NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
UNIVERSITY OF SANTO TOMAS
Faculty of Civil Law
A.Y. 2012-2013
First Semester
LAW ON EVIDENCE
Chapter 1
PRELIMINARY CONSIDERATIONS
A. Miscellaneous Basic Principles
RULE 128
General Provisions
SECTION 1.Evidence defined. — Evidence is the means,
sanctioned by these rules, of ascertaining in a judicial
proceeding the truth respecting a matter of fact. (1)
Note: Not every circumstance which affords an inference as
to the truth or falsity of a matter alleged is considered
evidence.
Q: What is required for a circumstance to be considered as
evidence?
A: It must be “sanctioned” or allowed by the Rules of Court. It
is not evidence if it is excluded by law or by the Rules even if
it proves the existence or non-existence of a fact in issue.
Thus, hearsay evidence, a coerced extrajudicial confession of
the accused and evidence obtained in violation of
constitutional rights even if ultimately shown to correspond
to the truth is not a n evidence.
The definition considers evidence not as an end in itself but
merely as a “means” of ascertaining the truth of a matter of
fact. This applies to judicial proceedings.
Q: What is the purpose of evidence?
A: It is to ascertain the truth respecting a matter of fact in a
judicial proceeding. Litigations cannot be properly resolved
by suppositions, or even presumptions, with no basis in
evidence. The truth must be determined by the rules for
admissibility and proof. Thus, the parties must prove a fact in
issue thru the presentation of admissible evidence.
Truth as the purpose of evidence
Yet, the truth referred to in the definition is not necessarily
the actual truth but one aptly referred to as the judicial or the
legal truth. Actual truth may not always be achieved in
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judicial proceedings because the findings of the court would
depend on the evidence presented before it based on the
accepted rules for admissibility.
Rule 132, Sec. 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. (35)
Thus, a supposed evidence that would undoubtedly show the
innocence of the accused will not be considered if not
formally offered in evidence.
Q: When is evidence required? When is it not required?
A: As a means of proving fact, its introduction is needed when
the court has to resolve a question of fact. Where no factual
issue exists in a case, there is no need to present evidence
because where the case presents a question of law, such
question is resolved by mere application of the relevant
statutes or rules in this jurisdiction to which no evidence is
required.
Note: When the pleadings in a civil case do not tender an
issue of fact, a trial need not be conducted since there is no
more reason to present evidence. The case is then ripe for
judicial determination through a judgment on the pleadings
(Rule 34).
Evidence may also be dispensed with by agreement of the
parties. They may agree in writing upon the facts involved in
the litigation and to submit the case for judgment upon the
facts agreed upon, without the introduction of evidence (Rule
30, sec. 6).
It is also not required on matters of judicial notice (Rule 129,
sec.1) and on matters judicially admitted (Rule 129 Sec. 4).
Q: When are the Rules of evidence applicable?
A: They apply only to judicial proceedings.
Note: Please refer to Rule 1, sec.4.
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Kenneth & King Hizon (3A) _____________________________________________
Technical rules of procedure and evidence are not strictly
applied and administrative due process cannot be fully A: According to such principle, as a general policy, the rules of
equated with due process in strict judicial terms. Also, evidence shall be the same in all courts and in all trials and
reliance on the technical rules of evidence in labor cases is hearings.
misplaced.
Sec. 2.Scope. — The rules of evidence shall be the same in
Ong Chia v. Republic (328 SCRA 749) all courts and in all trials and hearings, except as otherwise
provided by law or these rules. (2a)
The rule on formal offer of evidence is not applicable to a
case involving a petition for naturalization unless applied by Q: Distinguish between evidence in civil cases from evidence
analogy or in a suppletory character and whenever in criminal cases.
practicable and convenient.
CIVIL CASES CRIMINAL CASES
Sasan, Sr. v. NLRC (G.R. No. 176240, 2008) The party having the burden The guilt of the accused has
of proof must prove his claim to be proven beyond
Technical rules of evidence are not binding in labor cases. by a preponderance of reasonable doubt.
Labor officials should use every reasonable means to evidence.
ascertain the facts in each case speedily and objectively, An offer of compromise is An offer of compromise by
without regard to technicalities of law or procedure, all in the not an admission of any the accused may be received
interest of due process. The rules of evidence prevailing in liability, and is not admissible in evidence as an implied
courts of law or equity are not controlling in labor cases. evidence against the offeror admission of guilt except
(Rule 130, Sec.27). those involving quasi-
Clarion Printing House, Inc. v. NLRC (461 SCRA 272) offenses (criminal
negligence) or those allowed
The NLRC is not precluded from receiving evidence, even for by law to be compromised
the first time on appeal, because technical rules of procedure (Rule 130, Sec. 27)
are not binding in labor cases. Concept of presumption of The accused enjoys the
innocence does not apply constitutional presumption
Bantolino v. Coca-Cola Bottlers, Inc. (403 SCRA 699) and generally there is no of innocence (Sec. 14, Article
presumption for or against a 3).
The rules of evidence are not strictly observed in proceedings party except in cases
before administrative bodies where decisions may be provided for by law (Art.
reached on the basis of position papers only. In this case, the 1756-common carrier).
court disregarded the findings of the CA which considered the
affidavits of the petitioners as mere hearsay and thus could Distinction between Proof and Evidence
not be admitted in evidence against their employers. The
Court unequivocally ruled that in a labor case, it is not Q: What is proof?
necessary for an affiant to appear and testify and be crossed-
examined by counsel for the adverse party on his affidavit. A: It is not the evidence itself. There is proof only because of
Administrative bodies are not bound by the technical rules of evidence. It is merely the probative effect of evidence and is
procedure and the rules obtaining in the courts of law. the conviction or persuasion of the mind resulting from
consideration of the evidence.
Within the field of administrative law, while strict rules of
evidence are not applicable to quasi-judicial proceedings, On the other hand, evidence is the medium or means by
nonetheless, in adducing evidence constitutive of substantial which fact is proved or disproved. Proof is the effect of
evidence, the basic rule that mere allegation is not evidence evidence because without evidence there is no proof.
cannot be disregarded.
Falsus in Uno, Falsus in Omnibus
Application of the Rules on Electronic Evidence
It means “false in one thing, false in everything.” It means
Sec.2. Cases covered.- These Rules shall apply to all civil that if the testimony of a witness on a material issue is
actions and proceedings, as well as quasi-judicial an willfully false and given with an intention to deceive, the jury
administrative cases. may disregard all the witness’ testimony. The witness in such
case is considered unworthy of belief as to all the rest of his
Scope of the Rules of Evidence evidence if he is shown to have testified falsely in one detail.

Q: Explain the Principle of uniformity.

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Yet, this is not an absolute rule of law and is in fact rarely
applied in modern jurisprudence. It deals only with the
weight of the evidence and is not a positive rule of law. The
modern trend favors more flexibility when the testimony of a
witness may be partly believed and partly disbelieved
depending on the corroborative evidence presented at the
trial (People v. Negosa).
Q: When can such maxim be applied?
A: Before it can be applied, it must be shown that the witness
have willfully falsified the truth on one or more material
points. The principle presupposes the existence of a positive
testimony on a material point contrary to subsequent
declarations in the testimony.
People v. Letigio (268 SCA 227)
The above maxim does not lay down a categorical test of
credibility. While the witness may differ in their recollections
of an incident, it does not necessarily follow from their
disagreements that all of them should be disbelieved as liars
and their testimonies completely discarded as worthless.
People v. Pacapac (248 SCRA 77)
The maxim is not a positive rule of law or of universal
application. It should not be applied to portions of the
testimony corroborated by other evidence, like where the
false portions could be innocent mistakes. It is not mandatory
but merely sanctions a disregard of the testimony of a
witness of the circumstances so warrant.
Alibi
As a defense, alibi is inherently weak and crumbles in the
light of positive identification by truthful witnesses. It is
evidence negative in nature and self-serving and cannot
attain more credibility than the testimonies of prosecution
witnesses who testify on clear and positive evidence.
Alibi may also serve as a basis for acquittal if it can really be
shown by clear and convincing evidence that it was indeed
physically impossible for the accused to be at the scene of the
crime at that time.
It cannot prevail over the positive identification of the
accused as perpetrator of the crime. Such positive
identification destroys the defense of alibi and renders it
impotent, especially where the such identification is credible
and categorical (People v. Dela Cruz, G.R. No. 173308).
Q: What must be established for the defense of alibi to
prosper?
A:
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1. The presence of the accused in another place at the time
of the commission of the offense; and
2. The physical impossibility for him to be at the scene of
the crime at the time of its commission.
Note: It is not enough that he is somewhere else when the
crime was committed. He must prove that it was physically
impossible for him to be present at the crime scene or its
immediate vicinity at the time of its commission.
People v. Abellera, G.R. No. 166617
The accused should have proven that he was in some place
where it was physically impossible for him to at the locus
criminis during the commission of the crime.
People v. Agustin, G.R. No. 175325
When the distance between the place where the crime was
committed and the accused said he was only 1 and ½ km, the
accused, who at the time had the use of a motorized vehicle,
has not established the physical impossibility.
Alibi is not always false and without merit. Sometimes, the
fact that the accused was somewhere else may just be the
plain and unvarnished truth.
Frame Up
Frame up is also viewed with disfavor as it can easily be
concocted and is commonly used as a defense in most
prosecutions arising from the Dangerous Drugs Act. The legal
presumption that official duty has been regularly performed
exists. For such claim to prosper, the defense must adduce
clear and convincing evidence to overcome the presumption
that government officials have performed their duties in a
regular and proper manner (People v. Del Monte).
Self-Defense
It is likewise inherently weak because it can easily be
fabricated.
Alibi is one of the weakest defenses due to its being capable
of easy fabrication. It cannot prevail over the positive
identification of the accused as perpetrator of the crime. For
it to prevail, the defense must establish that was physically
impossible for the accused to have been at the scene of the
crime at the time of its commission, and not merely that the
accused was somewhere else.
Delay and initial reluctance in reporting a crime
Delayed reporting by witnesses of what they know about the
crime does not render their testimonies false or incredible,
for delay may be explained by the natural reticence of people
and their abhorrence to get involved in a criminal case. More
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than this, there is always the fear of reprisal. This is a matter
of judicial notice (People v. Navarro, 297 SCRA 331).
Delay in reporting an incident of rape is not necessarily an
indiction that the charge is fabricated; it is possible for a rape
victim to go through what psychologists describe as a “state
of denial” which is a way of coping with the overwhelming
emotional stress of an extremely shocking event.
Also, it may be on account of fear of the threats posed by her
assailant. It must be viewed in the context of the victim’s
perception and judgment not only at the time of the
commission of the crime but also at the time of the time
immediately thereafter. A rape victim is sometimes
overwhelmed by fear rather than by reason.
Ingal v. People (G.R No. 173282)
Initial reluctance to volunteer information regarding a crime
due to fear of reprisal is common enough that it has been
judicially declared as not affecting a witness’ credibility. Also,
people react differently to emotional stress. There is simply
no standard form of behavioral response that can be
expected from anyone when confronted with a strange,
startling or frightful occurrence.
See: People v. Teehankee, Jr. (249 SCRA 54); People v. Ortoa
(GR. No. 176266); People v. Satioquia (414 SCRA 60);
People v. Sanidad (402 SCRA 381)
Delay by a witness in divulging what he or she knows about a
crime is not by itself a setback to the evidentiary value of
such witness’ testimony, where the delay is sufficiently
justified by any acceptable explanation.
Also, Fear of reprisal or social humiliation are sufficient
explanations. Filipinas, especially those in the rural areas, are
by nature shy and coy, and rape stigmatizes the victim, not
the perpetrator. Delay is not a sign of fabrication.
Positive and Negative Defenses
In Philippine jurisprudence, a positive testimony normally
enjoys more weight than a negative testimony. A testimony
that a fact exists enjoys more weight than a testimony that
asserts that the same act does not exist.
Positive evidence is more credible than negative evidence.
The reason for this rule is that the witness who testifies to a
negative may have forgotten what actually occurred, while it
is impossible to remember what never existed (Gomez v.
Gomez-Samson, G.R. No. 156282).
A denial evidence is the weakest defense and can never
overcome a positive testimony particularly when it comes
from the mouth of credible witness. Evidence that is negative
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is self-serving in nature and cannot attain more credibility
than the testimonies of witnesses who testify on clear and
positive evidence. It is inherently weak vis-à-vis positive
identification.
Factum Probans and Factum Probandum
Evidence signifies a relationship between 2 facts:
a. The fact or proposition to be established (Factum
probandum); and
b. Facts or material evidencing the fact or proposition
to be established (Factum probans).
Q: What is Factum Probandum?
A: It refers to the fact to be proved; the fact which is in issue
and to which the evidence is directed.
Q: What is Factum Probans?
A: It is the probative or evidentiary fact tending to prove the
fact in issue.
E.g. Kimmy claims to have been injured by the negligence of
Dora who denies having been negligent, the negligence of
Dora and the causal connection between such negligence,
and the injuries of Kmmy taken as a whole, constitute the
factum probandum of the suit. The evidence offered by
Kimmy constitute the materials to prove liability of D. The
totality of the evidence to prove the liability refers to the
factum probans.
Yet, factum probandum in some cases may be affected by the
judicial admissions of a party. If the factum probandum
“signifies the fact or proposition to be established,” then
matters of judicial notice, conclusive presumptions and
judicial admissions cannot qualify as parts of factum
probandum of a particular case, because such matters need
not be established or proved.
Factum probandum refers to the elements of a cause of
action from the point of view of the plaintiff and the
elements of the defense from the standpoint of the
defendant.
Q: What are the factum probandum in a suit for a collection
of money, in the absence of any admission by the
defendant?
A:
1. The existence of the debt of the defendant;
2. The maturity of the debt;
3. The demand made by the plaintiff upon the defendant to
pay; and
4. The failure to pay despite the demand.
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NOTE: From the side of the defendant, the fact of payment of
the obligation or the prescription of the debt or the elements
of any defense he may interpose would constitute the factum
probandum.
Q: Under Art. 2176 of the Civil Code, in every tort case, what
should be proven by the plaintiff?
A:
1. The damages suffered by the plaintiff
2. The fault or negligence of the defendant or some other
person for whose act he must respond
3. The connection of cause and effect between the fault
and the damages incurred.
Art. 2176, NCC
XXX
Q: In criminal cases, what does factum probandum include?
A: In criminal cases, factum probandum includes all matters
that the prosecution must prove beyond reasonable doubt in
order to justify a conviction.
Q: In case or robbery, what matters should be proven?
A:
1. That there be personal property belonging to another
2. That there is unlawful taking of that property
3. That the taking is with intent to gain
4. That there is violence against or intimidation of persons
or force upon things (Art. 293, RPC)
Q: How about in case of illegal possession of firearms and
explosives?
A:
1. The existence of the subject firearm or explosive which
may be proved by the presentation of the subject firearm
or explosive or by the testimony of witnesses who saw
accused in the possession of the same;
2. The negative fact that the accused had no license or
permit to own or possess the firearm or explosive which
fact may be established by the testimony or certification
of a representative of the PNP Firearms and Explosives
Unit that the accused has no license or permit to possess
the subject firearm or explosive.
Q: How about in case of prosecution for illegal sale of
prohibited or dangerous drugs?
A:
1. The identity of the buyer and the seller, the object, and
the consideration
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2. The delivery of the things sold and the payment therefor.
Q: Is the presentation of the informant in illegal drug cases
indispensable for a successful prosecution?
A: No, because his testimony would merely be corroborative
and cumulative.
Multiple admissibility
Q: When is there multiple admissibility?
A: There are times when a proffered evidence is admissible
for two or more purposes. Thus, depending upon the
circumstances, the declaration of a declaration may be
admissible for several purposes. It may be offered as a dying
declaration, as part of the res gestae, or as a declaration
against interest.
Evidence may also be admissible against one party but not
against another. An extrajudicial statement of a robbery
subject is not admissible against his co-accused under the res
inter alios acta rule but may be admissible against the
declarant himself as an admission pursuant to Sec. 26 of Rule
130.
NOTE: If the testimony is offered to prove that the subject
was completed pursuant to the contract, it cannot be offered
to prove that the project was delayed.
It must be noted that the purposes for which evidence is
offered must be specified because such evidence may be
admissible for several purposes under the doctrine of
multiple admissibility, otherwise the adverse party cannot
interpose the proper objection.
Q: May a private document be offered and admitted in
evidence both as documentary and as object evidence?
A: A private document may be offered and admitted both as
documentary evidence and as object evidence depending on
the purpose for which the document is offered. If offered to
prove its existence, condition or for any purpose other than
the contents of a document, the same is considered as an
object evidence. When a private document is offered as proof
of its contents, the same is considered as a documentary
evidence (Sec. 2, Rule 130 of Rules of Court).
Q: To be part of the res gestae, what is the requirement?
A: The statement should have been made by a person while a
startling occurrence is taking place or immediately prior to or
subsequent to such startling occurrence.
Q: How about for a dying declaration?
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A: The statement should have been made while the declarant
was conscious of an impending death. The facts of the case
do not clearly show that this essential element of a dying
declaration was met.
Q: When A was stabbed on the chest during a street brawl,
he instinctively shouted for help. B, who was nearby, heard
the shout and immediately ran towards A who, upon inquiry
by B, stated that C has stabbed him. What rule or rules of
evidence could B’s testimony be received, if A dies?
A: The testimony could be admitted either as a dying
declaration or as part of the res gestae.
Conditional Admissibility
Q: What is conditional admissibility?
A: It happens frequently enough that the relevance of a piece
of evidence is not apparent at the same time it is offered, but
the relevance of which will readily be seen when connected
to other pieces of evidence not yet offered. The proponent of
the evidence may ask that the evidence be conditionally
admitted in the meantime subject to the condition that he is
going to establish its relevancy and competency at a later
time. If the connection is not shown as promised, the court,
may upon motion of the adverse party, strike out from the
record the evidence that was previously conditionally
admitted.
Curative admissibility
Q: What is the doctrine of curative admissibility?
A: It allows a party to introduce otherwise inadmissible
evidence to answer the opposing party’s previous
introduction of inadmissible evidence if it would remove any
unfair prejudice caused by the admission of the earlier
inadmissible evidence (Adams v. Burlington, 1993).
Thus, a party who first introduces either irrelevant or
incompetent evidence into the trial cannot complain of the
subsequent admission of similar evidence from the adverse
party relating to the same subject matter.
Q: In an action for damages arising from a car accident, the
plaintiff, despite objections from the defendant, introduced
evidence to show that in the past, the defendant had
injured pedestrians because of his negligence. Is this
evidence admissible? Discuss the effect of the doctrine of
curative admissibility.
A: This kind of evidence is admissible because evidence that a
person did certain thing at one time is not admissible to
prove that he did the same thing. If we follow the doctrine of
curative admissibility, the court may be asked to give the
party against whom the evidence was admitted the chance to
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contradict or explain the alleged past acts he committed and
to show evidence of past acts of diligence of the defendant to
counteract the prejudice which the improperly admitted
evidence may have caused.
NOTE: If the hearsay evidence prejudicial to the defendant is
erroneously admitted despite the objection, under the
principle of curative admissibility, the court shall allow
hearsay evidence favorable to the same defendant.
Q: Does the doctrine of curative admissibility refer to a
situation where incompetent evidence was erroneously
received by the court despite the objection from the other
party?
A: Local case law does not extensively address the matter but
some American cases, they hold that the doctrine of curative
admissibility, in its broadest form, allows a party to introduce
otherwise inadmissible evidence when necessary to counter
the effect of improper evidence previously admitted by the
other party without objection. Another case also allowed
curative evidence even if there was a failure to object to the
objectionable document.
It is submitted in our jurisdiction, the doctrine of curative
admissibility should not be made to apply where the evidence
was admitted without objection because the failure to object
constitutes a waiver of the admissibility of the evidence. In
our jurisdiction, admissible evidence not objected to become
admissible.
NOTE: An objection to an otherwise inadmissible evidence is
not merely suggested but required by the Rules of Court.
Sec. 36, Rule 130, Rules of Court:
Objections to evidence offered orally must be made
immediately after the offer is made and objections to
questions propounded in the course of the oral examination
of the witnesses shall be made as soon as the grounds
therefor shall become apparent.
NOTE: It is only where the objection was incorrectly
overruled, the court should allow the other party to introduce
evidence to contradict the evidence improperly admitted in
order to cure the prejudice caused to the other party against
whom the offered evidence was erroneously admitted.
Common reason suggests that there is a waiver, there is no
defect to cure.
Q: What is the reason for the limitation as to the application
of the doctrine of curative admissibility?
A: If no limitations are placed on the doctrine of curative
admissibility, the doctrine will predictably be open to abuse
and will encourage counsel not to object to an admissible
evidence to “open the door” for him to introduce
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inadmissible evidence. The more logical rule should be done
which will not allow a party to be heard through the offering
of inadmissible evidence if he declines or fails to timely object
to the other party’s inadmissible evidence.
One American case puts it: “A breach of the rules of evidence
by one party does not suspend those rules with respect to the
other party”
Direct and Circumstantial Evidence
Q: What is direct evidence?
A: It means evidence which if believed, proves the existence
of a fact in issue without inference or presumption. It proves
a fact without the need to make an inference from another
fact.
Q: What is circumstantial evidence?
A: It indirectly proves a fact in issue through an inference
which the fact finder draws from the evidence established
(People v. Matito).
When the evidence is circumstantial, a fact is established by
making an inference from a previously established fact. The
court, thus, uses a fact from which an assumption is drawn.
Conviction by circumstantial evidence
Q: In criminal cases, circumstantial evidence may be
sufficient for conviction if certain requisites are present.
What are they?
A:
1. There is more than one circumstance
2. The facts from which inferences are derived are proven
3. The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.
NOTE: A conviction based on circumstantial evidence must
exclude each and every hypothesis consistent with
innocence. Hence, if the totality of the circumstances
eliminates beyond reasonable doubt the possibility of
innocence, conviction is proper.
People v. Bernal 388 SCRA 211
Circumstantial evidence may be a basis for conviction and
such conviction can be upheld provided the circumstances
proven constitute an unbroken chain which leads to one fair
and reasonable conclusion that points to the accused to the
exclusion of all others as the guilty person.
Circumstantial evidence is not a weaker defense vis-à-vis
direct evidence. As to probative value, the Court considers
circumstantial evidence of a nature identical to direct
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evidence because no greater degree of certainty is required
when the evidence is circumstantial than when it is direct. In
both types of evidence what is required is proof beyond
reasonable doubt.
People v. Darilay (421 SCRA 45)
Direct evidence is not dispensable to prove a crime charged.
It may be proved by circumstantial evidence.
Bastian v. CA (G.R No. 160811)
Direct evidence of the commission of a crime is not the only
basis on which a court draws its findings of guilt. Established
facts that form a chain of circumstances can lead the mind
intuitively or impel a conscious process of reasoning towards
a conviction.
If direct evidence is insisted on under all circumstances, the
prosecution of vicious felons who commit heinous crimes in
secret or secluded places will be impossible to prove (People
v. Sevilleno).
People v. Corpuz (412 SCRA 479)
When the prosecution’s evidence rests on circumstantial
evidence alone, it is imperative that the chain of
circumstances establish the guilt of the accused beyond
reasonable doubt. Accordingly, where the evidence admits 2
interpretations one of which is consistent with guilt and the
other with innocence, the accused must be acquitted.
Amora v. People (G.R. No. 154466)
Direct evidence is not the sole means of establishing guilt
beyond reasonable doubt. Established facts that form a chain
of circumstances can lead the mind intuitively or impel a
conscious process of reasoning towards a conviction. Indeed,
rules on evidence and principles in jurisprudence have long
recognized that the accused may be convicted through
circumstantial evidence.
Q: When is circumstantial evidence resorted to?
A: When to insist on direct testimony would ultimately lead
to setting felons free. For it to be sufficient, the following
requisites must be present:
Xxx
c. The combination of all circumstances results in a moral
certainty that the accused, to the exclusion of all others,
is the one who has committed the crime.
People v. Ochate 385 SCRA 353
Q: In the appreciation of circumstantial evidence, what are
the 4 guidelines?
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A:
1. It should be acted upon with caution;
2. All the essential facts must be consistent with the
hypothesis of guilt;
3. The facts must exclude every other theory but that of
guilt; and
4. Facts must establish such a certainty of guilt of the
accused to convince a judgment beyond a reasonable
doubt that the accused is the one who committed the
offense.
Flight or non-flight of the Accused
The fact that the appellants never fled the locality where the
crime was committed is not by itself a valid defense against
the prosecution’s allegations because non-flight does not
signify innocence. Non-flight is simply inaction. While flight
indicates guilt, non-flight does not mean innocence
(Gulmatico v. People).
The defense of non-flight cannot prevail against the weight of
positive identification of the appellants (People v. Dacibar).
Flight alone is not a reliable indicator of guilt without other
circumstances because flight alone is inherently ambiguous
(Valdez v. People). Yet, in a case where the accused escaped
from detention during the pendency of the case, flight was
considered as an indication of guilt or of his guilty mind: “xxx
the wicked flee even when no man pursues, but the righteous
stand fast as bold as a lion (People v. Isang).
Cumulative Evidence v. Corroborative Evidence
Q: What is cumulative evidence?
A: It refers to evidence of the same kind and character as
that already given and that tends to prove the same
proposition. E.g. Subsequent testimonies of B and C after the
testimony of A.
Q: What is corroborative evidence?
A: It is one that is supplementary to that already given
tending to strengthen or confirm it. It is additional evidence
of a different character to the same point. It is such evidence
which tends to confirm, validate, or strengthen evidence
already presented. E.g. Findings of the crime laboratory that
the gun bears only the fingerprints of the accused which is
collaborative of the testimony of A.
Note: It is usually different from that previously offered but
tends to prove the same fact. E.g. testimonial evidence from
an eye witness and testimony from an expert who did not
personally witness the signing of the document.
_____________________________________________
Corroborative testimony is not always required. There is no
law which requires that the testimony of a single witness has
to be corroborated, except where expressly mandated in
determining the value and credibility of evidence. Witnesses
are to be weighed, not numbered (People v. Pabalan).
The testimony of a sole eyewitness is sufficient to support
conviction so long as it is clear, straightforward and worthy of
credence by the trial court (People v. Rama).
Q: When is corroborative evidence necessary?
A: It is only when there are reasons to suspect that the
witness falsified the truth or that his observations are
inaccurate (Mangangey v. Sandiganbayan).
Corroboration of the testimony of a child witness
Under the Rule on Examination of a Child Witness,
corroboration shall not be required of a testimony of a child.
His testimony if credible by itself, shall be sufficient to
support a finding of fact, conclusion, or judgment subject to
the standard of proof required in criminal and non-criminal
cases (People v. Rama).
Positive and Negative Evidence
These categories of evidence have been normally associated
with testimonial evidence but there is no rule which
precludes their application to other forms of evidence.
Q: When is it considered as positive evidence?
A: It is positive when a witness affirms in the stand that a
certain state of facts does not exist or that a certain event
happened.
Q: When is it considered as negative?
A: When the witness states that an event did not occur or
that the state of facts alleged to exist does not actually exist.
NOTE: Positive and negative evidence may likewise refer to
the presence or absence of something. Thus, the presence of
fingerprints of a person in a particular place is positive
evidence of his having been in said place although absence of
his fingerprints does not necessarily mean he was not in the
same place.
Q: Is a negative finding on a paraffin test a conclusive
evidence that one has not fires a gun?
A: No, because it is possible for a person to fire a gun and yet
bear no traces of nitrates or gunpowder as when the culprit
washes his hands or wears gloves (People v. Cerilla,
November 28, 2007).
Facultad de Derecho Civil 8
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Q: Is denial a negative or positive evidence?
A: It is a negative evidence. It is considered by the Court to be
a very weak form of defense and can never overcome an
affirmative or positive testimony particularly when the latter
comes from the mouth of a credible witness. It is a negative
and a self-serving which cannot be given greater weight than
the testimony of credible witnesses who testified on
affirmative matters (People v. Malicsi, 2008; People v.
Mendoza, 450 SCRA 328).
NOTE: A mere denial, without any strong evidence to support
it, can scarcely overcome the positive declaration by the
other victim of the identity and involvement of the accused in
the crime attributed to him (People v. Nieto, 547 SCRA 511).
Greater probative value is given to evidence that is positive in
nature that that which is accorded to evidence that is
negative in character.
Q: What is the rule regarding contradictory declarations and
statements?
A: Greater weight is generally given to positive testimonies
than to mere denials.
Liberal Construction of the Rules of Evidence
Q: How should the rules of evidence be construed?
A: Like all other provisions under the Rules of Court, the rules
of evidence must be liberally construed. Rules of Procedure
are merely tools intended to facilitate rather than to frustrate
the attainment of justice. Strict and rigid application of the
rules must always be eschewed if it would subvert their
primary objective of enhancing substantial justice.
Q: What is the rule in the relaxation of the rules?
A: A satisfactory explanation and a subsequent fulfillment of
the requirements have always been required (Barcenas v.
Tomas, 454 SCRA 593).
Absence of a vested right in the rules of evidence
Q: Is there a vested right in the rules of evidence?
A: No, because the rules of evidence are subject to change by
the SC pursuant to its powers to promulgate rules concerning
pleading, practice and procedure.
Q: What is the rule regarding the change in the rules of
evidence?
A: It is subject to the constitutional limitation on the
enactment of ex post facto laws.
_____________________________________________
Q: What is an ex post facto law?
A: It includes that which alters the rules of evidence and
receive less or different testimony than that required at the
time of the commission of the offense in order to convict the
accused (Mekin v. Wolfe, 2 Phil 74).
Waiver of Rules of Evidence
Q: May the rules of evidence be waived?
A: Yes. When an otherwise objectionable evidence is not
objected to, the evidence becomes admissible because of
waiver.
Q: May the parties stipulate waiving the rules of evidence?
A:
Art. 6 of the NCC
Art. 6. Rights may be waived, unless the waiver is contrary
to law, public order, public policy, morals, or good customs,
or prejudicial to a third person with a right recognized by
law. (4a).
As long as no law or principles of morality, good customs and
public policy are transgressed or no rights are violated, the
rules of evidence may be waived by the parties.
B. Admissibility of Evidence
Rule 128
Sec. 3.Admissibility of evidence. — Evidence is admissible
when it is relevant to the issue and is not excluded by the
law of these rules. (3a)
Q: What elements should be present for an evidence to be
admissible?
A:
1. The evidence is relevant
2. The evidence is not excluded by the rules (competent)
Q: What are the two axioms of admissibility by Wigmore?
A:
1. That none but facts having rational probative value are
admissible
2. That all facts having rational probative value are
admissible unless some specific rule forbids them.
NOTE: The first axiom is, in substance, the axiom of relevance
while the second axiom is of competence.
Facultad de Derecho Civil 9
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Q: Will relevancy alone make the evidence admissible?
A: No. An item of evidence may be relevant but not
admissible. It is not admissible because although relevant, it
may be incompetent, i.e., it is excluded by law or by a
particular rule or by both.
Illustrations
1. In a prosecution for homicide, the witness swears that
the accused killed the victim because his ever truthful
boyfriend told him so. The testimony although relevant is
not admissible because the witness was not testifying
based on his personal knowledge of the event. The
testimony offered is relevant but incompetent.
2. In the prosecution for robbery, the wife of the accused
testified that the husband admitted to her in confidence
that it was he who killed their neighbor. This testimony is
not admissible.
3. A defense witness testifies having actually seen the
alleged victim fire a gun at the accused without the
latter’s provocation. The testimony is competent and
relevant.
4. Documents obtained in violation of constitution
guarantees although containing relevant matters are
inadmissible because they are illegally obtained as when
evidence is illegally seized.
Inadmissible Evidence under Anti-Wiretapping law
(RA 4200)
Q: To what proceedings this rule apply?
A:
1. Judicial
2. Quasi-judicial
3. Legislative
4. administrative
Q: Is it applicable in impeachment proceedings?
A: It is not yet well-settled. According to Chief Justice Puno in
the case Francisco v. House of Representatives, impeachment
proceedings are sui generis.
Q: What do you mean by sui generis?
A: It means “of its own kind or class, i.e., the only one of its
kind; peculiar.
Q: What are the kinds of evidence the above rule cover?
A:
1. any communication or spoken word
_____________________________________________
2. the existence, contents, substance, purport, effect, or
meaning of the communication or spoken word or any
part thereof.
Q: Does it include the unlawful recording of open and public
communications?
A: No. What the law protects are private conversations and
communications.
NOTE: It is considered unlawful to:
a. secretly overhear
b. intercept
c. record private communication or spoken word when
doing so is without the authority of all the parties to such
private communication.
If there is only one party authorizes the recording and the
other does not, there is a violation of law.
Salcedo-Ortanez v. CA
Absent a clear showing that both parties to the telephone
conversations allowed the recording of the same, the
inadmissibility of the subject tapes is mandatory under R.A.
4200.
People v. Navarro
This case involves the killing of a reporter preceded by a
heated altercation between the accused and the victim in
front of several people in a police station. The SC ruled that
the tape recording is admissible and is not a transgression of
the provisions of R.A. 4200 because the recorded altercation
is not a private communication. Since the heated discussion
occurred in the presence of other persons, it could not be
private.
Q: What are the modes of recording private conversations?
A:
1. To tap any wire or cable;
2. To use a Dictaphone;
3. To use a tape recorder; or
4. To use any device otherwise described.
Q: Is a telephone extension line embraced by the any devise
otherwise described?
A: Yes. An extension telephone line cannot be placed under
the category of the enumerated devices (Ganaan v. IAC).
The law considers it unlawful to knowingly possess any tape
record, wire record, disc record, or any such record, or copies
thereof of any communication or spoken word secured or
Facultad de Derecho Civil 10
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A) _____________________________________________
obtained in a manner violative of the law. It is even also 2. Probable cause to believe that evidence essential to the
unlawful to communicate the contents thereof either verbally conviction of the charged or suspected person, or
or in writing to another. evidence that would solve or prevent the crime will be
obtained; and
The acts mentioned as punishable would not constitute a 3. There is no other effective means readily available for
violation of the law if done by a peace officer authorized by a acquiring such evidence.
written order of the court in cases involving:
The authorization shall be effective in the written order
a. Treason which shall not exceed 30 days from the date of receipt of the
b. Espionage written order by the applicant. It may be renewed for a non-
c. Provoking war and disloyalty in case of war extendible period of 30 days upon proper application under
d. Piracy the conditions set forth on Sec.9, No. 9373.
e. Mutiny in the high seas
f. Rebellion The person under surveillance or whose communications are
g. Conspiracy and proposal to commit rebellion intercepted has the right to be informed of the acts done by
h. Inciting to rebellion the law enforcement authorities or to challenge the legality
i. Sedition of the interception before the CA which issued the written
j. Conspiracy to commit sedition order.
k. Inciting to sedition and
l. Kidnapping Inadmissible evidence in connection with arrests, searches
and seizures
Surveillance of suspects and interception and recording of
communications under the Human Security Act of 2007 People v. Aminnudin

