
the crime transpired and the place it was committed, as well as (3.) the facility of access between the two
places (People v. Marquez,347 SCRA 510).

Quantum of Proof in defense or mitigation in criminal case.

As a general rule. The doctrine of reasonable doubt applies only to criminative, not exculpatory facts; the
accused is not required to establish matters in mitigation or defenses beyond a reasonable doubt, nor in
most jurisdiction is he required to establish the truth of such matters by a preponderating evidence.(People
v. Geron, 281 SCRA 36).

Entrapment and Instigation.

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One of the means by which peace officers trap and capture lawbreakers is entrapment.
1. In entrapment, ways and means are resorted to for the purpose of trapping and capturing the lawbreakers
in the execution of their criminal plan.

a. Entrapment is not a bar to a prosecution;

b. The mens rea originates from the mind of the criminal, the idea na resolve to commit a crime comes
from him.

Mens rea means the idea to commit a crime.

c. It is sanctioned by the law to apprehend the lawbreakers.

2. In instigation, in which the instigator practically induces the would be defendant into the commission of
the offense, and himself becomes a co-principal
Instigation, the defendant would have to be acquitted.

a. In instigation the law officers conceive the commission of the crime and suggest it to the accused, who
adopts the idea and carries it into execution.
b. Instigation is proscribed and the police officers becomes liable criminally for the crime committed.

Buy-bust operation is a form of entrapment

Buy-bust operation Is a form of entrapment employed by the peace officers to catch a malefactor in
flagrante delicto and is not prohibited by the Revised Penal Code (People v. Mortos 226 SCRA 29).

Informant in buy-bust Operation.

The police officers usually get information on the drug selling activities through information whose identity
is kept secret. The general rule is that the non presentation of an informant as witness is not necessary,
where there are sufficient evidence to convict and the testimony of the informant is merely corroborative
(People v. Tangliben, 184 SCRA 229). However, when there is only one prosecution witness, a police
officer, whose testimony is doubtful, as when he conducted the buy bust operation he had in his possession
marijuana and there was a doubt as to whether the buy bust operation was at all conducted, the failure of
the prosecution to place on the witness stand the informant to testify on the details of the buy bust operation
seriously impaired the credibility of the lone witness, and entail the accused for an acquittal (People v.
Samson,219 SCRA 364) .

Police officer as Poseur-buyer known to the accused.

A police officer testified that he acted as poseur buyer of the accused. However, evidence showed that the
accused knew the poseur-buyer as a police officer, as he previously witness his friend being arrested by
said officer for selling shabu. The court rules that it could not, by any stretch or imagination, accept that the
accused could have still sold shabu to the officer knowing the obvious risk involved, he having witness the
arrest of his friend by the same officer for selling shabu. It was highly inconceivable that appellant would
fall prey to the same arresting officer (People v. Briones, 266 SCRA 254).

Accused openly selling shabu to strangers are improbable and incredible

Similarly, the testimonies of prosecution witnesses that the accused was openly selling shabu to strangers
are improbable and incredible because such nefarious deals are carried on with utmost secrecy or whispers
to avoid detection (People v. Pagaura, 267 SCRA 17).

Paraffin Test
Paraffin Test is not conclusive as to whether a person fired a gun, the result of the examination of the
victim and the assailant immediately after the incident to determine the presence of nitrates is of
importance in some circumstances. The person using tobacco may also have nitrate or nitrate deposit on
his hand since these substance are present in the process of combustion of tobacco (People v. Dianos,
297SCRA 191).

Sources of nitrates such as:

1. Fertilizers, 3. Explosives, 5. Leguminous plants, such as: peas, beans, and alfalfa.
2. Fireworks, 4. Pharmaceuticals and

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