Under the Human Security Act of 2007, the provisions of R.A.
No. 4200 notwithstanding, a police or law enforcement
official may listen to, intercept, and record any
communication, message, conversation, discussion or written
or spoken words between:
a. Members of a judicially declared and outlawed terrorist
organization, association, or
b. Group of persons or of any person charged with or
suspected of the crime of terrorism or conspiracy to
commit terrorism.
Q: Is the written order f the CA necessary?
A: Yes. Such written order of a division of the CA shall be
granted only upon a written application by a police or law
enforcement official. This official must be one who is
authorized by the Anti-Terrorism Council to file such
application. Note that Sec. 8 of R.A. No. 9371 requires only an
ex parte application.
This case demonstrates the inadmissibility of evidence due to
the legal infirmity of an arrest for noncompliance with the
requisites of the flagrante delicto exception. Accordingly, the
accused was not, at the moment of his arrest, committing
crime nor was it shown that he was about to do so or that he
had just done so. He was like any of the other passengers
innocently disembarking from the vessel. Also, from the
information received by the officers, they could have
obtained a warrant since they had at least 2 days to comply
with the bill of rights.
See: People v. Molina (352 SCRA 174)
Malacat v. CA
A warrantless arrest cannot be justified where no crime is
being committed at the time of the arrest because no crime
may be inferred from the fact that the eyes of the person
arrested were “moving fast” and “looking at every person “
passing by.

Q: For the written order to be issued, what are the matters
to be established?
A:
1. There is probable cause to believe that the crime of
terrorism or conspiracy to commit terrorism has been
committed, or is being committed, or is about to be
committed. The finding of probable cause must be
shown based upon the personal knowledge of the
applicant of facts and circumstances indicating the same.
See: People v. Mengote (210 SCRA 174)
People v. Laguio (G.R. No. 128587)
Reliable information alone, absent any overt act indicative of
a felonious enterprise in the presence and within the view of
the arresting officers, is not sufficient to constitute probable
cause that would justify an in flagrante delicto arrest.
Valdez v. People (G.R. No. 170180)

Facultad de Derecho Civil 11

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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Flight is not a reliable indicator of guilt. When petitioner was
arrested without a warrant, he was neither caught in
flagrante delicto committing a crime nor was the arrest
affected in hot pursuit.
People v. Dela Cruz (G.R. No. 182348)
Q: What are the elements of illegal possession of dangerous
drugs?
A:
1. The accused is in possession of an item or object which is
identified to be a prohibited drug;
2. Such possession is not authorized by law; and
3. The accused freely and consciously possessed the said
drug. The possession must be with knowledge of the
accused or animun possidendi existed with the
possession or control of said articles.
In this case, since the accused was not in possession of the
illegal drugs when he was arrested, his arrest was illegal and
the confiscated drugs cannot be used in evidence against
him.
Constructive possession
In People v. Torres (501 SCRA 591), it was held that there was
constructive possession even when the accused was not at
home when the prohibited drugs were found in the master’s
bedroom of his house.
In People v. Tira (430 SCRA 134), there was constructive
possession when illegal drugs were found concealed in the
bed and room of both accused.
People v. Lagman
The finding of illicit drugs and paraphernalia in a house or
building occupied by a particular person raises the
presumption of knowledge and possession thereof.
Also, illegal possession of regulated drugs is mala prohibita,
and as such, criminal intent is not an essential element, but
the prosecution must prove the intent to possess. Possession
is not only actual. It may be constructive.
Q: When does constructive possession exist?
A: It is when he has the right to exercise dominion and
control over the place where it is found. Exclusive possession
or control is not necessary.
Relevant Evidence
Sec. 4.Relevancy; collateral matters. — Evidence must have
such a relation to the fact in issue as to induce belief in its
_____________________________________________
existence or non-existence. Evidence on collateral matters
shall not be allowed, except when it tends in any reasonable
degree to establish the probability or improbability of the
fact in issue. (4a)
Evidence to be relevant must have such a relation to the act
in issue as to induce the belief in its existence or non-
existence.
Q: Explain the concept of relevance.
A: It deals with the rational relationship between the
evidence and the fact to be proved. Thus, the evidence
adduced should be directed to the matters in dispute and any
evidence which has neither direct nor indirect relationship to
such matters must be set aside as irrelevant.
NOTE: The matter of relevance requires the existence of a
fact in issue. This fact in issue must be a disputed fact. Thus, it
is obvious that the evidence offered to prove an undisputed
fact is irrelevant, and as such, is inadmissible. Where there is
no issue as to a matter of fact, there exists no purpose for an
item of evidence.
Q: What is the test for relevance?
A: If the evidence induces belief as to the existence or the
non-existence of the fact in issue, the evidence is relevant. If
it does not issue such belief, it is irrelevant.
NOTE: Although competency of the evidence is a necessary
component of admissible evidence, the question that most
often arises in court is the relevance of the evidence. When
an advocate offers a piece of evidence for the court’s
consideration, he offers the evidence to prove a fact. This
may either be:
a. Immediate fact in issue
b. Ultimate fact in issue
Q: Jollibee is indebted to BDO. When the obligation falls
due, he fails to pay and the bank sues for collection. As part
of the evidence of BDO, the accountant of Jollibee is placed
on the stand and in the course of his examination he asked
if he, in turn, is also indebted to BDO. The lawyer of Jollibee
interposes an objection to the question that it is
impertinent. How would you rule on the objection?
A: The objection of Jollibee that the question is impertinent
or irrelevant should be sustained. The issue in the case is the
indebtedness of Jollibee to BDO and not the indebtedness of
the accountant of Jollibee to the bank.
Test for determining the Relevancy of Evidence
Q: What should be the test in determining the relevancy of
evidence?
Facultad de Derecho Civil 12
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A: The relevance is a matter of relationship between the
evidence and a fact in issue. The determination of relevance
is thus, a matter of inference and not of law. The test would
therefore be one of logic, common sense and experience.
NOTE: The matter of relevance is a matter that is addressed
to the Court (People v. Galleno, 291 SCRA 761). Accordingly,
there is no precise and universal test of relevancy provided by
law. However, the determination of whether particular
evidence is relevant rests largely at the discretion of the
court, which must be exercised according to the teachings of
logic and everyday experience.
Relevance of Evidence on the Credibility of Witness
Q: Evidence on the credibility or lack of it of a witness is
always relevant. What is the purpose of the same?
A: In every proceeding, the credibility of the witness is always
an issue. The credibility of the witness has the inherent
tendency to prove and disprove the truthfulness of his
assertion and consequently, the probative value of the
proffered evidence.
Q: What if the credibility of a witness is found wanting?
A: Sec. 11 of Art. 132, authorizes his impeachment by
contradictory evidence, by evidence that in the past, he has
made statements inconsistent with his present testimony or
by evidence that his general reputation for truth, honesty or
integrity is bad.
Q: How should the court assess the testimony of a witness?
A: The Court shall be guided by the rule that for evidence to
be believed, it must not only proceed from the mouth of
credible witness, but must be credible in itself such as the
common experience of mankind can approve as probable
under the circumstances.
Q: What is the purpose of cross-examination?
A: The importance of the credibility of a witness in a judicial
proceeding is highlighted by rules which allow the adverse
party to test such credibility through a process called cross-
examination.
NOTE: The adverse party can test the credibility of the
witness through cross-examination not only on matters taken
up in the direct examination. The broad spectrum of the
questions allowable in a cross examination of a witness
includes questions on matters connected with those taken up
by direct examination. It includes questions designed to grant
the cross-examiner sufficient fullness and freedom to test the
accuracy and truthfulness if the witness, his interest or bias,
or the reverse (Sec. 6, Rule 132).
_____________________________________________
Q: What are the instances that questions of the cross-
examiner are circumscribed by the matters taken up in the
direct examination and thus questions outside the subject
matter of direct examination are not allowed?
A:
1. An accused may testify as a witness on his own “behalf
but subject to cross-examination on matters covered by
direct examination” (Sec. 1 [d], Rule 115).
2. A hostile witness may be impeached and cross-examined
by the adverse party, but such cross examination must
only be the subject of his examination-in-chief (Sec. 12,
Rule 132).
Competent Evidence
Q: What is a competent evidence?
A: Competent evidence is one that is not excluded by law in a
particular case.
Q: What is the test of competence?
A: It is the law or the rules. If the law or a particular rule
excludes the evidence, it is incompetent.
NOTE: Competence, in relation to evidence in general, refers
to the eligibility of an evidence to be received as such.
However, when applied to a witness, the term competent
refers to the qualifications of the witness. In other words,
competence refers to his eligibility to take the stand and to
testify. It is in the context that the term is normally associated
with.
Q: Is objection on the ground that it is incompetent an
accepted form of objection?
A: No, because it is a general objection. The objection should
specify the ground for its incompetence such as leading,
hearsay or parol.
Note that courts neither need nor appreciate generalities.
General objections are viewed with disfavor because specific
objections are required by Sec. 36, Rule 132. Thus, for
purposes of trial objections, evidence is never incompetent. It
is people who are. It is a sloppy usage to object to a
testimony or a document as incompetent. Such term more
appropriately describes a witness who under evidentiary
rules, does not possess the qualifications of a witness or
suffers from disqualification to be one.
Competence of electronic evidence
Electronic evidence is competent evidence and is admissible if
it complies with the rules on admissibility prescribed by the
Rules of Court and is authenticated in the manner prescribed
(Sec. 2, Rule 3, Rules on Electronic Evidence).
Facultad de Derecho Civil 13
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A) _____________________________________________
Competency of witness v. Credibility of witness
Collateral matters
Also, the competency of witness differs from his credibility. A
Q: When is a matter collateral? witness may be competent, and yet give incredible
testimony; he may be incompetent, and yet his evidence if
A: A matter is collateral when it is on a “parallel or diverging received, is perfectly credible.
line, merely “additional” or “auxiliary.” This term connotes an
absence of a direct connection between the evidence and the Admissibility and weight of the evidence
matter in dispute.
Admissibility Probative value
For instance, the motive of a person and in some instances, Refers to the question of Refers to the question of
his reputation are matters that may be considered collateral whether certain pieces of whether the admitted
to the subject of a controversy. A very strong motive to kill evidence are to be evidence proves an issue.
the victim does not ipso facto make motive relevant to the considered at all
issue of guilt or innocence because the person with Depends on its relevance and Pertains to its tendency to
absolutely no motive to kill could be the culprit. competence convince and persuade

Evidence of the bad reputation of the accused for being NOTE: To admit evidence and not believe it are not
troublesome and aggressive does not make the evidence incompatible with each other.
admissible to prove his guilt. After all, the culprit could have
been the person with the most endearing reputation. Jurisprudential tenets on probative value and credibility

When collateral matters are allowed 1. Whether or not a witness or evidence is credible is an
issue addressed to the judgment of the trial court (People
Q: Are collateral matters allowed? v. Castro, 2008).
2. The determination of the credibility of a witness is within
A: As a rule, evidence on a collateral matte is not allowed. It is the domain of the trial court (Llanto v. Alzona, 450 SCRA
not allowed because it does not have the direct relevance to 288) and is given great weight and respect because the
the issue of the case. trial court has the opportunity to observe the witness
and their demeanor during the trial.
Q: Is this rule absolute? 3. However, where the trial judge did not hear the
testimonies himself, he would not be in a better position
A: No. A collateral matter may be admitted if it ends in any than SC to assess the credibility of witnesses on the basis
reasonable degree to establish the probability or of their demeanor (BPI v. Reyes, 2008). It had the unique
improbability of the fact in issue. advantage of having personally observed the witnesses,
their demeanor, conduct, and attitude (People v. Nueva,
While the evidence may not bear directly on the issue, it will 2008).
be admitted if it has the tendency to induce belief as to the 4. Testimonies or child-victims are normally given full
probability or improbability of the issues of the case as when weight and credit, since where a woman, more so if he is
it would have the effect of corroborating or supplementing a minor, says that she is raped, she says in effect all that
facts previously established by direct evidence. is necessary to show that rape was committed. There
could not have been a more powerful testament to the
In civil cases, evidence of the moral character of a party is truth than this “public baring of unspoken grief” (People
admissible when pertinent to the issue of character involved v. Aguilar, 2007).
in the case. Also, evidence of the good character has been 5. No woman, much less one of tender age, would
previously impeached. broadcast a violation of her person, allow an examination
of her flesh, and endure public trial of her remaining
Admissible evidence distinguished from credible evidence dignity, unless she is solely impelled by the desire for
redress. Thus, when her testimony is plausible,
ADMISSIBLE EVIDENCE CREDIBLE EVIDENCE spontaneous, convincing and consistent with human
Means that the evidence is of Refers to the worthiness of nature and the ordinary course of things, it can indeed
such character that the court belief, that quality which beget moral certainty of the guilt of the violator.
is bound to receive it or allow renders a witness worthy of 6. The court will not disturb the factual finding of the trial
it to be introduced at the belief. It means court unless there is a showing that the latter had
trial. It does not, however, “believability.” overlooked, misunderstood, or misapplied some fact or
guarantee credibility. circumstance of weight and substance that would have
affected the result of the case.

Facultad de Derecho Civil 14

UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
7. Minor inconsistencies are too trivial to affect the
credibility of witness, and these may even serve to
strengthen their credibility as these negate any suspicion
that the testimonies have been rehearsed (Ingal v.
People, 2008)
8. Accuracy in accounts had never been applied as a
standard to which credibility of witnesses are tested
since it is undeniable that human memory is fickle and
prone to stresses and passage of time (People v.
Tolentino, 2008).
9. Inconsistencies between the sworn statement and the
testimony in court do not militate against the witness;
credibility since the sworn statements are generally
considered inferior to the testimony in open court
(People v. Bajada, 2008).
10. The factual findings of quasi-judicial agencies are
generally accorded respect and even finality by the SC if
supported by substantial evidence in recognition of their
expertise on specific matters under consideration
(Quiambao v. CA, 454 SCRA 17).
11. A community tax receipt is not credible and reliable in
proving the identity of a person who wishes to have his
document notarized (Baylon v. Almo, 2008).
12. In determining the value and credibility of evidence,
witnesses are to be weighed, not numbered (Bastian v.
CA, 2008).
13. The testimony of a single witness, if positive and
credible, is sufficient to support a conviction even in the
charge of murder (People v. Zeta, 2008).
Chapter II
JUDICIAL NOTICE AND ADMISSIONS
A. Judicial Notice
RULE 129
SECTION 1.Judicial notice, when mandatory. — A court shall
take judicial notice, without the introduction of evidence, of
the existence and territorial extent of states, their political
history, forms of government and symbols of nationality,
the law of nations, the admiralty and maritime courts of the
world and their seals, the political constitution and history
of the Philippines, the official acts of legislative, executive
and judicial departments of the Philippines, the laws of
nature, the measure of time, and the geographical divisions.
(1a)
Sec. 2.Judicial notice, when discretionary. — A court may
take judicial notice of matters which are of public
knowledge, or are capable to unquestionable
demonstration, or ought to be known to judges because of
their judicial functions. (1a)
_____________________________________________
Sec. 3.Judicial notice, when hearing necessary. — During the
trial, the court, on its own initiative, or on request of a
party, may announce its intention to take judicial notice of
any matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the
proper court, on its own initiative or on request of a party,
may take judicial notice of any matter and allow the parties
to be heard thereon if such matter is decisive of a material
issue in the case. (n)
NOTE: There are matters in litigation which must be admitted
without need for evidence.
Examples:
1. That a place where the crime was committed, such as
Quezon City actually exists
2. There is no need to adduce evidence that the statute
allegedly violated exist because the court is charged with
knowledge of the law it being the product of an official
act of the legislative department of the Philippines
3. There is likewise no need to adduce evidence that there
are 24 hours in a day and that the sun rises in the east
and sets in the west.
4. The fact the Cebu lies in the Visayan Region needs no
further evidence.
Q: What is the basis of judicial notice?
A: It is based on the maxim, “what is known need not be
proved,” hence when the rule is invoked, the court may
dispense with the presentation of evidence on judicially
cognizable facts.
Function of Judicial notice
Q: What is the function of judicial notice?
A: To abbreviate litigation by the admission of matters that
need no evidence because judicial notice is a substitute for
formal proof of a matter by evidence. It takes the place of
proof and is of equal force. Evidence shall be dispensed with
because the matter is so well known and is of common
knowledge not to be disputable.
NOTE: Judicial notice cannot be used to fill in the gaps in the
party’s evidence. It should not be used to deprive an adverse
party of the opportunity to prove a disputed fact.
Q: What are the kinds of judicial notice?
A:
1. Mandatory- no motion or hearing is necessary for the
court to take judicial notice of a fact because this is a
matter which a court ought to take judicial notice of.
2. Discretionary
Facultad de Derecho Civil 15
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Q: What matters are subject to mandatory judicial notice?
A:
1. The existence and territorial extent of states
5. seals
6. The political constitution and the history of the
Philippines
7. The official acts of the legislative, executive and judicial
departments of the Philippines
8. The law of nature
9. The measure of time
10. The geographical divisions
Siena Realty Corporation v. Gal-lang
Even if petitioners did not raise or allege the amendment of
the Rules of Court in their motion for reconsideration, the CA
should have taken mandatory judicial notice of the same.
Under Sec.1 of Rule 129, a court shall take judicial notice
among others, of the official acts not only of the legislative
and executive departments but also of the judicial
department.
DENR v. DENR Region 12 Employees
A court has the mandate to apply relevant statutes and
jurisprudence in determining whether the allegation in a
complaint establish a cause of action. A court cannot
disregard decisions material to the proper appreciation of the
questions before it.
Candido v. CA
A document, or any article for that matter, is not evidence
when it is simply marked for identification; it must be
formally offered, and the opposing counsel given an
opportunity to object to it or to cross-examine the witness
called upon to prove or identify it. A formal offer is necessary
since judges are required to base their findings of fact and
judgment only and strictly upon the evidence offered by the
parties at the trial. Xxx The appellate court will have difficulty
reviewing documents not previously scrutinized by the court
below. The pertinent provisions of the Revised Rules of Court
on the inclusion on appeal of documentary evidence or
exhibits in the records cannot be stretched as to include such
pleadings or documents not offered at the hearing of the
case.
Suplico v. NEDA
In this case the Court took judicial notice of the declaration of
the President that the Philippine government had decided
not to continue with the ZTE-NBN Project due to several
reasons and constraints. They are official acts and thus, a
matter of mandatory judicial notice under Sec. 1 of Rule 129.
When judicial notice is discretionary
_____________________________________________
2. The political history, forms of the government and
symbols of nationality of sates
3. The law of nations
4. The admiralty and maritime courts of the world and their
Q: When is judicial notice is discretionary?
A: A court may take judicial notice of matters which are of
public knowledge, or are capable of unquestionable
demonstration, or ought to be known to judges because of
their judicial functions (Sec. 2, Rule 129).
Q: What are the requisites for the principles of discretionary
judicial notice to apply?
A:
1. The matter must be one of common knowledge
2. The matter must be settled beyond reasonable doubt
3. The knowledge must exist within the jurisdiction of the
court.
NOTE: The principal guide in determining what facts may be
assumed to be judicially known is that of notoriety. Judicially
noticed fact must be one not subject to a reasonable dispute
that is either:
a. Generally known within the territorial jurisdiction of
the trial court
b. Capable of accurate and ready determination by
resorting to sources whose accuracy cannot
reasonably be questionable.
Facts which are universally known, and which may be found
in encyclopedias, dictionaries and other publications, are
judicially noticed, provided they are of such universal
notoriety and so generally understood that they may be
regarded as forming part of common knowledge of every
person.
On the other hand, matters which are capable of
unquestionable demonstration pertain to fields of
professional and scientific knowledge. As to matters which
ought to be known to judges because of their judicial
functions, an example would be facts which are ascertainable
from the record of the court proceedings, e.g., as to when the
court notices were received by a party (People v. Tundag, 342
SCRA 704).
Q: Can a court take judicial notice of a factual matter in
controversy?
A: No. Before taking such judicial notice, the court must
“allow the parties to be heard thereon” (Herrera v. Bollos,
374 SCRA 107).
Q: Where does the discretion lie?
Facultad de Derecho Civil 16
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A: Judicial notice rests on the wisdom and discretion of the
court. The power to take judicial notice must be exercised
with caution and care must be taken that the requisite
notoriety exists.
Q: In case of doubt, how should the court resolve the same?
A: Any reasonable doubt on the matter sought to be judicially
noticed must be resolved against the taking of judicial notice
(State Prosecutors v. Muro, 236 SCRA 505).
NOTE: To say that a court will take judicial notice of a fact is
merely another way of saying that the usual form of evidence
will be dispensed with if knowledge of the fact can be
otherwise acquired. This is because the court assumes that te
matter is so notorious that it will not be disputed (Land Bank
of the Philippines v. Wycoco, 419 SCRA 67).
Sec. 3.Judicial notice, when hearing necessary. — During the
trial, the court, on its own initiative, or on request of a
party, may announce its intention to take judicial notice of
any matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the
proper court, on its own initiative or on request of a party,
may take judicial notice of any matter and allow the parties
to be heard thereon if such matter is decisive of a material
issue in the case. (n)
Q: Can market value be judicially noticed?
A: While the market value may be one of the bases in
determining just compensation, the same cannot be
arbitrarily arrived at without considering the factors to be
appreciated in arriving at the FMV of the property. The court
should have allowed the parties to present evidence thereon
instead of practically assuming a valuation without the basis.
Judicial knowledge and knowledge of the Judge
Judicial notice may be taken of a fact which judges ought to
know because of their judicial functions (Sec. 2, Rule 129).
Q: Is judicial notice the same as judicial knowledge?
A: No. The mere personal knowledge of the judge is not the
judicial knowledge of the court, and he is not authorized to
make his individual knowledge of a fact, not generally or
professionally known, the basis of his action (Land Bank of
the Philippines v. Wycoco, 419 SCRA 67; State Prosecutors v.
Muro, 236 SCRA 505).
Q: Is judicial notice limited by the actual knowledge of the
individual judge or court?
_____________________________________________
A: No. A judge must take judicial notice of a fact if it is one
which is the proper subject of judicial cognizance even if it is
not within the personal knowledge.
A judge may not take judicial notice of a fact which he
personally knows if it is not part of evidence or not a fact
generally known within its territorial jurisdiction.
Q: What is the rule on foreign laws?
A: Courts of the forum will not take judicial notice of the law
prevailing in another country. Foreign laws must be alleged
and proved.
Stage when judicial notice may be taken
The court can take judicial notice of a fact during or after
trial:
1. Judicial notice may be taken during the trial of the case.
The court, during the trial, may announce its intention to
take judicial notice of any matter. It may do so on its own
initiative or on the request of any party and allow the
parties to be heard.
Q: In the above rule, what is the purpose of the hearing?
A: Only for the purpose of determining the propriety of taking
judicial notice of a certain matter and not for the purpose of
proving the issues in the case.
2. Judicial notice may also be taken by the proper court
after the trial, and before judgment. Judicial notice may
also be taken on appeal. The proper court, on its own
initiative or on request of any party, may take judicial
notice of any matter and allow the parties to be heard
thereon if such matter is a decisive of a material issue in
the case.
Judicial notice of foreign laws;
Doctrine of Processual Presumption
Q: What is the rule on foreign laws?
A: It is well-settled that our courts cannot take judicial notice
of foreign laws. Like any other facts, they must be alleged and
proved. Australian marital laws for example, are not among
those matters that judges are supposed to know by reason of
their juridical functions (Garcia v. Garcia-Recio, 366 SCRA
437).
Q: The rule is foreign laws must be alleged and proved.
What is the effect of the absence of proof?
A: Then, the foreign law will be presumed to be the same as
the laws of the jurisdiction hearing the case under the
doctrine of processual presumption (Northwest Orient Airlines
v. CA, 241 SCRA 192).
Facultad de Derecho Civil 17
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Q: What if the foreign law is within the actual knowledge of
the court such as when the law is generally well known?
A: The court may take judicial notice of the foreign law (PCIB
v. Escolin, 56 SCRA 266).
NOTE: When the foreign law is part of a published treatise,
periodical, or pamphlet and the writer is recognized in his
profession, or calling as expert in the subject, the court may
take judicial notice of the treatise containing the foreign law.
Judicial notice of the Law of Nations
Q: What is the rule regarding Judicial notice of the Law of
Nations?
A: When the foreign law refers to the law of nations, said law
is subject to a mandatory judicial notice under Se. 1 of Rule
129. Under Sec. 2, Art. II of the Constitution, the Philippines
adopts the generally accepted principles of international law
as part of the law of the land.
Judicial notice of Municipal Ordinances
Q: What is the rule regarding Judicial notice of Municipal
Ordinances?
A: MTCs must take judicial notice of municipal ordinances in
force in the municipality in which they sit (U.S. v. Blanco, 37
Phil 126).
An RTC must also take judicial notice of municipal ordinances
in force in the municipalities within their jurisdiction but only
so required by law (City of Manila v. Garcia, 19 SCRA 413).
The CA may take judicial notice of municipal ordinances
because nothing in the Rules prohibits it from taking
cognizance of an ordinance which is capable of
unquestionable demonstration (Gallego v. People, 8 SCRA
813).
Judicial notice of a Court’s Own acts and records
A court may take judicial notice of its own acts and records in
the same case (Republic v. CA, 277 SCRA 633).
Q: What is the rule regarding contents of the records of
other cases?
A: The court is not authorized to take judicial notice of the
contents of the records of other cases, even when such cases
have been tried or are pending in the same court, and
notwithstanding the fact that both cases may have been
heard or are actually pending before the same judge
(Tabuena v. CA, 196 SCRA 650).
_____________________________________________
Q: What are the exceptions to this rule?
A:
1. When in the absence of any objection, with knowledge of
the opposing party, the contents if said other cases are
clearly referred to by title and number in a pending
action and adopted or read into the record of the latter
2. When the original record of the other case or any part of
the other case or any part of it is actually withdrawn
from the archives at the court’s discretion upon the
request, or with the consent, of the parties, and
admitted as part of the record of the pending case
(Tabuena v. CA, 196 SCRA 650).
Rule on Judicial Notice of Post office practices
That a registered letter when posted is immediately stamped
with the date of its receipt, indicating therein the number of
registry, both on the covering envelope itself and on the
receipt delivered the letter to the office is not a proper
subject of judicial notice. This post office practice is not
covered by any of the instances under the Rules and is not of
unquestionable demonstration (Republic v. CA, 107 SCRA
504).
Judicial notice of banking practices
Q: May judicial notice be taken of the practice of banks in
conducting background checks on borrowers and sureties?
A: Yes. It is noted that it is their uniform practice, before
approving a loan, to investigate, examine, and assess would-
be borrowers’ credit standing or real estate offered as
security for the loan applied for (Solidbank Corp. v. Mindanao
Ferroalloy Corp., 464 SCRA 409).
Judicial notice of financial condition of the government
Judicial notice could be taken of the fact that the government
is and has for many years been financially strapped, to the
point that even the most essential services have suffered
serious curtailment (La Bugal-B’laan Tribal Association v.
Ramos, 445 SCRA).
NOTICE: The official acts of the legislative, executive and
judicial departments are proper subjects of mandatory
judicial notice (DENR v. DENR Region 12 Employees).
Judicial notice of other matters
1. The trial courts can take judicial notice of the general
increase in rentals of real estate especially of business
establishments.
2. A court cannot take judicial notice of an administrative
regulation or of a statute that is not yet effective.
3. Judicial notice of the age of the victim is improper.
Facultad de Derecho Civil 18
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
4. In this age of modern technology, the courts may take
judicial notice that business transactions may be made by
individuals through teleconferencing. (Expertravel and
Tours v. CA, 459 SCRA 147).
5. It can be judicially noticed that the scene of the rape is
not always nor necessarily isolated or secluded, for lust is
no respecter of time or place (People v. Tundag, 342
SCRA 147).
6. The court has likewise taken judicial notice of the
Filipina’s inbred modesty and shyness and her antipathy
in publicly airing acts which blemish her honor and
virtue.
7. The trial court properly took judicial notice that
Talamban, Cebu City is an urban area (Chiongbian-Oliva
v. Republic, 2007).
8. It is of judicial notice that the judiciary is beset with the
gargantuan task in unclogging dockets, not to mention
the shortage of judges occupying positions in far flung
areas (GSIS v. Vallrar, 2007).
9. Judicial notice can be taken of the fact that testimonies
during the trial are much more exact and elaborate than
those stated in sworn statements, usually being
incomplete and inaccurate for a variety of reasons.
10. Judicial notice can be had that drug abuse can damage
the mental faculties of the user.
11. The court cannot be expected to take judicial notice of
the new address of lawyer who has moved or to
ascertain on its own whether or not the counsel of
record has been changed and who the new counsel could
possibly be or where he probably resides or holds office.
B. Judicial Admissions
Rule 129
Sec. 4.Judicial admissions. — An admission, verbal or
written, made by the party in the course of the proceedings
in the same case, does not require proof. The admission
may be contradicted only by showing that it was made
through palpable mistake or that no such admission was
made. (2a)
Q: What are the elements for a judicial admissions be
considered?
A:
1. The same must be made by a party to the case.
2. The admission to be judicial must be made in the course
of proceedings in the same case. Otherwise, it will be
considered as an extra-judicial admission for purposes of
the other proceeding where such admission is offered.
3. Sec. 4 of Rule 129 does not require a particular form for
an admission. Such form is immaterial because the
provision recognized either a verbal or a written
admission.
_____________________________________________
Q: Where can judicial admissions be made?
A: A part may make judicial admissions in:
a. Pleadings;
b. During trial, either verbal or written manifestations
or stipulations; or
c. In other stages of the judicial proceedings.
The stipulation of facts at the pre-trial of a case constitutes
judicial admissions. They are binding and conclusive upon
them. The veracity of judicial admissions requires no further
proof and may be controverted only upon a clear showing
that the admissions were made through palpable mistake or
that no admissions were made.
Admission in drafted documents
An admission made in a document drafted for purposes of
filling as a pleading but never filed, is not a judicial admission.
If signed by the party, it is deemed an extrajudicial admission.
If signed by the attorney, it is not even an admission by the
party. The authority of the attorney to make statements for
the client extend only to statements made in open courts or
in pleadings filed with the court (Jackson v. Schine Lexington).
Admissions made in pleadings and motions
GENERAL RULE
Admissions made in the pleadings of a party are deemed
judicial admissions. This includes admissions made in the
complaint. Thus, they cannot be contradicted unless there is
a showing that it was made through palpable mistake or that
no such admission was made.
Admissions made in a motion are judicial admissions which
are binding on the party who made them. Such party is
precluded from denying the same unless there is a proof of
palpable mistake (Herrera-Felix v. CA, 436 SCRA 87).
EXCEPTION
In those rare instances when the trial court, in the exercise of
its discretion and because of strong reasons to support its
stand, may relive a party from the consequences of his
admission. It cannot be contradicted unless it can be shown
that the admission, the allegations, statements, or admissions
contained in a pleading are conclusive as against the pleader
(Heirs of Pedro Clemeña v. Heirs of Irene B. Bien, G.R. No.
155508).
An answer is a mere statement of fact which the party filing it
expects to prove, but it is not evidence (Spouses Santos v.
Spouses Lumbao, G.R. No. 169129).
Facultad de Derecho Civil 19
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
An admission made in a pleading may be an actual admission
as when a party categorically admits a material allegation
made by the adverse party. An admission may also be
inferred from the failure to specifically deny the material
allegations in the other party’s pleadings.
Averments in pleadings which are not deemed admissions
There are averments in pleadings which are not deemed
admitted even if the adverse party fails to make a specific
denial of the same like immaterial allegations, conclusions,
non-ultimate facts in the pleading as well as the amount of
unliquidated damages.
Implied admissions of allegations of usury
Under sec. 11 of Rule 8, if the complaint makes an allegation
of usury to recover usurious interest, the defendant must not
only specifically deny the same but must also do so under
oath. Otherwise, there is an implied admission of the
allegation of usury.
Rule 8
Sec. 11
Implied admission of actionable documents
When an action or defense is founded upon a written
instrument, the genuineness and due execution of the same
instrument shall be deemed admitted unless the adverse
party, under oath, specifically denies them and set forth what
he claims to be the facts. Otherwise, there is a judicial
admission pursuant to sec. 8, Rule 9.
Failure to deny the genuineness and due execution of an
actionable document does not preclude a party from arguing
against the document by evidence of fraud, mistake,
compromise, payment, statute of limitations, estoppels, and
want of consideration. He is however precluded from arguing
that the document is a forgery because the genuineness of
the document has been impliedly admitted by his failure to
deny the same under oath.
Q: Does the failure of A to file a reply and deny the dacion
and the confirmation statement under oath constituted a
judicial admission of the genuineness and due execution of
the said documents?
A: Yes. Also, in resolving a demurrer, the court should not
only consider the plaintiff’s evidence. It should also include
judicial admissions, matters of judicial notice, stipulations
made during the pre-trial, admissions, and presumptions
(Casent Realty Development Corporation v. PhilBanking
Corporation, G.R. No. 150731).
_____________________________________________
Admissions in the Pre-trial of civil cases
Admissions in the pre-trial, as well as those made during the
depositions, interrogatories or requests for admission, are all
deemed judicial admissions because they are made in the
course of the proceedings of the case.
Admissions in pre-trial briefs are judicial admissions and well-
settled is the rule that an admission, verbal or written, made
by a party in the course of the proceedings in the same case,
does not require proof.
The parties are bound by the representations and statements
in their respective pre-trial briefs submission of which being
mandatory in a pre-trial of a civil case.
G.R: The admissions of the parties during pre-trial as
embodied in the pre-trial order are binding and conclusive on
them.
XPN: Unless there is a clear showing that the admission was
entered through palpable mistake.
Admissions in the pre-trial of criminal cases (Rule 118)
An admission made by the accused in the pre-trial of a
criminal case is not necessarily admissible against him. To be
admissible, the conditions under Sec. 2 of Rule 118 must be
complied with:
Sec. 2. Pre-trial agreement- All agreements or admissions
made or entered during the pre-trial conference shall be
reduced in writing and signed by the accused and counsel,
otherwise they cannot be used against the accused.
Q: Does the rule requiring an admission made or entered
into during the trial conference to be reduced in writing and
signed by the accused and his counsel before the same may
be used in evidence against the accused, equally apply to
stipulation of facts made during the trial?
A: No, a stipulation of facts entered into by the prosecution
and defense counsel during trial in open court is
automatically reduced in writing and contained in the official
transcript of proceedings had in court. The conformity of the
accused in the form of his signature affixed thereto is
unnecessary in view of the fact than an attorney who is
employed to manage a party’s conduct of a lawsuit has a
prima facie authority to make relevant admissions by
pleadings, by oral or written stipulation which unless allowed
to be withdrawn are conclusive.
Q: During pre-trial Bimby personally offered to settle the
case for 1M to the private prosecutor, who immediately put
the offer on record. Is Bimby’s offer a judicial admission of
his guilt?
Facultad de Derecho Civil 20
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A: Yes. A judicial admission is one that is verbal or written,
made by a party in the course of the proceedings in the same
case.
Under Sec. 27 of Rule 130, the judicial admission could be
considered as an implied admission of guilt.
Sec. 27.Offer of compromise not admissible. — In civil cases,
an offer of compromise is not an admission of any liability,
and is not admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses
(criminal negligence) or those allowed by law to be
compromised, an offer of compromised by the accused may
be received in evidence as an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a
plea of guilty to lesser offense, is not admissible in evidence
against the accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other
expenses occasioned by an injury is not admissible in
evidence as proof of civil or criminal liability for the injury.
(24a)
Implied admissions in the modes of discovery
Admissions obtained through depositions, written
interrogatories or requests for admission are also considered
judicial admissions.
Under Sec.3 of Rule 26, any admission made pursuant to the
request for admission is for the purpose of the pending action
only. The admission shall not be considered as one for any
other purpose nor may the same be used against him in any
other proceeding.
Sec. 2 of Rule 26 requires the other party to file and serve a
sworn statement either denying specifically the matter of
which an admission or requested or setting forth in detail the
reasons why he cannot truthfully either admit or deny those
matters. The failure to do so will result into an implied
admission of each of the matters of which an admission is
requested. Since the defendant failed to comply with the
requirements of the Rules, he is deemed to have made an
implied admission of the matters subject of the request for
admission.
Rule 26
Sec. 2
Sec.3
Admissions in amended pleadings
_____________________________________________
When a pleading is amended, the amended pleading
supersedes the pleading that it amends and the admissions in
the superseded pleading may be received in evidence against
the pleader.
Nature of admissions in superseded pleadings
Admissions in a superseded pleading are to be considered as
extrajudicial admissions which must be proven. Pleadings
that have been amended disappear from the record, lose
their status as pleadings and cease to be judicial admissions,
and to be utilized as extrajudicial admissions, they must, in
order to have such effect, be formally offered in evidence.
Admissions in dismissed pleadings
Admissions made in pleadings that have been dismissed are
merely extrajudicial admissions.
Hypothetical admissions in a motion to dismiss
A motion to dismiss hypothetically admits the truth of the
allegations of the complaint (Magno v. CA, 107 SCRA 285).
However, the admission extends only to such matters of fact
that have been sufficiently pleaded and not to mere epithets
charging fraud, allegations of legal conclusions, or erroneous
statements of law, inferences from facts not stated, matters
of evidence or irrelevant matters (De Dios v. Bristol
Laboratories, 55 SCRA 349).
Admissions by counsel
Q: What is the effect of admissions by counsel?
A: They are generally conclusive upon a client (De Garcia v.
CA, 37 SCRA 129). Even the negligence of counsel binds the
client.
Q: What is the exception to the rule?
A: In case where reckless or gross negligence of counsel
deprives the client of due process of law, or when its
application will result in outright deprivation of the client’s
liberty, or property, or when the interests of justice so
require (Salazar v. CA, 376 SCRA 459).
NOTE: Admissions made for the purpose of dispensing with
proof of some facts are in the nature of judicial admissions.
Such admissions are frequently those of counsel, or of the
attorney of record, who is, for the purpose of the trial, the
agent of his client. When such admissions are made for the
purpose of dispensing with proof of some fact, they bind the
client, whether made during or even after the trial.
Consequences of judicial admissions
Q: What is the consequence of judicial admissions?
Facultad de Derecho Civil 21
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A: A party who judicially admits a fact cannot later challenge
that fact, as judicial admissions are waiver of proof;
production of evidence is dispensed with. No evidence is
needed to prove judicial admission and it cannot be
contradicted unless it is shown to have been made through
palpable mistake or that no such admission was made but
despite the presence of judicial admissions in a party’s
pleading, the trial court is still given leeway to consider other
evidence presented because admissions may not necessarily
prevail over documentary evidence.
Q: Under Sec. 4, Rule 129, what are the effects of judicial
admissions?
A:
1. They do not require proof
2. They cannot be contradicted because they are conclusive
upon the party making it
Q: What are the exceptions to this?
A:
1. Upon showing that the admission was made through
palpable mistake
2. When it is shown that no such admission was made.
Q: What do you mean by palpable mistake?
A: The mistake that would relieve the party from the effects
of his admission is not any mistake. It must be one that is
palpable, a mistake that is clear to the mind or plain to see. It
is a mistake that is readily perceived by the senses or the
mind.
Q: When can a party use the admission that there is no such
admission?
A: This may be invoked when the statement of a party is
taken out of context or that his statement was made not in
the sense it is made to appear by the other party. Here, what
he denies is the meaning attached to his statement, a
meaning made to appear by the adverse party as an
admission.
C. Admissions, Confessions, and the
Res Inter Alios Acta Rule
Rule 130
Sec. 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. (22)
_____________________________________________
Sec. 27.Offer of compromise not admissible. — In civil cases,
an offer of compromise is not an admission of any liability,
and is not admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses
(criminal negligence) or those allowed by law to be
compromised, an offer of compromised by the accused may
be received in evidence as an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a
plea of guilty to lesser offense, is not admissible in evidence
against the accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other
expenses occasioned by an injury is not admissible in
evidence as proof of civil or criminal liability for the injury.
(24a)
Sec. 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. (25a)
Sec. 29.Admission by co-partner or agent. — 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
evidence other than such act or declaration. The same rule
applies to the act or declaration of a joint owner, joint
debtor, or other person jointly interested with the party.
(26a)
Sec. 30.Admission by conspirator. — 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 of declaration. (27)
Sec. 31.Admission by privies. — Where one derives title to
property from another, the act, declaration, or omission of
the latter, while holding the title, in relation to the property,
is evidence against the former. (28)
Sec. 32.Admission by silence. — An act or declaration made
in the presence and within the hearing or observation of a
party who does or says nothing when the act or declaration
is such as naturally to call for action or comment if not true,
and when proper and possible for him to do so, may be
given in evidence against him. (23a)
Sec. 33.Confession. — The declaration of an accused
acknowledging his guilt of the offense charged, or of any
offense necessarily included therein, may be given in
evidence against him. (29a)
Sec. 34.Similar acts as evidence. — Evidence that one did or
did not do a certain thing at one time is not admissible to
Facultad de Derecho Civil 22
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
prove that he did or did not do the same or similar thing at
another time; but it may be received to prove a specific
intent or knowledge; identity, plan, system, scheme, habit,
custom or usage, and the like. (48a)
Sec. 35.Unaccepted offer. — An offer in writing to pay a
particular sum of money or to deliver a written instrument
or specific personal property is, if rejected without valid
cause, equivalent to the actual production and tender of the
money, instrument, or property. (49a)
_____________________________________________
A: It 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.
NOTE: An admission is something less than a confession, and
is but an acknowledgment of some fact or circumstance
which in itself is insufficient to authorize a conviction, and
which tends only to establish the ultimate fact of guilt.
Admissions v. Declarations against interest

Q: What is an admission? ADMISSION DECLARATION AGAINST

A: It is an act, declaration or omission of a party as to a An admission is admissible
relevant fact. It is a voluntary acknowledgement made by a even if the person making
party of the existence of the truth of certain facts which are the admission is alive and is
inconsistent with his claims in an action. in court
Made at anytime even during
Q: What is confession? trial
Admissible as long as it is
A: It is the declaration of an accused acknowledging his guilt inconsistent with his present
of the offense charged, or of any offense necessarily included claim or defense and need
therein. It is a statement by the accused that he engaged in not be against one’s
conduct which constitutes a crime. pecuniary or moral interest
Admissible only against the
Q: What if a person declares in his counter-affidavit that he party making the admission
performed an act like shooting the victim but denies that he Not an exception to the
did so with criminal intent because the shooting was done in hearsay rule, and is
self-defense? admissible not as an
exception to the rule
A: Such is merely an admission and not an admission (Ladiana
v. People, 393 SCRA 419). Effects of admissions
INTEREST
To be admitted as a
declaration against interest,
the declarant must be dead
or unable testify
Made before the controversy
arises
Made against one’s
pecuniary or moral interest
Admissible even against third
persons
An exception to the hearsay
rule

NOTE: An admission in a general sense includes confessions,
the former being a broader term because accordingly, a
confession is also an admission by the accused of the fact
charged against him or of some fact essential to the charge.
A confession is a specific type of admission which refers only
to an acknowledgement of guilt.
Q: May admission be implied?
A: Yes, like an admission by silence.
Q: What about confession?
A: No, it should be a direct and positive acknowledgment of
guilt.
Q: What are the effects of admissions?
A:
1. An admission by a party may be given in evidence against
him. His admission is not admissible in his favor, because
it would be self-serving evidence. Declarations of a party
favorable to himself are not admissible as proof of the
facts asserted.
2. The act, declaration, or admission of a party as to a
relevant fact may be given in evidence against him. This
rule is based on the notion that no man would make any
declaration against himself, unless it is true.
Classification of admissions and confessions
Q: What are the classification of and confessions?

Q: Explain confession in criminal cases. A:

1. Express – a positive statement or act.
A: Confession is an acknowledgment in express terms, by a 2. Implied – one which may be inferred from the
party in a criminal case, of his guilt of the crime charged. declarations or acts of a person

Q: Explain admission in criminal cases. NOTE: A confession cannot be implied. It must be a positive
acknowledgment of guilt and cannot be inferred.

Facultad de Derecho Civil 23

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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
3. Judicial – when made in the course of a judicial
proceeding
4. Extra-judicial – when made out of court or even in the
proceeding other than the one under consideration
5. Adoptive- occurs when a person manifests his assent to
the statements of another person. A party may, by his
own words, or conduct, voluntarily adopt or ratify
another’s statement. By adoptive admission, a third
person’s statement becomes the admission of the party
embracing or espousing it.
Q: When can there be adoptive admission?
A:
1. When a party expressly agrees to or concurs in an
oral statement made by another
2. Hears a statement and later on essentially repeats it
3. Utters an acceptance or builds upon the assertion of
another
4. Replies by way of rebuttal to some specific points
raised by another but ignores further points which
he or she has heard the other make
5. Reads and signs a written statement made by
another (Republic v. Kenrick Development Corp.,
2006).
Example: Alleged admissions made by Pres. Estrada when his
options had dwindled (Estrada v. Desierto, 356 SCRA 108).
Effect of extra-judicial confession of guilt; Corpus Delicti
Q: Is extra-judicial confession sufficient to warrant
conviction?
A: An extra-judicial confession, unlike judicial confession is
not sufficient for conviction. The rule requires that the
confession be corroborated by evidence of corpus delicti.
Q: What is corpus delicti?
A: It means the “body of the crime or the offense. Strictly
speaking, it means the actual commission of the crime and
someone criminally responsible therefor. It is the substance
of the crime.
Q: What are the 2 elements of corpus delicti?
A:
1. Proof of the occurrence of a certain event
2. Some person’s criminal responsibility for the act
(People v. Boco, 309 SCRA 42).
Q: How can the corpus delicti be proven?
_____________________________________________
A: It may be proven by circumstantial evidence but such
proof must be convincing and compatible with the nature of
the case.
Dangerous Drugs
In the prosecution for illegal sale of dangerous drugs, it is not
enough to prove that the transaction took place and that the
buyer and seller were identified. The corpus delicti must be
offered in evidence. The police officer must comply with the
proper procedure in the custody of the seized drugs. After
the seizure and confiscation, the drugs must be physically
inventoried and photograph in the presence of the accused,
and or his representative, who shall be required to sign the
copies of the inventory and be given a copy thereof. Failure
to comply with such requirement raises a doubt whether
what was submitted for laboratory examination and
presented on court were the one actually recovered from the
accused.
Theft
Corpus delicti has 2 elements:
a. That the property was lost by the owner;
b. That it was lost by felonious taking
Illegal possession of firearms
The corpus delicti in this crime is the accused’s lack of license
or permit to possess or to carry the firearm, as possession
itself is not prohibited by law.
People v. Sasota (91 Phil 111)
It is not necessary to recover the body or to show where it
can be found in a case of murder or homicide. There are
cases like death at sea, where the finding or the recovery f
the body is impossible. It is enough that the death and the
criminal agency causing it be proven. Also, the element of
eath in the corpus delicti may be established by
circumstantial evidence. Thus, facts are admissible to show
the impossibility of rescue, as at sea, to show the existence
and extent of wounds, and the deceased’s condition of
health; and to show that the wound was sufficient to cause
death and that the party was reported death.
Murder or Homicide
It is not necessary to recover the body of the victim or show
where it can be found.
Sec. 2(d) of Republic Act 7438
Q: What are the requirements in order that an admission of
guilt of an accused during a custodial investigation be
admitted in evidence?
Facultad de Derecho Civil 24
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A:
1. Any extrajudicial confession made by a person arrested,
detained, or under custodial investigation shall be in
writing an signed by such person in the presence of his
counsel or in the latter’s absence, upon a valid waiver,
and in the presence of any of the parents, older brothers
and sisters, his spouse, the municipal mayor, the
municipal judge, district school supervisor, or priest or
minister of gospel are chosen by him; otherwise, such
extrajudicial confession shall be inadmissible as evidence
in any proceeding.
2. The confession must be corroborated by evidence of
corpus delicti (Sec.3, Rule 133).
Sec. 3.Extrajudicial confession, not sufficient ground for
conviction. — An extrajudicial confession made by an
accused, shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (3)
Q: Is an oral confession admissible as evidence of guilt?
A: The oral confession is not admissible as evidence of guilt.
The confession is in the nature of an extrajudicial confession
before an investigator while under custodial investigation.
Note: The above rights refer to an extrajudicial confession of
a person arrested, detained or is under custodial
investigation because a confession made by the accused
before he is placed under custodial investigation need not
comply with the above.
People v. Cabiles (284 SCRA 199)
Thus, if the accused talks to a person (mayor) in a private
meeting and confessed the crime, the constitutional
requirements in a custodial investigation do not apply. When
the accused talked to the mayor as a confidant and not as a
law enforcement officer, the uncounselled confession did not
violate his constitutional rights. Constitutional procedures on
custodial investigation do not apply to spontaneous
statements, not elicited through questioning by authorities,
but given in an ordinary manner whereby the accused orally
admitted having committed the crime. Thus, the confession is
admissible in evidence against him, even when he did so
without the assistance of counsel.
Aquino v. Paiste (G.R. No. 147782)
Custodial investigation involves any questioning initiated by
law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way. It is only after the investigation ceases to be a
general inquiry into an unsolved crime and begins to focus on
a particular suspect, the suspect is taken into custody, and
the police carries out a process of interrogations that lend
_____________________________________________
itself to eliciting incriminating statements, that the rule
begins to operate.
Note: R.A. No, 7438 (Sec.2(f)) has extended the meaning of
custodial investigation to include the practice of issuing an
invitation to a person who is investigated in connection with
an offense he is suspected to have committed.
People v. Ador (432 SCRA 1)
Any waiver of these rights should be in writing and
undertaken with the assistance of counsel. Otherwise, such
admissions are barred as evidence even if such confession
were gospel truth.
Admission by silence
Sec. 32.Admission by silence. — An act or declaration made
in the presence and within the hearing or observation of a
party who does or says nothing when the act or declaration
is such as naturally to call for action or comment if not true,
and when proper and possible for him to do so, may be
given in evidence against him. (23a)
Q: Is admission by silence“admissible evidence”?
A: Yes. The usual pattern for its admissibility involves a
statement by a person in the presence of a party to the
action, criminal or civil. The statement contains assertions
against the party, which, if untrue would be sufficient cause
for the party to deny. His failure to speak against the
statement is admissible as an admission.
The idea of the rule on admission by silence is that if an
accusation is made, and a reasonable person would have
denied the same if it were false, the failure to deny the
accusation by the person accused may be construed as an
implied admission of the truth of the accusation and may be
given in evidence against him.
Not every silence is an implied admission. The silence of a
person under investigation for the commission of an offense
should not be construed as an admission by silence because
of constitutional reasons (R.A. 7438, Sec. 2 (b)).
Q: What are the requisites for admission by silence?
A:
1. That he heard and understood the statement;
2. That he was at liberty to make a denial;
3. That the statement was about a matter affecting his
rights or in which he was interested and which naturally
calls for a response;
4. That the facts were within his knowledge; and
5. That the fact admitted from his silence is material to the
issue.
Facultad de Derecho Civil 25
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Res Inter Alios Acta
Res inter alios acta alteri nocere non debet literally means
that “things done between strangers ought not to injure
those who are not parties to them”
Q: What are the 2 branches of this rule?
A:
1. The rule that the rights of a party cannot be prejudiced
by an act, declaration, or omission of another;
2. The rule that evidence of previous conduct or similar acts
at one time is not admissible to prove that one did or did
not do same act another time.
Sec. 28, Rule 130
Sec. 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. (25a)
Sec. 34, Rule 130
Sec. 34.Similar acts as evidence. — Evidence that one did or
did not do a certain thing at one time is not admissible to
prove that he did or did not do the same or similar thing at
another time; but it may be received to prove a specific
intent or knowledge; identity, plan, system, scheme, habit,
custom or usage, and the like. (48a)
The first branch holds that whatever one says or does or
omits to do should only affect him but should not affect or
prejudice others. Man’s actions and declarations should
affect him alone and should not affect others. Thus, if X
makes a statement before the media admitting his
participation on a murder, his statement is admissible against
him under Sec. 26 of Rule 130.
Sec. 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. (22)
The rest of his statement pointing to Y and Z as co-
participants in the murder are not admissible against Y and Z
under the first branch. Under this rule, the statement of X
should not affect or prejudice Y and Z.
The above rule has reference only to extrajudicial
declarations. Thus, statements made in open court by a
witness implicating persons aside from his own judicial
admissions, are admissible as declarations from one who has
personal knowledge of the facts testified to.
Exceptions to the Res Inter Alios Acta Rule (first branch)
_____________________________________________
Q: What are the exceptions to the Res Inter Alios Acta Rule
(first branch)?
A:
1. Admission by a co-partner or agent
2. Admission by a co-inspirator
3. Admission by privies
Q: What is the basis for the above admissions?
A: The person making the statement is under the same
circumstances as the person against whom it is offered. Such
circumstances gave him substantially the same interest and
the same motive to make a statement about certain matters.
Admissions by a co-partner or agent
Whatever is said by an agent to a third person, during the
course of the agency and within the scope of his actual or
apparent authority, relative to the business contemplated by
the agency, is for legal purposes also the statement of the
principal and is therefore, admissible against said principal.
The declarations of a partner may be admissible against the
other partners of the partnership.
Q: Not every declaration or act made or done by a partner
or agent is admissible against the other partners or the
principal. For the admission of a co-partner or agent to be
admissible, what are the requisites which must concur?
A:
1. The declaration or act of the partner and agent must
have been made or done within the scope of his
authority
2. The declaration or act of the partner and agent must
have been made or done during the existence of the
partnership or agency
3. The existence of the partnership or agency is proven by
evidence other than the declaration or act of the partner
or agent.
Q: What is the rule regarding any declaration made before
the partnership or agency existed?
A: They are not admissible against the partners or the
principal but remains admissible against the partner or agent
making the declaration. It is also necessary for the application
of the exception that the proof of the agency or partnership
be from an source independent of the declaration made by
the partner or agent.
NOTE: The above rules also apply to the declarations or acts
of a joint owner, joint debtor, or other persons jointly
interested with the party.
Admissions by a co-conspirator
Facultad de Derecho Civil 26
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Q: When is there a conspiracy?
A: When two or more persons come to an agreement
concerning the commission of a felony and decide to commit
it (Art. 8, RPC).
Q: What is the effect of conspiracy?
A: Once conspiracy is proven, the act of one is the act of all.
Q: What are the requisites?
A:
1. The declaration or act be made or done during the
existence of the conspiracy
2. The declaration or act must relate to the conspiracy
3. The conspiracy must be shown by evidence other than
the declaration or act.
NOTE: Incriminating declarations of co-conspirators made in
the absence or without the knowledge of the others after the
conspiracy has come to an end is inadmissible.
G.R.: An extrajudicial confession made by an accused is
admissible against him but not admissible against his co-
accused who took no part in the confession
XPN: When the declarant or admitter repeats in court his
extra-judicial confession during the trial and the other
accused is accorded the opportunity to cross-examine the
admitter, such confession or admission is admissible against
both accused.
Q: Distinguish judicial and extra-judicial confession.
A:
EXTRA-JUDICIAL JUDICIAL
May be given in evidence Admissible against the
against the confessant but declarant’s co-accused since
not against his co-accused the latter are afforded the
since the latter are not opportunity to cross-examine
afforded the opportunity to the former.
cross-examine him
When the extra-judicial admission of a conspirator is
confirmed at the trial, it ceases to be hearsay.
Q: The res inter alios acta provides that the rights of a party
cannot be prejudiced by an act, declaration, or admission of
another. Consequently, an extra-judicial confession is
binding only upon the confession and is not admissible
against his co-accused. What is the basis for this?
A: On a principle of good faith and mutual convenience, a
man’s own acts are binding upon himself, and are evidence
against him. So are his conduct and declarations.
_____________________________________________
Admission by privies
Q: Who are privies?
A: They are persons who are partakers or have an interest in
any action or thing, or any relation to another.
Examples:
1. A lessor and a lessee; a grantor and grantee;
assignor and assignee are privies in an estate or
contract
2. Executor or administrator and the estate of the
deceased are privies in representation
3. An heir and his ascendant are privies in blood or
succession
Q: What are the requisites for an admission of a
predecessor-in-interest against the successor-in-interest?
A:
1. There must be an act, declaration or an omission by a
predecessor-in-interest
2. The act, declaration, or omission of the predecessor must
have occurred while he was holding the title to the
property
3. The act, declaration or omission must be in relation to
the property.
Offer of compromise in civil cases
In civil cases, an offer of compromise is not an admission of
any liability, and is not an admission against the offeror.
Offer of compromise in criminal cases
An offer of compromise by the accused may be received in
evidence as an implied admission of guilt.
There is no implied admission of guilt if the offer of
compromise is in relation to:
a. Quasi-offenses (criminal negligence)
b. In those cases allowed by law to be compromised.
Plea of Guilty later withdrawn
Q: May the plea of guilty be withdrawn?
A: Yes, Sec. 2 of Rule 116 allows the accused, at arraignment,
to plead guilty to a lesser offense with the consent of the
offended party and the prosecutor provided that the lessor
offense is necessarily included in the offense charged. He may
also plead guilty to a lesser offense even after the
arraignment after withdrawing his plea of not guilty.
Facultad de Derecho Civil 27
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
NOTE: In case the accused withdraws his guilty plea, that plea
of guilty later withdrawn, is not admissible in evidence
against the accused who made the plea.
An unaccepted plea of guilty to a lesser offense
Q: What if the plea of guilty to a lesser offense is not
accepted?
A: The rule does not provide for an adverse consequence of
the unaccepted plea. On the contrary, the rule provides that
an unaccepted plea of guilty to a lesser offense, is not
admissible in evidence against the accused who made the
plea or offer.
_____________________________________________
Q: What is the purpose of the above rule?
A: The rule prohibits the admission of the so-called
“propensity evidence” which is evidence that tends to show
that what a person has done at one time is probative of the
contention that he has done a similar act at another time.
Evidence of similar acts or occurrences compels the
defendant to meet allegations that are not mentioned in the
complaint, confuses him in his defense, raises a variety of
relevant issues, and diverts the attention of the court from
the issues immediately before it. Hence, the evidentiary rule
guards the practical inconvenience of trying collateral issues
and protracting the trial and prevents surprise or other
mischief prejudicial to litigants.

Q: What is the effect of an offer to pay for the medical, When evidence of similar acts or previous conduct is
hospital or other expenses? admissible

A: It is not admissible in evidence as proof of civil or criminal Q: In what purposes may evidence of similar facts is
liability for the injured party. In other jurisdictions, this is also admissible?
known as the Good Samaritan Rule.
A:
Q: What is the Good Samaritan Rule? 1. Specific intent
2. Knowledge
A: It refers to the rendering of voluntary aid to a suffering 3. Identity
person. 4. Plan
5. System
Subsequent remedial measures 6. Scheme
7. Habit
No direct legal provision in this jurisdiction addresses the 8. Custom
question as it is. Under U.S. Federal Rules of Evidence (FRE), it 9. Usage and the like
is prohibited the admission of evidence of subsequent
remedial measures when offered to prove the negligence of NOTE: Evidence of similar acts may frequently become
the defendant. Evidence of such measures may be admissible relevant especially in actions based on fraud and deceit,
to prove some other purpose like the fact that the defendant because it sheds light on the state of mind or knowledge of
had ownership of the hotel or control over the same and all person, his motive or intent, or they may uncover the
the fixtures therein. scheme, design, or plan.

Q: What is the basis of this rule?
A: The rule is based on the policy of encouraging potential
defendants to remedy hazardous conditions without fear tat
their actions will be used as evidence against them.
Q: Where will the admissibility of similar acts or previous
conduct?
A: It would depend on the purposes for which such acts or
conduct are offered.

Evidence of similar conduct (Second branch) NOTE: The past acts of the accused are inadmissible to prove
that he acted in conformity with such previous acts.
G.R.: The law will not consider evidence that a person has
done a certain act at a particular time as probative of a
contention that he has done a similar act at another time.
Chapter III
Sec. 34.Similar acts as evidence. — Evidence that one did or OBJECT AND DOCUMENTARY EVIDENCE
did not do a certain thing at one time is not admissible to
prove that he did or did not do the same or similar thing at I. Object Evidence
another time; but it may be received to prove a specific
intent or knowledge; identity, plan, system, scheme, habit, Rule 130
custom or usage, and the like. (48a)

Facultad de Derecho Civil 28

UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
SECTION 1.Object as evidence. — Objects as evidence are
those addressed to the senses of the court. When an object
is relevant to the fact in issue, it may be exhibited to,
examined or viewed by the court. (1a)
Q: What is object evidence?
A: It is the real thing itself consists of tangible things like gun,
a broken glass, a piece of bloody clothing or the defective
ladder that caused the fall of the plaintiff.
It does not refer to the perception of the witness and
recollection of that perception. It is not a reconstruction of
past events as related by a witness on the stand. It is not a
verbal description of something. It is not a replica or a mere
representation of something.
NOTE: It appeals directly to the senses of the court. Instead of
relying on the recollection of the witnesses, an object
evidence will enable the court to have its own first-hand
perception of the evidence.
Q: What is the effect of object evidence?
A: It could have a very persuasive effect on the part of the
court.
Q: May a human being be a form of real evidence?
A: Yes. Where the racial characteristics of a party is at issue,
the court may, at its discretion, view the person concerned.
The court may likewise allow the exhibition of the weapon
allegedly used in attacking the victim, the bloody garment of
the victim or the personal effect, like the glove, left by the
supposed assailant in the scene of the crime.
Q: Is object evidence limited to visual alone?
A: No, it covers the entire range of human senses: hearing,
taste, smell, and touch. In a case where the issue is
infringement of a musical composition, the court may listen
to the composition involved. The court may not only look at
but also touch the blade of knife to know whether or not it
could have produced the incision characteristic of sharp
blades.
Q: In case of conflict between testimonial and physical
evidence, which should prevail?
A: Where the physical evidence runs counter to the
testimonial evidence, the physical evidence should prevail
(BPI v. Reyes, 2008). Physical evidence is a mute but eloquent
manifestation of truth, and it ranks high in our hierarchy of
trustworthy evidence.
Requisites for admissibility of object evidence
_____________________________________________
Q: What should be the requisites for admissibility of object
evidence?
A:
1. The admissibility of object or real evidence like any other
evidence requires that the object be both relevant and
competent. To be relevant, the evidence must have a
relationship to the fact in issue. To be competent, it must
not be excluded by the rules or by law.
2. For the object not to be excluded by the Rules, the same
must pass the test of authentication. The threshold
foundation for real evidence is its being authenticated.
To authenticate the object, it must be shown that the
object is the very thing that is either the subject matter
of the lawsuit or the very one involved to prove an issue
in the case. Also, there must be someone who should
identify the object to be the actual thing involved in the
litigation. This someone is the witness.
3. It must be emphasized that every evidence, whether it
be a document or an object, needs a witness. Even object
evidence requires statements from witness to make its
way into the realm of admissible evidence. In short,
testimonial evidence provides the foundation for all
types of evidence. The witness should have actual and
personal knowledge of the exhibit he is presenting for
admission.
Sec. 36.Testimony generally confined to personal
knowledge; hearsay excluded. — A witness can testify only
to those facts which he knows of his personal knowledge;
that is, which are derived from his own perception, except
as otherwise provided in these rules. (30a)
Thus, the following are the basic requisites for the
admissibility of an object or real evidence:
a. The evidence must be relevant
b. The evidence must be authenticated
c. The authentication must be made by a competent
witness
d. The object must be formally offered in evidence.
NOTE: After its authentication, the object needs to be offered
in evidence at the appropriate time. The formal offer of
evidence is particularly a vital act before the admission of
evidence because the court shall consider no evidence which
has not been formally offered (Sec. 34, Rule 132).
Sec. 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. (35)
Q: What is the problem with regard the requirement of
relevance and the competence of testimony of the witness?
A: The problem commonly lies in showing that the object
sought to be admitted is in fact the real thing and not a mere
Facultad de Derecho Civil 29
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
substitute or representation of the real thing. This problem is
commonly called laying the foundation for the evidence.
Object evidence and the Right against Self-Incrimination
Q: May the right against self-incrimination be invoked
against object evidence?
A: No. In People v. Malimit (264 SCRA 167), the court held
that the right against self-incrimination finds no application in
the case because no testimonial compulsion was involved.
Accordingly, such right is a prohibition of the use of physical
or moral compulsion, to extort communication from him. It is
a prohibition against legal process to extract from the
accused’s own lips, against his will, admission of guilt. It does
not apply in this case where the evidence sought to be
excluded is not an incriminating statement but an object
evidence.
Categories of Object Evidence
Q: What are the classifications of object evidence?
A:
a. Objects that have readily identifiable marks (unique
objects);
b. Objects that are made readily identifiable (objects made
unique); and
c. Objects with no identifying marks and cannot be marked
(non-unique marks).
If the object has a unique characteristic, it becomes readily
identifiable (a serial number of a caliber 45 pistol). So long as
the witness testifies that the object has a unique
characteristic, he saw the object on the relevant date,
remembers its characteristics, asserts that the object shown
to him in court is the same or substantially in the same
condition as when he first saw it and alleges that those
characteristics are those of the object he is identifying in
court, the authentication requirement is satisfied.
Otherwise, (like a typical kitchen knife without a serial
number), the witness may be able to testify the same if he
claims that he made the thing acquire a unique characteristic
like placing identifying marks on it. All he has to do is to
testify as to what he did to make the object identifiable and
that the object presented to him for identification in court
has the characteristics he made on the object.
Chain of custody
The third category includes drop of blood or oil, drugs in
powder form, fiber, grains of sand and similar objects. In this
case, the proponent of the evidence must establish a chain of
custody. The purpose is to guaranty the integrity of the
physical evidence and to prevent the introduction o evidence
which is not authentic but where the exhibit is positively
_____________________________________________
identified the chain of custody of physical evidence is
irrelevant.
Since it is called a chain, there must be links to the chain. The
links are the people who actually handled or had custody of
the object. Each link must show how he received the object,
how he handled it to prevent substitution and how it was
transferred to another. Each must testify to make the
foundation complete. This is the ideal way (though this is not
absolutely required.
There is a view that the prosecution is not required to elicit
testimony from every custodian or from every person who
had an opportunity to come in contact with the evidence
sought to be admitted. As long as one of the chains testifies
and his testimony negates the possibility of tampering and
that the integrity of the evidence is preserved, his testimony
alone is adequate to prove the chain of custody.
Lopez v. People
As a method of authenticating evidence, the chain of custody
rule requires that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the matter in
question is what the proponent claims it to be. It would
include the testimony about every link in the chain, in such a
way that every person who touched the exhibit would
describe how and from whom it was received, where it was
and what happened to it while in the witness’ possession, the
condition in which it was received and the condition in which
it was delivered to the next link in the chain. The witness
would describe the precautions taken to ensure that there
had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession
of the same.
The chain of custody rule is indispensable and essential when
the item of real evidence is not distinctive and is not readily
identifiable, or when its condition at the time of testing or
trial is critical, or when a witness has failed to observe its
uniqueness. The rule also applies in case the evidence is
susceptible to alteration, tampering, contamination and even
substitution and exchange. Such dictates the level of
strictness in the application of the chain of custody rule.
A unique characteristic of narcotic substance is that they are
not readily identifiable hence a more stringent standard than
that applied to readily identifiable object is necessary. This
standard entails a chain of custody of the item with sufficient
completeness to render it improbable for the original item to
be exchanged with another, contaminated or tampered with.
Xxx More than just the fact of possession, the fact that the
substance said to be illegally possessed is the very same
substance offered in court as exhibit.
If the object is not readily identifiable, a chain of custody
must be shown. To avoid gaps in the chain of custody and
Facultad de Derecho Civil 30
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
prevent further evidentiary objections, ideally all the persons
who handled the object should be called to the stand
although courts no longer require this rigid process.
Unless a specific provision of law or rule provides otherwise,
the investigator need not testify that the process of sealing
the evidence and the submission to the chemist were done in
the presence of the accused or his representative. This is
because of the presumption that official duty has been
regularly performed (Sec. 3 (m), Rule 131).
Sec. 3 (m) That official duty has been regularly performed;
People v. Tan (348 SCRA 116)
The court should be extra vigilant in trying a drug cases so an
innocent person is not made to suffer the unusually severe
penalties for drug offense. Accordingly, a police buy-but
operation carries a built-in danger for abuse because by its
very nature, anti-narcotics operation involves the need for
entrapment procedures and the use of shady characters as
informants and the secrecy that shrouds drug deals enables
the planting of marijuana or heroin in the pockets or hands of
unsuspecting persons.
Chain of custody in drug cases
Q: What is chain of custody?
A: It means the duly recorded authorized movements and
custody of seized drugs or controlled chemicals or plant
sources of dangerous drugs or laboratory equipment of each
stage, from the time of confiscation or seizure to receipt in
the forensic laboratory to safekeeping to presentation in
court for destruction. It shall also include the identity and
signature of the person who held temporary custody of the
seized item, the date and time when such transfer of custody
were made in the course of safekeeping and use in court as
evidence, and the final disposition (People v. Obmiranis, G.R.
No. 181492).
Article II of R.A. No. 9165
The apprehending team having initial custody and control of
the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the
presence of the accused or the person/s from which such
items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media
and the DOJ, and any elected public official who shall be
required to sign the copies of the inventory and be given a
copy thereof (Sec. 1, par.1).
Note: A mere statement that the integrity and evidentiary
value of the evidence is not enough. It must be accompanied
by proof.
_____________________________________________
People v. Rivera
Failure of the prosecution to show that the police officers
conducted the required physical inventory and photograph of
the evidence confiscated pursuant to said guidelines, is not
fatal and does not automatically render accused’s arrest
illegal or that the items seized/confiscated from him
inadmissible. Accordingly, non-compliance with the
requirements under justifiable grounds, as long as the
integrity and evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall
not render void and invalid such seizures of and custody over
said items.
What is important is the preservation of the integrity and
evidentiary value of the seized items, as the same may be
utilized in the determination of the guilt or innocence of the
accused. This is to remove unnecessary doubts as to the
identity of the evidence. The dangerous drugs itself
constitutes the very corpus delicti of the crime and the fact of
its existence is vital to a judgment of conviction.
Accordingly, the prosecution must show by records or
testimony, the continuous whereabouts of the exhibit at least
between the time it came into possession of the police
officers and until it was tested in the laboratory to determine
its composition up to the time it was offered in evidence.
Q: When will the non-compliance with the procedure shall
not render void and invalid the seizure of and custody of
drugs?
A:
1. When such compliance was under justifiable
grounds; and
2. Integrity and the evidentiary value of the seized are
properly preserved by apprehending team.
People v. Del Monte (G.R. No. 179940)
The issue if there is non-compliance with the law is not
admissibility, but weight—evidentiary merit or probative
value.
Demonstrative Evidence
Q: What is demonstrative evidence?
A: It is not the actual thing but it is referred to as
demonstrative because it represents or demonstrates the
real thing. It is not strictly real evidence because it is not the
very thing involved in the case.
Examples: map, diagram, photograph, model
Facultad de Derecho Civil 31
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
(m)That official duty has been regularly performed;
NOTE: It is not separately defined in the Rules of Court and
appears to have been incorporated under the general term
“object” evidence.
Q: Where does the admissibility of demonstrative evidence
depend?
A: It depends on laying the proper foundation for the
evidence. The rule boils down to one question: Does the
evidence sufficiently and accurately represent the object it
seeks to demonstrate or represent? If it does, the evidence
would be admissible.
Q: For a photograph to be admissible, what is the rule?
A: The same must be relevant and competent. It is competent
when it is properly authenticated by a witness who is familiar
with the scene or person portrayed and who testifies that the
photograph faithfully represents what it depicts.
Q: Should the photographer testify?
A: Some courts insist the photographer to testify but this
view has been eroded by the tendency of modern courts to
admit as witness one who has familiarity with the scene
portrayed (Sison v. People, 250 SCRA 58).
Q: What are the requirements for photographic evidence of
events, acts, or transactions shall be admissible?
A:
1. It shall be presented, displayed, and shown to the court
2. It shall be identified, explained or authenticated by
either:
a. The person who made the recording,
b. Some other person competent to testify on the
accuracy thereof (Sec. 1, Rule 11, Electronic Rules of
Evidence)
NOTE: The admissibility of photographic evidence is within
the discretion of the trial court, and its ruling in this respect
will not be interfered with except upon a clear showing of an
abuse of discretion.
Q: What is the rule regarding motion pictures and
recordings?
A: The rules that apply to motion pictures and recordings.
Because of the possibility of tampering and distortion, courts
have traditionally required a stricter standard for laying the
foundation for motion pictures and tape recordings. Courts
then would require detailed testimony as to the qualifications
of the operator, a detailed description of the equipment
used, the conditions under which the photograph and the
recordings were taken. Modern courts however have taken
_____________________________________________
judicial notice of how motion cameras and tape recorders
work and their general reliability and their prevalent use.
NOTE: The person present when the activities of taking the
pictures and recordings should testify that the motion picture
accurately, faithfully, represents the place or person it
purports to identify.
Q: Does the authentication process need to involve the
person who actually made them?
A: No, it can be done by some other person as long as he is
one who can testify as to its accuracy.
NOTE: There is also a requirement that the recording be
shown, presented, or displayed to the court (Sec. 1, Rule 11,
Rules on Electronic Evidence).
Q: What are the rules regarding diagrams, maps, and
models?
A: These types of evidence are presented to indicate the
relative locations, positions of objects and persons. Aside
from the requirement of relevance, a diagram, map, and
model must be identified by a witness who is familiar with
what the evidence depicts, and that the same is an accurate
representation of the scene it portrays.
NOTE: The question as to the sufficiency of the
authentication is a matter of judicial discretion.
Q: What is the rule regarding x-ray pictures?
A: Also known as the skiagraphs or radiographs, x-ray pictures
are admissible when shown to have been made under
circumstances as to assure their accuracy and where relevant
to a material issue in the case.
Authenticated x-rays are normally involved in personal injury
cases to show the location and the extent of the unjury.
Q: Is the testimony of the person who took the x-ray
required?
A: Because the science of x-ray pictures is now well-founded
and generally recognized, almost all courts no longer require
testimony as to the reliability of an x-ray machine.
NOTE: In-court reenactment of material events by the
witness has been held permissible to help illustrate the
testimony of a witness.
Ephermal Electronic Communications
Q: What are Ephermal Electronic Communications?
Facultad de Derecho Civil 32
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A: They refer to telephone conversations, text messages,
chatroom sessions, streaming audio, and other forms of
electronic communication, the evidence which is not
recorded or retained.
Thus, a claim that the admission of text messages as evidence
constitutes a violation of the right to privacy is unavailing, the
messages being evidence under the rules (Vidallon-Magtolis
v. Salud, 469 SCRA 439).
Q: How shall Ephermal Electronic Communications be
proven?
A: By the testimony of a person who was a party to the same
or by one who has personal knowledge thereof.
Q: What requisites should be proven in order for the audio,
photographic, and video evidence of events, or transactions
be admissible?
A:
1. That the recording shall be shown, presented or
displayed to the court
2. Shall be identified, explained or authenticated by either:
a. The person who made the recording
b. By some other person competent to testify on the
accuracy thereof.
View of an object or scene
Courts have recognized that there are times when a party
cannot bring an object to the court for viewing in the
courtroom. In such a situation, the court may take a view of
an object. The court may take an ocular inspection of a
contested land to resolve questions of fact raised by the
parties.
_____________________________________________
initially considered as not as accurate and authoritative as the
scientific forms of identification evidence such as fingerprints.
However, in 2001, the SC showed signs of opening up to DNA
evidence in Tijing v. CA (G.R. No. 125901), when it recognized
the existence of facility and expertise in using DNA test for
identification and parentage testing, in Tijing case, the SC
held that eventually, courts should not hesitate to rule on the
admissibility of DNA evidence.
In the case People v. Vallejo (382 SCRA 192, 2002), the court
made a landmark decision. It is considered as the first real
breakthrough of DNA as admissible and authoritative
evidence in Philippine jurisprudence. Vallejo moved towards
an open use of DNA evidence in deciding cases.
Q: What are the rules or guidelines to be used by courts in
assessing the probative value of DNA evidence?
A:
1. How the samples were collected
2. How they were handled
3. The possibility of combination of the samples
4. The procedure followed in analyzing the samples
5. Whether the proper standards and procedure were
followed in conducting the tests
6. The qualification of the analyst who conducted the test.
See:
 People v. Janson, 400 SCRA 584
 Tecson v. COMELEC, 424 SCRA 277
 People v. Yatar, 428 SCRA 504, 2004
Rule on DNA evidence (RDE)
Rule on DNA Evidence (RDE) was issued by the Court in A.M.
No. 06-11-5-SC.

NOTE: The court has an inherent power to order a view when Q: In what situations do RDE apply?
there is a need to do so.
A:
Q: Is this mandatory? 1. Criminal actions
2. Civil actions
A: A view disrupts the usual trial process and is time- 3. Special proceedings
consuming. Hence, in almost all jurisdictions, trial judge is
granted discretion to grant or refuse a request for a view. Q: What is DNA?

NOTE: The inspection may be made inside or outside the A: It refers to deoxyribonucleic acid which is the chain of
courtroom. An inspection or view outside the courtroom molecules found in every nucleated cell of the body
should be made in the presence of the parties or at least with
previous notice to them. Q: What is DNA pofile?

DNA Evidence A: It is the genetic information derived from DNA testing of

Q: What is the rule regarding DNA evidence?
A: In Augustin v. CA (460 SCRA 315), the Court briefly
sketched its past decisions on DNA testing which the Court
biological samples obtained from a person where such
biological sample is clearly identifiable as originating from
that person.
Q: What is DNA evidence?

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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A: The totality of the DNA profiles, results and other genetic
information directly generated from the DNA testing of
biological samples.
NOTE: It is a scientific fact that the totality of an individual’s
DNA is unique for the individual, except for identical twins.
Q: How may an order for a DNA testing be obtained?
A: A person who has legal interest in the litigation may file an
application before the appropriate court, at any time.
Q: What are the requisites for the order?
A:
1. A biological sample exists that has relevance to the case
2. The biological sample:
a. Was not previously subjected to the DNA testing
requested
b. If it was previously subjected to DNA testing, the
results may require confirmation for good reasons.
3. The DNA testing uses a scientifically valid technique
4. The DNA testing has the scientific potential to produce
new information that is relevant to the proper resolution
of the case
5. The existence of other factors, if any, which the court
may consider as potentially affecting the accuracy and
integrity of the DNA testing.
Q: What may an order contain?
A:
1. Take biological samples from any person or crime scene
evidence
2. Impose reasonable conditions on the testing to protect
the integrity of the biological sample and the liability of
the test results.
NOTE: The court may motu propio order a DNA testing.
Q: Is a court order always required before undertaking a
DNA testing?
A: No. RDE allows a testing without a prior court if done
before a suit or proceeding is commenced at the behest of
any party including law enforcement agencies.
Q: Is the order of the court granting a DNA testing
appealable?
A: No, it is immediately executor as provided by Sec. 5 of the
RDE.
Q: Is there an automatic admission of the DNA evidence
obtained in the testing?
_____________________________________________
A: None. The grant of the DNA testing application shall not be
construed as an automatic admission into evidence of any
competent of the DNA evidence that may be obtained as a
result of the testing. This means that the court will still have
to evaluate the probative value of the proposed evidence
before its admission.
Q: What are the matters to be considered for the
determination of the probative value of the DNA evidence?
A:
1. The chain of custody, including how the biological
samples were collected, how they were handled, and the
possibility of contamination of the samples.
2. The DNA testing methodology, including the procedure
followed in analyzing the samples, the advantages and
disadvantages of the procedure, and the compliance with
the scientifically valid standards in conducting the tests.
3. The forensic DNA laboratory, including its accreditation
and the qualification of the analyst who conducted the
test; if the laboratory is not accredited, the court shall
consider the relevant experience of the laboratory in
forensic casework and its credibility shall be properly
established
4. The reliability of the testing result.
Q: If a person has already been convicted under a final and
executor judgment, may he still avail of DNA testing?
A: Yes. The test after his conviction is termed a “post-
conviction.” It may be available to:
a. The prosecution
b. To the person conviction by final and executory
judgment provided that the ff. requisites are
present:
1. A biological sample exists
2. Such example is relevant to the case
3. The testing would probably result in the
rehearsal of the judgment of conviction.
Q: Is a court order required for a post DNA testing?
A: No. It may be available without need of prior court order.
Q: What remedy is available to the convict if the results of
the post DNA testing are favorable to him?
A: He may file a petition for a writ of habeas data in the court
of origin. The court shall then conduct a hearing and in case
the court finds that the petition is meritorious, it shall reverse
or modify the judgment of conviction and order the release of
the convict, unless his detention is justified for a lawful cause.
The rule also allows the petition to be filed either in the CA or
the SC, or with any member of said courts.
Q: Are the DNA profiles of a person open to public scrutiny?
Facultad de Derecho Civil 34
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A: No, they are confidential.
Q: To whom they may be released?
A:
1. The person from whom the sample was taken
2. Lawyers representing parties in the case or action where
the DNA evidence is offered and presented or sought to
be offered and presented
3. Lawyers of private complainants in a criminal action
4. Duly authorized law enforcement agencies
5. Other persons as determined by the Court.
Q: May the person from whom the biological sample was
taken request that the result be disclosed to the person
designated in his request?
A: Yes, but such request must be in writing and verified and
filed with the court that allowed the DNA testing.
Q: What is the duty of the Trial courts?
A: They are mandated to preserve the DNA evidence in its
totality, including all biological samples, DNA profiles and
results or other genetic information obtained from DNA
testing in accordance with the RDE.
Paraffin tests
Q: State the rule regarding paraffin tests.
A: Paraffin tests generally have been considered as
inconclusive by the court because scientific experts occur in
the view that paraffin tests have proved extremely unreliable
in use. The test can only establish the presence or absence of
nitrates or nitrites on the hand but the test alone cannot
determine whether the source of the nitrates or nitrites was
the discharge of the firearm.
Q: What is the effect of a negative result?
A: The argument that the absence or negative result of
gunpowder nitrates from the paraffin test conducted shows
an absence of physical evidence that one fired a gun, is
untenable as it is possible for one to fire a gun and yet be
negative as when the hands are washed before the test
(People v. Cajumocan, 430 SCRA 311).
Q: What about a positive result?
A: The presence should be taken only as an indication of a
possibility or even a probability but not of infallibility that a
person has fired a gun, since nitrates are also found in
substances other than gunpowder such as in explosives,
fireworks, fertilizers and pharmaceuticals, tobacco and
leguminous plants.
_____________________________________________
Q: What is the probative value of paraffin tests?
A: They are merely corroborative, neither proving nor
disproving that a person did indeed fire a gun.
Q: What factors may affect the results?
A: Factors such as the wearing of gloves, perspiration of
hands, wind direction, wind velocity, humidity, climate
conditions, the length of the barrel of the firearm, the open
or closed trigger guard of the firearm (People v. Buduhan,
2008).
Polygraph tests (Lie detector tests)
Polygraph test operates on the principle that stress causes
physiological changes in the body which can be measured to
indicate whether the subject of the examination is telling the
truth. Sensors are attached to the subject so that the
polygraph can mechanically record the subject’s physiological
responses to a series of questions.
Q: What is the probative value of polygraph tests?
A: Courts uniformly reject the results of polygraph tests when
offered in evidence for the purpose of establishing the guilt
or innocence of the accused of a crime because it has not yet
attained scientific acceptance as reliable and accurate means
of ascertaining truth or deception.
II. Documentary Evidence
Q: What is the scope of documentary evidence?
A: Documents as evidence do not necessarily refer to
writings. They may refer to any other material like objects as
long as the material contains letters, words or numbers,
figures, symbols or other modes of written expression and
offered as proof of their contents.
Q: What are the categories of documents as evidence?
A:
1. Writings
2. Any other materials containing modes of written
expressions
Rule 130
Sec. 2.Documentary evidence. — Documents as evidence
consist of writing or any material containing letters, words,
numbers, figures, symbols or other modes of written
expression offered as proof of their contents. (n)
Facultad de Derecho Civil 35
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Q: What are the examples under the first category?
A: Written contracts and wills
Q: What are the examples under the second category?
A: Those which are not traditionally considered as writings
but are actually objects but which contain modes of written
expressions.
NOTE: Being writings or materials containing modes of
written expressions do not ipso facto make such materials
documentary evidence. For such writings be deemed
documentary, the same must be offered as proof of their
contents. If offered for some other purpose, the writings or
materials would not be deemed documentary evidence but
merely object evidence.
Q: What if a contract is presented in court to show that it
exists or simply to establish its condition?
A: It is not offered to prove its contents, therefore, it is not
considered a documentary evidence but an object or real
evidence.
Q: Is the photocopy real (object) evidence or documentary
evidence?
A: It is a real (object) evidence. Although it is conceded that
the bills contain letters, words or numbers and other modes
of written expression, these facts alone do not make the bills
documentary evidences. To be documentary evidence, the
same must be offered as proof of their contents. The bills are
obviously presented to show that money exchanged hands in
the buy-bust operations and not prove what is written on the
bills.
Q: May a private document be offered and admitted in
evidence both as documentary evidence and as object
evidence?
A: It depends on the purpose for which the document is
offered. If offered to prove its existence, condition or for any
other purpose other than the contents of a document, the
same is considered as an object evidence. When it is offered
as proof of its contents, the same is considered as a
documentary evidence. The document may be offered for
both purposes under the principle of multiple admissibility.
Documents under the Rules on Electronic Evidence
Q: What is electronic evidence under Sec. 1 [h] of Rules on
Electronic Evidence?
A:It refers to information, or the representation, data,
figures, symbols, or other modes of written expressions,
described or however represented, by which a right is
_____________________________________________
established or an obligation is extinguished, or by which a fact
may be proved or affirmed, which is received, recorded,
transmitted, stored, processed, retrieved, or produced
electronically. It includes digitally signed documents and any
print-out or output, readable by sight or other means which
accurately reflects the electronic data message, or electronic
document. The term “electronic document” may be used
interchangeably with “electronic data message.”
Q: Does the rule absolutely require that the electronic
document be initially generated or produced electronically?
A: No. A contract for instance which was prepared through
the traditional written way may be converted to an electronic
document if transmitted or received or later recorded
electronically.
Q:
1. To establish a right
2. To extinguish an obligation
3. To prove or affirm a fact
NOTE: Electronic documents are functional equivalents of
paper-based documents.
Sec. 1 of Rule 3 of the Rules on Electronic Evidence
ELECTRONIC DOCUMENTS
SECTION 1. Electronic documents as functional equivalent of
paper-based documents. – Whenever a rule of evidence
refers to the term of writing, document, record, instrument,
memorandum or any other form of writing, such term shall
be deemed to include an electronic document as defined in
these Rules.
NOTE: The rules of court including the statutes containing
rules of evidence are suppletory to the Rules on Electronic
Evidence.
Q: Who has the burden to prove its authenticity?
A: Sec. 1, Rule 5 of the Rules on Electronic Evidence:
Sec. 2, Rule 5 the Rules on Electronic Evidence
SEC. 2. Manner of authentication. – Before any private
electronic document offered as authentic is received in
evidence, its authenticity must be proved by any of the
following means:
(a) by evidence that it had been digitally signed by the
person purported to have signed the same;
(b) by evidence that other appropriate security procedures
or devices as may be authorized by the Supreme Court or by
law for authentication of electronic documents were
applied to the document; or
Facultad de Derecho Civil 36
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
(c) by other evidence showing its integrity and reliability to
the satisfaction of the judge.
Note: The requirements for the authentication of an
electronic document do not apply to all electronic
documents. Sec. 2 will only apply when the document is a
private electronic document and when the same is offered as
an authentic document.
If the electronic document is offered simply for what it is or
for what is claimed to be regardless of whether or not it is
authentic. Sec. 2 will not apply. The electronic document has
only to be identified pursuant to the suppletory application of
Sec. 20, Rule 132.
Rule 132
Sec. 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.
Note: If the document is electronically notarized, the manner
of authentication under Sec.3 of Rule 5 will not also apply.
When notarized, it is transformed into a public document and
is to be proved in accordance with the Rules of Court.
Sec. 3, Rule 5
SEC. 3. Proof of electronically notarized document. - A
document electronically notarized in accordance with the
rules promulgated by the Supreme Court shall be considered
as a public document and proved as a notarial document
under the Rules of Court.
Sec. 30 of Rule 132
Sec. 30.Proof of notarial documents. — Every instrument
duly acknowledged or proved and certified as provided by
law, may be presented in evidence without further proof,
the certificate of acknowledgment being prima
facieevidence of the execution of the instrument or
document involved. (31a)
Evidentiary concepts involved in the presentation of
documentary evidence
To be admissible, documentary evidence must be relevant
and competent. It is subject to general exclusionary rules
such as the rule against hearsay, best evidence rule and parol
evidence rule.
_____________________________________________
Note: Whenever a documentary evidence is involved, the
best evidence rule, the parol evidence rule and hearsay rule,
or anyone of these rules may come into play. Yet, where the
evidence is offered as an object evidence, best evidence rule,
the parol evidence rule and hearsay rule find no application.
Q: What are the requisites for admissibility of documentary
evidence?
A:
1. The document must be relevant;
2. The evidence must be authenticated;
3. The document must be authenticated by a component
witness; and
4. The document must be formally offered in evidence.
A. Best Evidence Rule
Despite the word “best”, the rule does not proclaim itself as
the highest and most reliable evidence in the hierarchy of
evidence. The word best has nothing to do with the degree of
its probative value in relation to other types of evidentiary
rules. It does not mean “most superior” evidence. More
accurately, it is the original document, or the primary
evidence rule.
It is not intended to mean that a weaker evidence be
substituted by a stronger evidence.
The only actual rule that such term denotes is the rule
requiring that the original of a writing must, as a general rule,
be produced.
Sec.3 of Rule 130
Sec. 3.Original document must be produced; exceptions. —
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:
(a)When the original has been lost or destroyed, or cannot
be produced in court, without bad faith on the part of the
offeror;
(b)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;
(c)When the original consists of numerous accounts or other
documents which cannot be examined in court without
great loss of time and the fact sought to be established from
them is only the general result of the whole; and
(d)When the original is a public record in the custody of a
public officer or is recorded in a public office. (2a)
Facultad de Derecho Civil 37
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
There is no reason to apply this rule when the issue does not
involve the contents of a writing. The rule will come into play
only when the subject of inquiry is the contents of a
document. The rule cannot be invoked unless the contents of
a writing is the subject of judicial inquiry, in which case, the
best evidence is the original writing itself.
The Consolidated Bank and Trust Corporation v.
Del Monte Motor Works, Inc. (465 SCRA 117)
The rule finds no application to a case where a party never
disputed the terms and conditions of the promissory note,
leaving the court to conclude that as far as the parties are
concerned, the wordings or the contents of the note are clear
enough and leave no room for disagreement. The defense of
lack of consideration and that the signature in the note was
made in the personal capacity of the respondent are defenses
which do not question the precise wordings of the promissory
note which should have paved the way for the application of
the “best evidence rule.”
NOTE: Where the issue is the execution or existence of the
document or other circumstances surrounding its execution,
the best evidence rule does not apply and testimonial
evidence is admissible.
When the subject of the inquiry is the contents of the
document, no evidence shall be admissible other than the
original thereof (Magdayao v. People, 463 SCRA 677). Any
substitutionary evidence likewise admissible without need to
account for the original (Chua Gaw v. Chua, 2008).
Q: What is the reason for the adoption of the best evidence
rule?
A: It is to prevent fraud or mistake in the proof of the
contents of a writing.
Q: What are the 2 requisites for this rule to apply?
A:
1. The subject matter must involve a document; and
2. The subject of the inquiry is the contents of the
document.
Thus, where the content of a document is not the issue, the
rule cannot be invoked and more so when the evidence does
not involve a document.
The best evidence rule applies only when the subject inquiry
is the contents of a document. It applies only when the
purpose is to establish the terms of a writing. When the
evidence introduced concerns some external fact about a
writing like its existence, execution or delivery without
reference to its terms, the rule cannot be invoked.
_____________________________________________
Where the subject inquiry is to prove some fact like its
existence, or the size of the matter on which it is written, the
writing is not a documentary evidence but a mere object
evidence. The best evidence rule does not apply to an object
evidence. Thus, the original need not be presented. The
existence or condition of that writing may be proved by any
other evidence like oral testimony.
Note: The subject of inquiry is the contents of a writing, not
the truth thereof. Where the truth is in issue, the hearsay rule
will now be invoked.
Q: Is the photocopy admissible in evidence?
A: The photocopy of the bills being object evidence, is
admissible in evidence without violation of the best evidence
rule. The rule applies only to documentary evidence and not
to object evidence.
Q: When a document is merely collateral in issue, will the
rule apply?
A: No. A document is collaterally in issue when the purpose of
introducing the document is not to establish its terms but to
show facts that have no reference to its contents like its
existence, condition, execution or delivery.
If a witness testifies that the victim was writing a letter when
he was shot by the accused, the judge will rule against the
party who insists on the presentation of the letter because
the letter is not the subject of an important issue in the case
and thus is merely collateral.
Reason for the Best Evidence Rule
Primarily, it is the need to present to the court the exact
words of a writing where a slight variation of words may
mean a great difference in rights. Secondly, it is the
prevention and detection of fraud. It is to avoid unintentional
or intentional mistaken transmissions of the contents of a
document through the introduction of selected portions of a
writing to which the adverse party has no full access.
It is also to prevent erroneous interpretations or distortions
of a writing, an objection based on this rule prevents a party
from proving the contents of a writing by a copy thereof or by
oral testimony if the original writing itself is available.
As long as the original evidence can be had, the court should
not receive in evidence that which is substitutionary in
nature, such as photocopies, in the absence of any clear
showing that the original writing has been lost or destroyed
or cannot be produced in court. Such photocopies must be
disregarded, being inadmissible evidence and barren of
probative weight.
Waiver of the Rule
Facultad de Derecho Civil 38
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Sy v. CA (330 SCRA 550)
Although the marriage certificate, license, and other pieces of
documentary evidence were only photocopies, the fact that
these have been examined and admitted by the trial court,
with no objections having been made a to their authenticity
and due execution, means that these documents are deemed
sufficient proof of the facts contained therein.
Q: What to do to apply the Best evidence rule?
A: First, determine the matter inquired into. The procedural
compliance of the rule requires the presentation of the
original document, and not a copy of that document. So long
as the original document is available, no other evidence can
be substituted for the original.
Q: What if the original cannot be presented in evidence?
A: The second step will now come into play. First, find an
adequate legal excuse for the failure to present the original;
and second, present a secondary evidence sanctioned by the
Rules of Court.
Present the original, except when you can justify its
unavailability in the manner provided for by the Rules of
Court.
Excuses for not presenting the original document
(Please refer to Sec. 3, Rule 30)
(a)When the original has been lost or destroyed, or cannot be
produced in court, without bad faith on the part of the
offeror;
(b)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;
(c)When the original consists of numerous accounts or other
documents which cannot be examined in court without great
loss of time and the fact sought to be established from them
is only the general result of the whole; and
(d)When the original is a public record in the custody of a
public officer or is recorded in a public office.
Loss, destruction or unavailability of the original
This exception does not only cover loss or destruction but
also other reasons for the failure to produce the original in
court even if the original is not lost or destroyed, as when the
original is beyond the territorial jurisdiction of the court.
The exception also applies where the original consists of
inscriptions on immovable objects and monuments such as
tombstones because they cannot be produced in court.
Sec. 5 of Rule 130
_____________________________________________
Sec. 5.When original document is unavailable. — When the
original document has been lost or destroyed, or cannot be
produced in court, the offeror, upon proof of its execution
or existence and the cause of its unavailability without bad
faith on his part, may prove its contents by a copy, or by a
recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated. (4a)
Q: What are the requisites so that secondary evidence may
be admitted?
A:
1. The offeror must prove the execution and existence of
the original document;
2. The offeror must show cause of its unavailability; and
3. The offeror must show that the unavailability was not
due to its bad faith.
Q: State the correct order of proof.
A:
1. Existence;
2. Execution;
3. Loss; and
4. Contents
Q: The due execution and authenticity of the document may
be proved by?
A:
1. Anyone who saw the document executed or written; or
2. By evidence of the genuineness of the signature or
handwriting of the maker.
The burden of proof in establishing loss or destruction of the
original is on the proponent of the secondary evidence. The
loss of the original need not be shown to be beyond all
possibility of mistake. A reasonable probability of its loss is
sufficient like by showing that there was a bona fide and
diligent but fruitless search for the document (Paylago v.
Jarabe (22 SCRA 1247).
Q: What should be the order of the presentation of
secondary evidence by the prosecution?
A:
1. A copy of the original
2. A recital of the contents of the contents of the document
in some authentic document
3. By the testimony of witnesses
NOTE: The hierarchy of preferred secondary evidence must
be strictly followed.
Q: What is secondary evidence?
Facultad de Derecho Civil 39
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A: It refers to evidence other than the original instrument or
document itself (EDSA Shangri-La Hotel v. BF Corp., 2008).
Q: May the presentation or the offer of the original be
waived?
A: Yes. If the party against whom the secondary evidence is
offered does not object thereto when the same is offered in
evidence, the secondary evidence becomes primary evidence.
But even if admitted as primary evidence, its probative value
must still meet the various tests by which its reliability is to
be determined.
Original is in the Custody or control of the adverse party
Q: The party who seeks to present secondary evidence must
lay the basis for its introduction. What are the proofs
required?
A:
1. That the original exists
2. That said document is under the custody or control of
the adverse party
3. That the proponent of secondary evidence has given the
adverse party reasonable notice to produce the original
document
4. That the adverse party failed to produce the original
document despite the reasonable notice.
Q: How may notice be given?
A: The notice may be in the form of a motion for the
production of the original, or made in open court in the
presence of the adverse party, or via a subpoena duces
tecum, provided that the party in custody of the original has
sufficient time to produce the same.
When the original consists of numerous accounts
Q: What are the exceptions to the rule regarding secondary
evidence or when is such admissible?
A:
1. If the original consists of numerous accounts or other
documents
2. They cannot be examined in court without great loss of
time
3. The fact sough to be established from them is only the
general result of the whole.
Q: What is the reason for the exceptions?
A: The reason lies in the determination by the court that
production of the original writings and their examination in
court would result in great loss of time considering that the
evidence desired from the voluminous accounts is only the
general result of the whole like a summary of accounts.
_____________________________________________
NOTE: The voluminous records must be made accessible to
the adverse party so that the correctness of the summary of
the voluminous records may be tested on cross-examination
(Compania Maritima v. Allied Free Workers Union, 77 SCRA
24).
Original document is a public record
Public records are generally not to be removed from the
places where they are recorded and kept. Thus, the proof of
the contents may be done by secondary evidence. This
evidence is a certified true copy of the original. This certified
copy is to be issued by the public officer in custody of the
public records.
Q: What is the effect of not offering a document in evidence
after calling for its production and inspection?
A: No unfavorable inference may be drawn from such failure.
This is because under the law, a party who calls for the
production of a document is not required to offer it.
Rule 130
Sec. 8.Party who calls for document not bound to offer it. —
A party who calls for the production of a document and
inspects the same is not obliged to offer it as evidence. (6a)
Meaning of original (Rule 130)
Sec. 4.Original of document. —
(a)The original of the document is one the contents of which
are the subject of inquiry.
(b)When a document is in two or more copies executed at or
about the same time, with identical contents, all such copies
are equally regarded as originals.
(c)When an entry is repeated in the regular course of
business, one being copied from another at or near the time
of the transaction, all the entries are likewise equally
regarded as originals. (3a)
NOTE: An original, under the layman’s concept, is the first
one written and from which mere copies are made,
transcribed, or imitated. Thus, there can only be one original.
This is not however so. When an entry is repeated in the
regular course of business, one being copied from another at
or near time of transaction, all the entries are equally
regarded as originals.
Q: To be considered as originals, what are the requisites?
A:
1. There must be entries made and repeated in the course
of business
2. The entries must be at or near the time of the
transaction.
Facultad de Derecho Civil 40
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Thus, when a lawyer writes a pleading in two or more copies
which are executed at the same time, with identical contents,
each document is an original. So are writings with identical
contents made by printing, mimeographing, lithography and
other similar methods executed at the same time. Thus, each
newspaper sold in the stand is an original in itself.
Q: What if carbon sheets are inserted between two or more
sheets of paper, and the signature on the first sheet being
reproduced in the sheets beneath by the same stroke of the
pen or writing medium?
A: All sheets are deemed as originals.
NOTE: Where a document is executed in duplicate or
multiplicate form, each one of the parts is primary evidence
of the contents of the document, and the other need not to
be produced. In such case, each is deemed an original.
If several copies of a document are made at the same time by
inserting in each page a carbon paper and only one of them is
signed, the signed copy is the original and the others are only
copies.
Q: Which is the original in case of telegraph company who
failed to transmit a message?
A: The original is the message submitted to the company for
transmission. But if the suit is for damages by sender against
the company because of delay, the original would be the
message as received by the recipient.
Q: In an action to collect the promissory note, which is the
original copy?
A: The original is one typed and signed by both parties and
which was lost.
Q: Can the photocopies in the hands of the parties be
considered as duplicate originals?
A: No. They cannot be deemed as having been made at the
same time with the original because they were not signed
unlike the original.
Originals under the Rules on Electronic evidence
Q: What is the original under the Rules on Electronic
evidence?
A: It is the print-out or output readable by sight or other
means, provided it is shown to reflect the data accurately
Sec. 1, Rule 4, Rules on Electronic evidence
BEST EVIDENCE RULE
_____________________________________________
SECTION 1. Original of an electronic document. – An
electronic document shall be regarded as the equivalent of
an original document under the Best Evidence Rule if it is a
printout or output readable by sight or other means, shown
to reflect the data accurately.
Sec.2
SEC. 2. Copies as equivalent of the originals. – When a
document is in two or more copies executed at or about the
same time with identical contents, or is a counterpart
produced by the same impression as the original, or from
the same matrix, or by mechanical or electronic re-
recording, or by chemical reproduction, or by other
equivalent techniques which is accurately reproduces the
original, such copies or duplicates shall be regarded as the
equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall
not be admissible to the same extent as the original if:
(a) a genuine question is raised as to the authenticity of the
original; or
(b) in the circumstances it would be unjust or inequitable to
admit a copy in lieu of the original.
Original printout of facsimile transmissions
Q: Is a printout of a facsimile transmission an electronic data
message or electronic document?
A: No, it does not include a facsimile transmission. It is not
the functional equivalent of an original under the Best
Evidence Rule and is not admissible as electronic evidence.
Moreover, a photocopy of such fax transmission cannot be
considered as an electronic evidence.
Garvida v. Sales, Jr. 338 Phil 484
A facsimile is not a genuine and authentic pleading. It is, at
best, an exact copy preserving all the marks of an original.
Without the original, there is no way of determining on its
face whether the facsimile pleading is genuine and authentic
and was originally signed by the party and his counsel. It may
in fact, be a sham pleading.
B. Parol Evidence Rule
Among the various evidentiary rules, it is the parol evidence
rule that has direct application to the law on contracts.
Q: When is the rule applicable?
Facultad de Derecho Civil 41
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A: It applies only to contracts which the parties have decided
to set forth in writing, i.e. as Sec. 9 of Rule 130 provides:
Rule 130
Sec. 9.Evidence of written agreements. — When the terms
of an agreement have been reduced to writing, it is
considered as containing all the terms agreed upon and
there can be, between the parties and their successors in
interest, no evidence of such terms other than the contents
of the written agreement.
However, a party may present evidence to modify, explain
or add to the terms of written agreement if he puts in issue
in his pleading:
(a)An intrinsic ambiguity, mistake or imperfection in the
written agreement;
(b)The failure of the written agreement to express the true
intent and agreement of the parties thereto;
(c)The validity of the 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. (7a)
Q: What if the agreement is oral?
A: It does not apply.
NOTE: The contract does not define a contract as a
document, a deed or an instrument. The document or the
deed or instrument are merely the tangible evidences of a
contract. It is the meeting of the minds between the parties
that constitutes the contract.
Q: Is a written form required for the existence of a contract?
A: No. The law provides that contracts shall be obligatory, in
whatever form they may have been entered into, provided all
the requisites for their validity are present such as:
a. Consent
b. Object
c. Cause
Q: When a written agreement is entered, any extraneous or
parol evidence will be inadmissible for what purposes?
A:
1. To modify
2. To explain
3. To add to the terms of the written agreement.
Q: What is the purpose of the parol evidence rule?
A: It forbids any addition to, or contradiction of, the terms of
a written agreement by testimony or other evidence
_____________________________________________
purporting to show that different terms were agreed upon by
the parties, varying the purport of the written contract.
Whatever is not found in the writing is understood to have
been waived and abandoned (SeaOil Petroleum Corp. v.
Autocorp Group, 2008; Estrada v. Ramos, 468 SCRA 597).
In general, the parol evidence rule is designed to give
certainty to written transactions, to preserve the reliability
and to protect the sanctity of written agreements.
NOTE: Not all writings will trigger the application of the parol
evidence rule. That writing must embody an agreement.
Q: Should the writing that embodies the agreement of the
parties be in a particular form?
A: No, it only makes reference to writing, not a public writing
or private writing.
Application of the Rule only to parties and their successors-
in-interest
Q: Who are bound by the parol evidence rule?
A: Only the parties. The rule that the terms of an agreement
are to be proven only by the contents of the writing itself
refers to suits between parties to the contract and their
successors in interest. The rule does not bind suits involving
strangers to the contract.
Application of the Rule to Wills
The parol evidence rule applies to contractual obligations.
But, it also includes wills. There can therefore, be no evidence
of the terms of the will other than the contents of the will
itself.
Q: May an express trust concerning immovable or any
interest therein be proved by parol evidence?
A: No.
How to introduce parol evidence
Q: Is the rule prohibiting parol evidence absolute?
A: No.
Q: What are the exceptions?
A: A party may present evidence to modify, explain, or add to
the terms of the written agreement:
1. An intrinsic ambiguity, mistake, or imperfection in the
written agreement
2. The failure of the written agreement to express the true
intent and agreement of the parties thereto.
3. The validity of the written agreement
Facultad de Derecho Civil 42
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
4. The existence of other terms agreed to by the parties or
their successors-in-interest after the execution of the
written agreement.
Q: What do you mean by introducing parol evidence?
A: It means offering extrinsic or extraneous evidence that
would modify, explain or add to the terms of the written
agreement but parol evidence may only be allowed of any of
the matters mentioned above is put in issue in the pleadings.
Otherwise, parol evidence cannot be introduced.
Q: What are the issues which should be put before the
amendments can be introduced?
A:
1. Mistake or imperfection in the writing
2. The failure to express the true agreement of the parties
and the validity of the agreement.
It is not the province of the courts to amend a contract by
construction, or to make a new contract for the parties by
interjecting material stipulations, or even to read into the
contract words which it does not contain. It is only where a
party puts in issue in the pleadings the failure of the written
agreement to express the true intent of the parties thereto
said party may present evidence to modify, explain or add to
the terms of the written agreement.
To justify the introduction of parol evidence a party must
establish that an alleged agreement failed to express the true
intent of the parties. Until and unless this has been
successfully carried out, there is no right in esse to speak of.
Accordingly, parol evidence cannot serve the prupoe of
incorporating into the contract additional contemporaneous
conditions which are not mentioned at all in writing unless
there has been fraud or mistake.
Pilipinas Bank v. CA (G.R. No. 141060)
For parol evidence to be admissible to vary the terms of the
written agreement, the mistake or imperfection thereof or its
failure to express the true agreement of the parties should be
put in issue by the pleadings. Accordingly, when the terms of
an agreement have been reduced to writing, it is considered a
containing all the terms agreed upon and there can be,
between the parties and their successors-in-interest, no
evidence of such other terms other than the contents of the
written agreement.
Prior, contemporaneous and subsequent agreements
Traditional rules limit the inadmissibility of parol evidence or
extrinsic evidence to prior or contemporaneous stipulations.
Hence, if a written agreement was executed by the parties on
Dec.22, 2008, agreements before that date or even on the
same date which modify, alter, or contradict the stipulations
_____________________________________________
written into the Dec.22 agreement are not admissible since
these constitute parol evidence. On the other hand, a January
5 the agreement would be admissible because subsequent
agreements were not barred by parol evidence rule.
The parties to a written agreement may show written
agreement, they have entered into an oral contract tending
to waive, dissolve, or annul the former agreement, or in any
manner to add to, or subtract from or vary or qualify the term
thereof.
The rule prohibiting the admission of evidence aliunde or
extrinsic evidence did not prohibit proof of an agreement
entered into after the written instrument was executed,
notwithstanding that such agreement may have the effect of
adding to, changing or modifying the written agreement of
the parties. Thus, parol evidence on subsequent agreements
may be admitted.
Intrinsic ambiguity in the writing
An instance when evidence aliunde or parol evidence may be
allowed to modify, explain or even add to the written
agreement is when an intrinsic ambiguity exists in the written
agreement. Yet, mere existence of n intrinsic ambiguity will
not authorize the admission of parol evidence. It is important
tha the intrinsic ambiguity be put in issue in the party’s
pleading. It is the raising of the issue of intrinsic ambiguity
which will authorize the introduction of parol evidence.
Q: What is intrinsic or latent ambiguity?
A: It is one which is not apparent on the face of the document
but which lies in the person or thing that is the subject of the
document or deed. Ambiguity is intrinsic or latent when the
language of the writing is clear and intelligible and suggests
but a single meaning but some matter extraneous to the
writing creates the ambiguity.
In this type of ambiguity, the document is clear on its face but
matters extraneous to the agreement create the ambiguity.
Note: Where the ambiguity is patent or extrinsic, parol
evidence will not be admitted even if the same is put in issue
in the pleading.
Q: What is extrinsic or patent ambiguity?
A: It is that which appears on the very face of the instrument,
and arises from the defective, obscure, or insensible language
used. Parol evidence is not admissible to explain the
ambiguity otherwise the court would be creating instead of
construing a contract.
Note: The rule only allows parol evidence in the case of an
intrinsic or latent ambiguity.
Facultad de Derecho Civil 43
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Mistake or imperfection in the writing and failure to express
the true agreement of the parties
The admission of evidence aliunde may be justified where
there is a mistake or imperfection in the written agreement.
This mistake or imperfection must be put in issue in the
pleading by the party who wants to prove the defect in the
writing.
Failure of the writing to express the true agreement of the
parties is another ground for admitting parol evidence as long
as the issue is raised in the pleadings.
Q: What does mistake or imperfection in writing here
mean?
A: This only means that despite the meeting of the minds, the
true agreement of the parties is not reflected in the
instrument.
Q: What are the other reasons which made the instrument
unable to express the true intention of the parties?
_____________________________________________
2. An instrument may be reformed if the instrument does
not express the true intention of the parties because of
lack of skill of the person drafting the instrument
3. If the parties agree upon mortgage or pledge of property,
but the instrument states that the property is sold
absolutely or with the right to repurchase, reformation is
proper
Q: Reformation of the instrument cannot be brought to
reform certain things. Give examples:
A:
1. Simple donations inter vivos wherein no condition is
imposed
2. Wills
3. When the agreement is void
Q: Distinguish between Best Evidence Rule and the Parol
Evidence Rule.
A:

A: BEST EVIDENCE RULE PAROL EVIDENCE RULE

1. Fraud Establishes a preference for Not concerned with the
2. Inequitable conduct the original document over a primacy of evidence but
3. Accident secondary evidence thereof presupposes that the original
4. Ignorance is available
5. lack of skill Precludes the admission of Precludes the admission of
6. negligence secondary evidence if the other evidence to prove the
7. bad faith on the part of the person drafting the original document is terms of a document other
instrument (Arts. 1359 and 1364 of the NCC) available than the contents of the
document itself for the
Q: What is the remedy if there is a meeting of minds of the purpose of varying the terms
parties but their true intention is not expressed in the of the writing
instrument because of the above-mentioned causes? Can be invoked by any Can be invoked only by the
litigant to an action whether parties to the document and
A: One of the parties may ask for the reformation of the or not said litigant is party to their successors-in-interest
instrument (Art. 1359, NCC). the document involved
Applies to all forms of writing Applies to written
Q: What if there is no meeting of minds? agreements (contracts)

A: The proper remedy is not reformation of the instrument Waiver of Parol Evidence Rule
but an action for annulment (Art. 1359, NCC).
Q: Can the parol evidence rule be waived?
Q: What is an action for reformation?
A: Yes:
A: It presupposes that there is nothing wrong with the 1. by failure to invoke the benefits of the rule
contract itself because there is a meeting of minds of the 2. by failure to object to the introduction of evidence
parties. Art. 1359 does not in fact refer to a reformation of aliunde.
the contract but of the instrument.
Probative value
Examples:
1. The parties have agreed on the size of the land subject of Admissibility is not the equivalent of probative value or
the sale. By an act of fraud, a smaller area is indicated in credibility.
the deed.
C. Authentication and Proof of Documents (Rule 132)

Facultad de Derecho Civil 44

UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Concept of authentication
Authentication occupies a vital place in the presentation of
evidence.
Q: What may be the object of authentication?
A: Not only documents but also objects introduced in
evidence need to be authenticated.
Authentication is the preliminary step in showing the
admissibility of an evidence.
Example: A weapon is found in the crime scene. To be
admissible in evidence, it must be authenticated. This means
that it must be shown to the satisfaction of the court that the
weapon in court is the very same weapon found in the scene
is the same. Thus, the court must call someone to
authenticate the same. He could be the police investigator or
someone else who handled the evidence.
Q: Is litigation involved in the authentication of either object
or documentary evidence?
A: Yes, it is always involved.
Q: What is the presumption under our jurisdiction?
A: That objects and documents presented in evidence are, as
a rule, counterfeit. Thus, evidence is not presumed to be
authentic.
Q: Does authentication of a private document require a
seal?
A: No. There shall be no difference between sealed and
unsealed private documents insofar as their admissibility is
concerned.
Authentication under Rules on Electronic Evidence
Q: Who bears the burden of proof?
A: The person seeking to introduce an electronic evidence.
Q: What are the requirements for the authentication of an
electronic evidence?
A:
1. By evidence that it had been digitally signed by the
person purported to have signed the same
2. By evidence that other appropriate security procedures
or devices as may be authorized by the SC or by law for
authentication an electronic documents were applied to
the document
_____________________________________________
3. By other evidence showing its integrity and reliability to
the satisfaction of the judge (Sec.2, Rule 5, Rules on
Electronic Evidence)
Concept of document
Q: What is a document?
A: It means a deed, instrument, or other duly authorized
paper by which something is proved, evidenced or set forth.
Q: When may documents be considered as documentary
evidence?
A: Only when it is offered as proof of their contents.
Otherwise, it is a mere object when the purpose is merely to
prove its existence.
Q: What are the classifications of documents?
A:
1. Public
2. Private
Rule 132
Sec. 19.Classes of Documents. — For the purpose of their
presentation evidence, documents are either public or
private.
Public documents are:
(a)The written official acts, or records of the official acts of
the sovereign authority, official bodies and tribunals, and
public officers, whether of the Philippines, or of a foreign
country;
(b)Documents acknowledge before a notary public except
last wills and testaments; and
(c)Public records, kept in the Philippines, of private
documents required by law to the entered therein.
All other writings are private. (20a)
Q: Do written official acts, or records of the official acts of
the sovereign authority refer only to those of the
Philippines?
A: No. They refer also to those of a foreign country.
Documents acknowledged before a notary public except last
wills and testaments which are private documents even if
notarized.
NOTE: In the case of a public record of a private document
required by law to be entered into a public record, the public
document does not refer to the private document itself but
the public record of that private document.
Q: What is a private document?
Facultad de Derecho Civil 45
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A: The law does not give any exact definition.
Church registries
It is well-settled that Church registries of birth, marriages, and
deaths made subsequent to the promulgation of General
Orders No. 68 and Act No. 190 are no longer public writings,
nor are they kept by duly authorized officials. They are
private writings and their authenticity must be proved, as are
all other private writings.
Importance of knowing whether a document is
public or private ( Rule 132)
Sec. 20.Proof of private document. — Before any private
document offered as authentic is received in evidence, its
due execution and authenticity must be proved either:
(a)By anyone who saw the document executed or written;
or
(b)By evidence of the genuineness of the signature or
handwriting of the maker.
Any other private document need only be identified as that
which it is claimed to be. (21a)
Before the admission of a private document in evidence that
is offered as authentic, its due execution and authenticity
must be proved. This does not apply to a public document
which is admissible without further proof of its due execution
and genuineness.
Rule 132
Sec. 30.Proof of notarial documents. — Every instrument
duly acknowledged or proved and certified as provided by
law, may be presented in evidence without further proof,
the certificate of acknowledgment being prima
facieevidence of the execution of the instrument or
document involved. (31a)
Notarized documents, being public documents, do not
require authentication, unlike private documents. They also
enjoy prima facie presumption of authenticity and due
execution. It enjoys the presumption of regularity. It is a
prima facie evidence of the truth of the facts stated therein
and a conclusive presumption of its existence and due
execution. To overcome this presumption, there must be
sufficient, clear and convincing evidence as to exclude all
reasonable controversy as to the falsity of the certificate. In
the absence of such proof, the document must be upheld.
The one who denies the due execution of deed where one’s
signature appears has the burden of proving that contrary to
the recital in the jurat, one never appeared before the notary
public and acknowledge the deed to be a voluntary act.
_____________________________________________
Agagon v. Bustamante (A.C. No. 5510)
The notarial seal converts the document from private to
public, after which it may be presented as evidence without
need for proof of its genuineness and due execution.
Rule 132
Sec. 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 person, of the
fact which gave rise to their execution and of the date of the
latter. (24a)
When a public officer in the performance of his duty makes
an entry in the public record, the document of such entry is
deemed prima facie evidence of the facts stated in the entry.
In case of public document, the facts stated therein
constitute evidence of the facts that gave rise to the
execution of such documents and of the date of the
execution of the same.
Evidence of official records of official acts; attestation
While a public instrument does not require the
authentication imposed upon a private document, there is a
necessity for showing to the court that indeed a record of the
official acts of official bodies, tribunals or public officer exists.
Rule 132
The record of a public document may be evidenced by:
Sec. 24.Proof of official record. — The record of public
documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines,
with a certificate that such officer has the custody. If the
office in which the record is kept is in foreign country, the
certificate may be made by a secretary of the embassy or
legation, consul general, consul, vice consul, or consular
agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office.
(25a)
Sec. 25.What attestation of copy must state. — Whenever a
copy of a document or record is attested for the purpose of
evidence, the attestation must state, in substance, that the
copy is a correct copy of the original, or a specific part
thereof, as the case may be. The attestation must be under
the official seal of the attesting officer, if there be any, or if
Facultad de Derecho Civil 46
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
he be the clerk of a court having a seal, under the seal of
such court. (26a)
Sec. 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. (27a)
Special power of attorney executed abroad
A notary public in a foreign country is not of those who can
issue the certificate mentioned in Sec.24. Non-compliance
with such rule will render the special power of attorney
inadmissible in evidence. The argument that the lack of
consular authentication is a mere technicality that can be
brushed aside in order to uphold substantial justice is
untenable. Failure to have the SPOA authenticated is not a
mere technicality but a question of jurisdiction.
Q: What are the evidence of public record of a private
document?
A: A public record of a private document may be proved by
any of the following:
a. By the original record; or
b. By a copy thereof, attested by the legal custodian of the
record, with an appropriate certificate that such officer
has the custody (Sec. 27 of Rule 132).
Sec. 27.Public record of a private document. — An
authorized public record of a private document may be
proved by the original record, or by a copy thereof, attested
by the legal custodian of the record, with an appropriate
certificate that such officer has the custody. (28a)
Q: How to prove the lack of record?
A: Proof of lack of record of a document consists of written
statement signed by an officer having custody of an official
record or by his deputy. The written statement must contain
the ff. matters:
a. There has been a diligent search of the record;
b. That despite the diligent search, no record of entry
of a specified tenor is found to exist in the records of
his office.
The statement must be accompanied by a certificate that
such officer has the custody of official records.
Sec. 28.Proof of lack of record. — A written statement
signed by an officer having the custody of an official record
or by his deputy that after diligent search no record or entry
of a specified tenor is found to exist in the records of his
office, accompanied by a certificate as above provided, is
_____________________________________________
admissible as evidence that the records of his office contain
no such record or entry. (29)
Last wills and testament
Last wills and testaments must undergo an authentication
process even if they are notarized in accordance with Art. 806
of the NCC.
Art. 806, NCC
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file
another with the Office of the Clerk of Court. (n)
The Rules while declaring that the term “public document”
includes one acknowledged before a notary public, it
nonetheless expressly excludes last wills and testaments
(Rule 132, Sec.19 (b).
Sec. 19.Classes of Documents. — For the purpose of their
presentation evidence, documents are either public or
private.
Public documents are:
(a)The written official acts, or records of the official acts of
the sovereign authority, official bodies and tribunals, and
public officers, whether of the Philippines, or of a foreign
country;
(b)Documents acknowledge before a notary public except
last wills and testaments; and
(c)Public records, kept in the Philippines, of private
documents required by law to the entered therein.
All other writings are private. (20a)
Also, substantive law provides that no will shall pass either
real or personal property unless proved and allowed in the
proper court. The same rule is echoed in Sec. 1 of Rule 75.
Art. 838, NCC
Art. 838. No will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules
of Court.
The testator himself may, during his lifetime, petition the
court having jurisdiction for the allowance of his will. In such
case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator's a death shall govern.
The Supreme Court shall formulate such additional Rules of
Court as may be necessary for the allowance of wills on
petition of the testator.
Subject to the right of appeal, the allowance of the will,
either during the lifetime of the testator or after his death,
shall be conclusive as to its due execution. (n)
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Sec. 1 of Rule 75
Sec.1. Allowance of will necessary. Conclusive as to
execution.—No will shall pass either real or personal estate
unless proved and allowed in the proper court. Subject to
the right of appeal, such allowance of the will shall be
conclusive as to its due execution.
Poof of a Private Document (Rule 132)
Sec. 20.Proof of private document. — Before any private
document offered as authentic is received in evidence, its
due execution and authenticity must be proved either:
(a)By anyone who saw the document executed or written;
or
(b)By evidence of the genuineness of the signature or
handwriting of the maker.
Any other private document need only be identified as that
which it is claimed to be. (21a)
Where the private document is offered in evidence as
authentic, there is a need to prove its due execution and
authenticity. Sec. 20 recognizes 2 ways of proving the due
execution and genuineness of a private document:
a. Rely on the personal knowledge of the witness (he
personally witnessed the execution or writing of the
document); and
b. The witness testifies or shows evidence that the
signature or handwriting of the maker is genuine.
The rule only applies when a private document is offered as
authentic as when it is offered in evidence to prove that the
document was truly executed by the person purported to
have made the same. Thus, where it is offered in evidence
not as authentic, its genuineness and due execution need not
be proven as when the only purpose is for the efferor to show
that a certain piece of document exists.
Q: How to prove the genuineness of a handwriting?
A: Sec. 22 of Rule 132
Sec. 22.How genuineness of handwriting proved. — The
handwriting of a person may be proved by any witness who
believes it to be the handwriting of such person because he
has seen the person write, or has seen writing purporting to
be his upon which the witness has acted or been charged,
and has thus acquired knowledge of the handwriting of such
person. Evidence respecting the handwriting may also be
given by a comparison, made by the witness or the court,
with writings 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. (23a)
_____________________________________________
Heirs of Amado Celestial v. Heirs of Editha G. Celestial
The rule does not require expert testimony to prove the
handwriting of a person. It may be proven by any witness
who believes it to be the handwriting of a person because:
a. he has seen the person write; or
b. has seen writing purporting to be his upon which the
witness has acted or been charged, and has thus
acquired knowledge of the handwriting of such person;
c. by a comparison made by the witness or the court, with
writings 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.
Ancient documents (Rule 132)
Sec. 21.When evidence of authenticity of private document
not necessary. — Where a private document is more than
thirty years old, is produced from the custody in which it
would naturally be found if genuine, and is unblemished by
any alterations or circumstances of suspicion, no other
evidence of its authenticity need be given. (22a)
This is the exception to the rule requiring proof of the
genuineness and due execution of a private document.
Accordingly, when a document is ancient, evidence of its
authenticity need not be given. There is no necessity for
observance of the authentication process. Yet, it must be
established that document is ancient and that it has the
characteristics of a document provided in Sec. 21. When all
these are done, no other evidence of its authenticity need be
given.
Q: When is a document considered as ancient?
A: A private document is considered as ancient when it 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. Yet, while a
witness is not needed to prove the due execution and
authenticity of the document, a witness is needed to identify
the same.
Note: If the authenticity of a private document has been
admitted by the parties, the rule requires no further
authentication.
Q: How to explain alterations in a document?
A: Sec. 31 of Rule 132
Sec. 31.Alteration in document, how to explain. — The party
producing a document as genuine which has been altered
and appears to have been altered after its execution, in a
part material to the question in dispute, must account for
Facultad de Derecho Civil 48
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
the alteration. He may show that the alteration was made
by another, without his concurrence, or was made with the
consent of the parties affected by it, or was otherwise
properly or innocent made, or that the alteration did not
change the meaning or language of the instrument. If he
fails to do that, the document shall not be admissible in
evidence. (32a)
The party introducing the document as genuine but which
bears alterations after its execution has the duty to account
for any alteration found in the same. He may show any of the
following:
a. that the alteration was made by another, without his
concurrence;
b. that the alteration was made with the consent of the
parties affected by it;
c. that the alteration was otherwise properly or
innocent made, or that the alteration did not change
the meaning or language of the instrument.
Failure to do any of the above will make the document
inadmissible in evidence.
Q: How to prove documents in an unofficial language?
A: Sec.33 of Rule 132
Sec. 33.Documentary evidence in an unofficial language. —
Documents written in an unofficial language shall not be
admitted as evidence, unless accompanied with a
translation into English or Filipino. To avoid interruption of
proceedings, parties or their attorneys are directed to have
such translation prepared before trial. (34a)
Impeachment of judicial record
Judicial record refers to the record of judicial proceedings. It
does not only include official entries or files or the official acts
of a judicial officer but also the judgment of the court.
Sec. 29.How judicial record impeached. — Any judicial
record may be impeached by evidence of: (a) want of
jurisdiction in the court or judicial officer, (b) collusion
between the parties, or (c) fraud in the party offering the
record, in respect to the proceedings. (30a)
Registration of contracts
Where a contract is required by law to be registered, the
same must be, as a rule, in a public document. For example,
for purposes of registration and convenience, acts and
contracts which have for their object the creation,
transmission, modification or extinguishment of real rights
over immovable property must appear in a public document.
Sec. 23 of Rule 132
_____________________________________________
Sec. 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 person, of the
fact which gave rise to their execution and of the date of the
latter. (24a)
Chapter IV
TESTIMONIAL EVIDENCE
A. Qualifications of Witnesses
Nature of Testimonial or Oral Evidence
Q: What are testimonial or oral evidence?
A: It is evidence elicited from the mouth of a witness as
distinguished from real and documentary evidence. It is also
called as viva voce which means living voice. In this evidence,
a human being is called to the stand, is asked questions, and
answers the questions asked of him. He is called the witness.
Competent witness means evidence that is not excluded by
law or by rules. As a applied to a witness, competence means
that the witness is qualified to take a stand and testify. It
means that he is fit or he is eligible to testify on a particular
matter in a judicial proceeding.
If a witness cannot perceive or even if he can perceive he
cannot remember what he has perceived, he is incompetent
to testify. If he has no personal knowledge of an event the
truth of which he wants to prove, he is also incompetent to
testify. Competence of a witness therefore, refers to his
personal qualifications to testify. Competence also includes
the absence of any factor that would disqualify him from
being a witness.
The presentation and introduction of every kind of evidence
needs the intervention of a witness. It is a legal truth that
identification precedes authentication. Being inanimate, a
document or an object cannot speak for itself.
Presumption in favor of competence of a witness
A person who takes the stand as a witness is presumed to be
qualified to testify. A party who desires to question the
competence of a witness must do so by making an objection
as soon as the facts tending to show incompetency are
apparent.
Qualifications of a witness (Rule 130, Sec. 20)
Facultad de Derecho Civil 49
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Sec. 20.Witnesses; their qualifications. — Except as provided
in the next succeeding section, all persons who can perceive,
and perceiving, can make their known perception to others,
may be witnesses.
_____________________________________________
Ability to make known the perception to others
Q: What are the factors involving the ability to make known
the perception of the witness to the court?

Religious or political belief, interest in the outcome of the A:

case, or conviction of a crime unless otherwise provided by 1. Ability to remember what has been perceived; and
law, shall not be ground for disqualification. (18a) 2. The ability to communicate the remembered perception.

Q: What are the qualifications of a witness? People v. Tuangco

A: Deaf-mutes are not necessarily incompetent as witnesses.

They are competent where they:
1. He can perceive; and in perceiving
2. He can make known his perception to others. a. Can understand and appreciate the sanctity of an
3. He must take either an oath or an affirmation (Sec. oath;
1, Rule 132); and b. Can comprehend facts they are going to testify to;
4. He must not possess the disqualifications imposed and
by law or the rules. c. Can communicate their ideas through a qualified
interpreter.
Oath or affirmation (Rule 132)
Competency and Credibility
SECTION 1.Examination to be done in open court. — The
examination of witnesses presented in a trial or hearing Competence Credibility
shall be done in open court, and under oath or affirmation. A matter of law or a matter Nothing to do with the law or
Unless the witness is incapacitated to speak, or the or rule rule
questions calls for a different mode of answer, the answers In deciding competence of Refers to the weight and the
of the witness shall be given orally. (1a) witness, the court will not trustworthiness or reliability
inquire into the of the testimony
The willingness to take an oath or affirmation is an essential trustworthiness of the
qualification of a witness. No court would and should allow witness.
the testimony of someone who desires to testify but who Has reference to the basic Refers to the believability of
refuses to swear or to make an affirmation. qualifications of a witness as the witness and has nothing
his capacity to perceive and to do with law or the rules.
A person is not qualified to be a witness if he is incapable of his capacity to communicate
understanding the duty to tell the truth. An oath or his perception to others. It
affirmation is necessary for the witness to recognize the duty includes the absence of any
to tell the truth. It signifies that he is swearing to the Creator of the disqualifications
“to tell the truth and nothing but the truth” and that if he imposed upon a witness.
does not, he will later on answer for all the lies he is guilty of.
This understanding is not necessarily inferred from the age of Note: One who has contradicting testimony is still competent
the witness. witness.

Ability to perceive Sec. 20-24 of Rule 130

A witness must be able to perceive an event. It would be
absurd to ask a blind man what he saw, or of a deaf person
what he heard. The witness must also have personal
knowledge of the facts surrounding the subject matter of his
testimony. Otherwise, he lacks the competence to testify.
Rule 130, Sec. 36.Testimony generally confined to personal
knowledge; hearsay excluded. — A witness can testify only
to those facts which he knows of his personal knowledge;
that is, which are derived from his own perception, except
as otherwise provided in these rules. (30a)
Sec. 21.Disqualification by reason of mental incapacity or
immaturity. — The following persons cannot be witnesses:
(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. (19a)
Sec. 22.Disqualification by reason of marriage. — During
their marriage, neither the husband nor the wife may testify

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UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
for or against the other without the consent of the affected
spouse, except in a civil case by one against the other, or in
a criminal case for a crime committed by one against the
other or the latter's direct descendants or ascendants. (20a)
Sec. 23.Disqualification by reason of death or insanity of
adverse party. — Parties or assignor of parties to a case, or
persons in whose behalf a case is prosecuted, against an
executor or administrator or other representative of a
deceased person, or against a person of unsound mind,
upon a claim or demand against the estate of such deceased
person or against such person of unsound mind, cannot
testify as to any matter of fact occurring before the death of
such deceased person or before such person became of
unsound mind. (20a)
Sec. 24.Disqualification by reason of privileged
communication. — The following persons cannot testify as
to matters learned in confidence in the following cases:
(a)The husband or the wife, during or after the marriage,
cannot be examined without the consent of the other as to
any communication received in confidence by one from the
other during the marriage except in a civil case by one
against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct
descendants or ascendants;
(b)An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to
him, or his advice given thereon in the course of, or with a
view to, professional employment, nor can an attorney's
secretary, stenographer, or clerk be examined, without the
consent of the client and his employer, concerning any fact
the knowledge of which has been acquired in such capacity;
(c)A person authorized to practice medicine, surgery or
obstetrics cannot in a civil case, without the consent of the
patient, be examined as to any advice or treatment given by
him or any information which he may have acquired in
attending such patient in a professional capacity, which
information was necessary to enable him to act in capacity,
and which would blacken the reputation of the patient;
(d)A minister or priest cannot, without the consent of the
person making the confession, be examined as to any
confession made to or any advice given by him in his
professional character in the course of discipline enjoined by
the church to which the minister or priest belongs;
(e)A public officer cannot be examined during his term of
office or afterwards, as to communications made to him in
official confidence, when the court finds that the public
interest would suffer by the disclosure. (21a)
Q: Is bias a basis for declaring a witness incompetent to
testify?
A: No.
_____________________________________________
NOTE: Persons covered by the Survivorship Disqualification
Rule (Dead Man’s Statute) cannot testify as to any matter of
fact occurring before the death or insanity of the adverse
party.
Drug abuse will not render a person incompetent to testify. It
becomes relevant only if the witness was under the influence
of drugs at the same time he is testifying or at the time the
events in question were observed.
Q: What is the rule regarding questions concerning the
credibility of witnesses?
A: They are best left to the sound discretion of ht trial court
as it is in the best position to observe his demeanor and
bodily movements.
G.R.: The findings of the trial courts on the credibility of
witnesses deserve a high degree of respect and will not be
disturbed
XPN: When the trial court had overlooked, misunderstood, or
misapplied some facts or circumstances of weight and
substance which could reverse a judgment of conviction.
Q: What is the reason for the general rule?
A: The trial courts had observed the witnesses’ deportment
and manner of testifying, the furtive glance, blush of
conscious shame, hesitation, flippant or sneering tone,
calmness, sigh, or the scant or full realization of an oath—all
of these are useful aids for an accurate determination of a
witness’ honesty and sincerity.
Other factors that do not affect the competency of witness
Q: What are the factors which do not, as a general rule,
affect the competency of witness?
A: Sec. 20 of Rule 130:
a. Religious or
b. political belief,
c. interest in the outcome of the case, or
d. conviction of a crime unless otherwise provided by
law
Q: Give an example under the phrase “conviction of a crime
unless otherwise provided by law”?
A: Those who have been convicted of falsification of a
document, perjury or false testimony are disqualified from
being witnesses at a will (Art. 821, NCC). As a consequence,
these persons may not also testify as witnesses in the probate
of a will where the subject of the testimony is the very fact of
execution of the will in their presence.
Facultad de Derecho Civil 51
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Q: Does relationship of a witness with a party render him,
ipso facto, biased?
A: No (Northwest Airlines v. Chiong, 2008).
B. Disqualification of witnesses
Sec. 21 of Rule 130
Sec. 21.Disqualification by reason of mental incapacity or
immaturity. — The following persons cannot be witnesses:
(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. (19a)
Q: What requisites must concur in order to disqualify a
witness by reason of mental incapacity?
A:
1. The person must be incapable of intelligently making
known their perception to others
2. His incapacity must exist at the time of his production for
examination.
Q: What is thus the test to disqualify him?
A: The question is: Is the mental condition of the proposed
witness at the time he is to testify such that he is of his
perception to others? The answer to this question will
determine whether or not a person is a mentally competent
witness.
Child witness meaning
Q: Who is a child witness?
A: Any person who at the time of giving testimony is below
the age of 18 years old (Sec. 4 [a], Rule on Examination of a
Child Witness, A.M. No. 004-07-SC).
Q: What if he is over 18 years of age, can he be considered
as a child?
A: Sometimes, he may. If he is found by the court as unable
to fully take care of himself or protect himself from abuse,
neglect, cruelty, exploitation or discrimination because of
physical or mental disability or condition (Sec. 4 [a], Rule on
Examination of a Child Witness, A.M. No. 004-07-SC).
Competency of a child witness
Q: What is the presumption under the law?
_____________________________________________
A: Every child is presumed qualified to be a witness. This is
based on Sec. 6, Rule on Examination of a Child Witness, A.M.
No. 004-07-SC.
Q: Who has the burden of proof to rebut this presumption?
A: The party challenging his competence.
NOTE: When the court finds that substantial doubt exists
regarding the ability of the child to perceive, remember,
communicate, distinguish truth from falsehood, or appreciate
the duty to tell the truth in court, the court shall conduct a
competency examination of a child.
Q: How will the court conduct the competency examination
of a child?
A: Motu propio or on motion of a party.
Q: What proof is required to prove the necessity of a
competency examination of a child?
A: Proof of such necessity must be grounded on reasons
other than age of the child because such age in itself is not a
sufficient basis for a competency examination of a child.
Q: Is the competency examination of a child open to the
public?
A: No.
Q: Who are allowed to attend the examination?
A:
1. The judge and necessary court personnel
2. The counsel for the parties
3. The guardian ad litem
4. One or more support persons for the child
5. The defendant, unless the court determines the
competence can be fully evaluated in his absence.
Q: Who shall conduct the competency examination of a
child?
A: Only by the judge. If counsels of the parties desire to ask
questions, they cannot do so directly. They are allowed to
submit questions to the judge which he may ask the child in
his discretion.
Q: What should be the nature of the questions?
A: They shall be appropriate to the age and developmental
level of the child. The questions shall not be related to the
issues at the trial but shall focus on the ability of the child to
remember, to communicate, to distinguish between truth
and falsehood and to appreciate the duty to testify truthfully
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
(Sec. 6, [e] Rule on Examination of a Child Witness, A.M. No.
004-07-SC).
NOTE: The assessment is designed to be a continuing one.
Q: When may the court order that the testimony of a child
be taken by live-link television?
A: If there is a likelihood that the child would suffer trauma
from testifying in the presence of the accused, his counsel or
the prosecutor as the case may be.
Q: What kind of trauma is contemplated on?
A: Such that would impair the completeness or truthfulness
of the testimony of the child
Survivorship Disqualification Rule or
the Dead Man’s Statute (Rule 130)
Sec. 23.Disqualification by reason of death or insanity of
adverse party. — Parties or assignor of parties to a case, or
persons in whose behalf a case is prosecuted, against an
executor or administrator or other representative of a
deceased person, or against a person of unsound mind,
upon a claim or demand against the estate of such deceased
person or against such person of unsound mind, cannot
testify as to any matter of fact occurring before the death of
such deceased person or before such person became of
unsound mind. (20a)
Q: Where does this rule apply?
A:
1. Civil case
2. Special proceeding
Q: What are the elements for its application?
A:
1. The defendant in the case is the executor or
administrator or other representative of a deceased
person, or against a person of unsound mind,
2. The suit is upon a claim or demand against the estate of
such deceased person or against such person of unsound
mind
3. The witness is the plaintiff or an assignor of that party, or
a person in whose behalf the case is prosecuted
4. The subject of the testimony is as to any matter of fact
occurring before the death of such deceased person or
before such person became of unsound mind.
Q: What is the purpose of this rule?
A: To level the playing field between the lucky survivor and
the poor deceased, the law-makers devised a rule that would
seal the lips of the survivor by declaring him incompetent to
_____________________________________________
testify on the transaction between him and the deceased.
The rule does not protect the survivor even at the risk of not
paying a just and valid claim because it is the survivor who
has the stronger reason to file a false claim. The rule is for the
protection of the guy who died (Tan v. CA, 295 SCRA 755).
Q: How will the rule be applied?
A:
1. Determine first who the defendant is. He is the executor
or administrator or other representative of a deceased
person, or against a person of unsound mind.
2. The rule will not apply if the plaintiff is the executor or
administrator or other representative of a deceased
person, or the plaintiff is of unsound mind
3. The rule contemplates a suit against the estate, its
executor or administrator and not a suit filed by the
administrator or executor of the estate.
4. When a counterclaim set up by the executor or
administrator of the estate, the case is removed from the
operation of the dead man’s statute.
5. The case should be one upon a claim or demand against
the estate of such deceased person or against such
person of unsound mind
5. The rule does not apply when the action brought is not
against the estate or not upon a claim or demand against
the estate.
Q: What is the nature of the case?
A: It is a civil case, not criminal because the estate itself
cannot be criminally liable.
Q: Who are these persons enumerated by the law?
A: These are the persons who had previous dealings with the
deceased or the person of unsound mind. It does not prohibit
a testimony by a mere witness to the transaction. Thus,
offering a disinterested witness is not a transgression of the
rule since the prohibition extends only to the party or his
assignor or the person in whose behalf the case is
prosecuted.
Q: To what matter does the incompetency is imposed upon
the witness?
A: On any matter of fact occurring before the death of such
deceased person or before such person became of unsound
mind. Hence, if the subject of the testimony is on some other
matter, the witness may testify on such matter as when the
subject of the testimony is on a fact which transpired after
the death of such person. Thus, a testimony favorable to the
estate or to the insane person is not barred since the rule is
designed to protect the interest of the estate or to the insane
person.
Q: How may this rule be waived?
Facultad de Derecho Civil 53
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A:
1. Failing to object to the testimony
2. Cross-examining the witness on the prohibited testimony
(Santos v. Santos, 366 SCRA 395)
3. Offering evidence to rebut the testimony.
Q: True or False: The surviving parties rule bars Maria from
testifying for the claimant as to what the deceased Jose has
said to her, in a claim filed by Pedro against the estate of
Jose.
A: False. The rule bars only a party plaintiff or his assignor or
a person in whose behalf a case is prosecuted. Maria is
merely a witness and is not one of those enumerated as
barred from testifying.
Marital Disqualification Rule (Spousal Immunity)
(Rule 130)
Sec. 22.Disqualification by reason of marriage. — During
their marriage, neither the husband nor the wife may testify
for or against the other without the consent of the affected
spouse, except in a civil case by one against the other, or in
a criminal case for a crime committed by one against the
other or the latter's direct descendants or ascendants. (20a)
Q: What is the purpose of this rule?
A: It is based on the society’s intent to preserve the marriage
relations and promote domestic peace. It is intended to
discourage the commission of perjury.
Alvarez v. Ramirez (473 SCRA 72)
1. There is identity of interests between the husband and
wife
2. If one were to testify for or against the other, there is a
consequent danger of perjury
3. The policy of law is to guard the security and confidences
of private life, even at the risk of an occasional failure of
justice, and to prevent domestic disunion and
unhappiness
4. Where there is want of domestic tranquility there is
danger of punishing one spouse through the hostile
testimony of the other.
Q: What is the scope of the rule?
A: The rule forbids each spouse to testify for or against the
other without the consent of the affected spouse except in
cases authorized by the rule. The prohibition extends not only
to a testimony adverse to the spouse but also in favor. It also
extends both criminal and civil cases because the rule does
not distinguish.
_____________________________________________
Q: What is the important requisite to claim this privilege?
A: It is essential that they be validly married. It requires not
only a valid marriage but the existence of that valid marriage
at the moment the witness-spouse gives the testimony.
Q: Does not apply to illicit cohabitation?
A: No.
NOTE: The prohibited testimony is one that is given or offerd
during the existence of the marriage. Thus, it no longer
applies after the marriage is dissolved.
Q: Should the facts subject of the testimony occurred or
came to the knowledge of the witness before the marriage?
A: It does not matter if the facts subject of the testimony
occurred or came to the knowledge of the witness before the
marriage. The affected spouse may still invoke the rule by
objecting to the testimony as long as the testimony is offered
during the marriage.
Q: What if there was no objection on the part of the other
spouse?
A: The testimony is admissible where no objection is
interposed by the spouse who has the right to invoke the
prohibition.
Q: So, may the rule be waived? How?
A: Yes, either expressly or impliedly.
Q: Does the rule apply only to testimony?
A: No, it also covers production of documents (State v.
Bramlet).
Exceptions to the Marital disqualification rule
Q: What are the Exceptions to the Marital disqualification
rule?
A:
1. in a civil case by one against the other, or
2. in a criminal case for a crime committed by one against
the other or the latter's direct descendants or ascendants
Q: What is the landmark decision under Ordoño v. Daquigan
(62 SCRA 270)?
A: The court allowed the wife to testify against her husband
who was accused of raping her daughter. Accordingly, “The
better rule is that, when an offense directly attacks or directly
and vitally impairs the conjugal relations, it comes within the
Facultad de Derecho Civil 54
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
exception to the statute. The rule that the injury must
amount to physical wrong upon the person is too narrow.”
Q: What is the rule regarding a spouse’s testimony in a civil
case?
A: It contemplates of a situation where one spouse is a
plaintiff or a petitioner and the other spouse is a defendant
or respondent. Where the civil case is between a spouse and
the direct ascendants or descendants of the other, the
marital disqualification rule still applies.
Q: How about in criminal cases?
A: The privilege of one to testify against the other is not
confined to crimes committed by one against the other, but
covers crimes committed by one against the direct
descendants or ascendants of the latter such as the child or
the parents. However, crimes committed against a spouse’s
collateral relatives such as uncles, aunties, and cousins or
nephews and nieces are not covered by the exception
because they are neither direct ascendants nor descendants.
Testimony where spouse is accused with others
Q: May a spouse testify in a trial where the spouse is a co-
accused?
A: The disqualification is between the husband and the wife,
but the rule does not preclude the wife from testifying when
it involves other parties or accused. The court stressed that
the testimony cannot be used against accused-appellant
directly or through the guise of taking judicial notice of the
proceedings in the murder case without violating the marital
privilege. “What cannot be done directly cannot be done
indirectly” (People v. Quidato, 297 SCRA 1).
Testimony be the estranges spouse
When the marital and domestic relations are so strained that
there is no more harmony to be preserved nor peace and
tranquility which may be disturbed, the reason based on such
harmony and tranquility fails. In such case, identity of
interests disappears and the consequent danger of perjury
based on the identity is non-existent (Alvarez v. Ramirez,
2005; People v. Castañeda, 271 SCRA 504).
Marital Privileged Communications
Q: What are the 2 codal provisions which cover marital
disqualifications?
A:
1. Sec. 22 of Rule 130.
2. Sec. 24 (a) of Rule 130:
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Sec. 24.Disqualification by reason of privileged
communication. — The following persons cannot testify as
to matters learned in confidence in the following cases:
(a)The husband or the wife, during or after the marriage,
cannot be examined without the consent of the other as to
any communication received in confidence by one from the
other during the marriage except in a civil case by one
against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct
descendants or ascendants;
Q: For the rule to apply, what are the requisites which
should be present?
A:
1. There must be a valid marriage between the husband
and wife
2. There is a communication received in confidence by one
from the other
3. The confidential communication was received during the
marriage.
Zulueta v. CA (253 SCRA 699)
The law insures absolute freedom of communication
between the spouses by making it privilege. Neither may be
examined without the consent of the other as to any
communication received in confidence by one from the other
during the marriage, save for specified exceptions.
Since the application of the rule requires confidential
information received by one spouse from the other during
the marriage, information acquired by a spouse before the
marriage even if received confidentially will not fall squarely
with Sec. 24(a) but divulging the same may be objected to
under Sec. 22 of Rule 130. The tenor of Sec. 22 distinguish as
to when the information subject of the testimony was
acquired and thus, may cover matters which occurred or
adverse information acquired prior to the marriage. It is
sufficient that the witness-spouse testifies during the
marriage. It is unlike sec. 22(a) which requires that the
confidential information be received during the marriage.
Note: Sec.22 (a) is clear: confidential information received
from a third person is not covered by the privilege.
For the information to be confidential, it must be made
during and by reason of the marital relations and is intended
not to be shared with others. Otherwise, it is not confidential.
Communications in private between husband and wife are
presumed to be confidential. But if a third person is present
with the knowledge of the communicating spouse, this
stretches the web of confidence beyond the marital pair, and
the communication is unprivileged. If the children are present
this also deprives the conversation of protection unless the
children are too young to understand what is said.
Facultad de Derecho Civil 55
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A) _____________________________________________
or testimony may object may be asserted only during
Yet, this may be waived by failure of the claimant to object even after the dissolution of the marriage.
timely to its presentation or by any conduct that may be the marriage. The privilege
construed as implied consent (Lacurom v. Jacoba, A.C. No. does not cease just because
5921). the marriage has ended.
Sec. 22 requires that the This is not required Sec. 24(a)
Q: May the court admit the testimony and affidavits of the spouse for or against whom and applies regardless of
wife against her husband in the criminal case involving child the testimony is offered is a whether the spouses are
prostitution? party to the action. parties or not.

A: If the testimony and affidavit are evidence of the case Sec. 24(a) prohibits the Under Sec. 22, the
against her husband for child prostitution, the evidences are examination of a spouse as prohibition is a testimony for
admissible. The marital privilege communication rule under to matters received in or against the other.
Sec. 24 of Rule 130 and the marital disqualification rule under confidence by one from the
Sec. 22 of Rule 130 do not apply to and cannot be invoked in other during the marriage.
a criminal case committed by a spouse against the direct
descendants of the other (Ordono v. Daquigan). Attorney-Client Privilege (Rule 130)

Explanation of distinction between Marital Disqualification
Rule and Marital Privilege Communication Rule
Sec. 24(a) has reference to confidential communications
received by one spouse from the other during the marriage.
Sec.22 does not refer to confidential communication between
spouses. It will not come into play when the fact pattern in a
problem makes reference to confidential communications
between H and W during the marriage. Sec. 24(a) will instead
apply.
Sec. 24 (b)An attorney cannot, without the consent of his
client, be examined as to any communication made by the
client to him, or his advice given thereon in the course of, or
with a view to, professional employment, nor can an
attorney's secretary, stenographer, or clerk be examined,
without the consent of the client and his employer,
concerning any fact the knowledge of which has been
acquired in such capacity;
Q: What are the requisites for the privilege to arise?

Yet, communications that are not intended to be confidential A:

because they were uttered in the presence of third parties 1. There must be a communication made by the client to
are not deemed confidential even when made during the his attorney or an advice given by the attorney to his
marriage, but Sec. 22 could apply instead of Sec. 24 (a) when client;
used as parts of a testimony for or against the party-spouse. 2. The communication or advice must be given in
confidence; and
Q: Give the distinctions between the 2 rules. 3. The communication or advice must have been given
either in the course of the professional employment or
A: with a view to professional employment.
Sec. 24(a) Sec. 22
Marital Privilege Marital Disqualification Rule Q: Does the rule require a perfected relationship?
Communication Rule
Sec. 24(a) applies only to Sec. 22 includes facts, A: No. Also, the communication between the attorney and
testimonies of a confidential occurrences or information client no longer need to be in the course of an actual
nature received by 1 spouse even prior to the marriage professional employment. It is enough that the
from the other during the unlike Sec.24(a) which communication or advice be “with a view to” professional
marriage and obviously does applies only to confidential employment. Thus, privilege is extended to communications
not include acts merely information during the made for the purpose of securing the services of counsel even
observed by 1 spouse unless marriage. The Sec 24(a) is if the counsel later refuses the professional relationship. This
such acts are intended as a broader because it prevents includes preliminary negotiations within the privilege.
means of conveying testimony for or against the
communication by one to the spouse on any fact and not The relationship between the attorney and the client is said
other. merely disclosure of to exist where a person employs the professional services of
confidential information. an attorney or seeks professional guidance, even though the
lawyer declines to handle the case (Kier v. State).
When sec. 24(a) applies, the Rule 22 on the other hand,
spouse affected by the can no longer be invoked The privilege is predicated upon the client’s belief that he is
disclosure of the information once marriage is dissolved. It consulting a lawyer in that capacity and has manifested his

Facultad de Derecho Civil 56

UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
intention to seek professional legal advice. For the privilege
to exist, payment of a fee is not essential.
US v. Tedder
Where a person consults an attorney not as a lawyer but
merely as a friend, or a participant in a business transaction,
the consultation would not be one made in the course of a
professional employment or with a view to professional
employment would not be within the ambit of the privilege.
The privilege is also not confined to communications
regarding actual pending cases. It may refer to anticipated
litigations or may not refer to any litigation at all. It is
sufficient that the statements have been made in the course f
legitimate professional relationship between the A and the C.
the communication may be oral or written but it also extends
to other forms of conduct like physical demonstration as long
as they are intended to be confidential. Furthermore, the
communication is not deemed lacking in confidentiality solely
because the communication is transmitted by facsimile,
cellular telephone, or other electronic means.
It does not extend to communications where the client’s
purpose is the furtherance of a future intended crime or
fraud or for the purpose of committing a crime or a tort.
Q: Does the privilege preclude inquiries into the fact that
the lawyer was consulted?
A: No, they are not privileged. Even the identity of the client
is not privileged as well as that of the lawyer. Yet, under the
last-link doctrine, non-privilege information, such as the
identity of the client is protected if the revelation of such
information would necessarily reveal privilege information.
Q: Do the statements have to be made personally?
A: The statements of the client need not have been made to
the attorney in person. Those made to the attorney’s
secretary, clerk or stenographer for transmission to the
attorney for the purpose of the professional relationship or
with a view to such relationship or those knowledge acquired
by such employees in such capacity are covered by the
privilege.
Note: For the statements to be privilege, the same should be
confidential. If the communications made by the client to his
attorney were also made to third persons, the intention of
secrecy does not appear. There can be no attorney-client
privilege where the information is given with the expectation
that it will be revealed to others.
Q: Does the privilege apply in suits between the attorney
and the client?
_____________________________________________
A: Yes, as in an action filed for the payment of attorney’s fees
or for damages against the negligence of the attorney, the
privilege is removed from the attorney’s lips.
Note: The communication would still be privileged were the
suit is by or against a third party.
In relation to the attorney, the privilege is owned by the
client. It is he who can invoke the privilege. The privilege is
personal and belongs to the client. If the latter waives the
privilege, no one else can invoke it.
Q: Will the death of the client extinguish the privilege?
A: The protection of the privilege will generally survive the
death of the client. Yet, where there is an attack on the
validity of the will, communications made to the attorney on
the drawing of the will, while confidential during the lifetime
of the client are not intended to require secrecy after his
death.
Canon 21 of the Code of Professional Responsibility
A lawyer shall preserve the confidence and secrets of his
client even after the attorney-client relation is terminated.
Accordingly, the relation between A and C is one of trust and
confidence of the highest degree. A lawyer becomes familiar
with all the facts connected with his client’s case. He learns
from his client the weak points of the action as well as the
strong ones.
Mercado v. Vitriolo (p.286)
It is the glory of the legal profession that its fidelity to its
client can be depend on, and that a man may safely go to a
lawyer and converse with him upon his rights or supposed
rights in any litigation with absolute assurance that the
lawyer’s tongue is tied from ever disclosing it.
Q: What are the factors essential to establish the existence
of the privilege?
A:
1. Where legal advice of any kind is sought,
2. From a professional legal adviser in his capacity as
such,
3. The communications relating to that purpose,
4. Made in confidence,
5. By the client,
6. Are at his instance permanently protected,
7. From disclosure by himself or by the legal advisor,
8. Except the protection be waived.
Q: Are matters disclosed by a prospective client to a lawyer
protected by the rule?
Facultad de Derecho Civil 57
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A: Yes, even if the prospective client does not thereafter
retain the lawyer or the latter declines the employment.
Q: Why is such covered by the rule?
A: To make the prospective client free to discuss whatever he
wishes with the lawyer without fear that what he tells the
lawyer will be divulged or used against him, and for the
lawyer to be equally free to obtain information from the
prospective client.
NOTE: A communication from a prospective client other than
on account of the prospective lawyer-client relation is not
privileged (Pfeider v. Palanca, 35 SCRA 75).
Q: What is a confidential communication?
A: It refers to information transmitter by voluntary act of
disclosure between attorney and client in confidence and by
means which, so far as the client is aware, discloses
information to no third person other than one reasonably
necessary for the transmission of the information or the
accomplishment of the purpose for which it was given.
Q: Is a compromise agreement prepared by a lawyer
pursuant to the instruction of his client and delivered to the
opposing party, an offer by client to his counsel for
settlement, or a document given by a client to his lawyer
not in his professional capacity covered by the
confidentiality rule?
A: No, the element of confidentiality not being present.
Physician-Patient Privilege (Rule 130)
Sec. 24.Disqualification by reason of privileged
communication. — The following persons cannot testify as
to matters learned in confidence in the following cases:
(c)A person authorized to practice medicine, surgery or
obstetrics cannot in a civil case, without the consent of the
patient, be examined as to any advice or treatment given by
him or any information which he may have acquired in
attending such patient in a professional capacity, which
information was necessary to enable him to act in capacity,
and which would blacken the reputation of the patient;
Q: Do this privilege apply to criminal case?
A: It applies to civil cases, whether the patient is a party or
not. The phraseology of the rule implies that the privilege
cannot be claimed in a criminal case presumably because the
interest of the public in criminal prosecution shall be deemed
more important than the secrecy of the communication.
Q: What is the purpose of the privilege?
_____________________________________________
A: To encourage the patient to freely disclose all the matters
which may aid in the diagnosis in the treatment of a disease
or an injury. For this purpose, it is necessary to shield the
patient from embarrassing details concerning his condition
(Falkinburg v. Prudential Insurance, Co.).
It is designed to promote the health and not the truth. The
patient is the person to be encouraged and he is the holder of
the privilege (Metropolitan Life and Insurance Co v.
Kauffman).
Q: What are the kinds of information which are prohibited
from disclosure?
A:
1. Any advice given to the client
2. Any treatment given to the client
3. Any information acquired in attending such patient
provided that the advice, treatment or information was
made or acquired in a professional capacity and was
necessary to enable him to act in that capacity
4. That the information sought to be disclosed would tend
to blacken the reputation of the patient.
Q: Does the rule require that the relationship be a result of a
contractual relationship?
A: No. It could be a result of a quasi-contractual relationship
as when the patient is seriously ill and the physician treats
him even if he is not in a condition to give his consent as in
the situation described in Art. 2167 of the NCC.
Art. 2167 of the NCC
Q: Are the results of the autopsy deemed covered by the
privilege?
A: No, autopsies are not intended for treatment.
Q: When can it be said that the physician is acting in a
professional capacity?
A: When he attends to the patient for either curative or
preventive treatment.
Q: Does the privilege survive the death of the patient?
A: Yes. Death does not permit the living to impair the
deceased’s name by disclosing communications held
confidential by law (Westover v. Aetna Life Ins. Co.).
Q: May the privilege be waived?
A: Yes, either expressly or impliedly. When the patient
answers questions on cross on matters which are supposed
to be privileged, the waiver exists. Also, when there is
Facultad de Derecho Civil 58
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
disclosure by the patient of the information, there is
necessarily a waiver.
Q: Can there be a waiver by operation of law?
A: Yes. Under Rule 28 of the Rules of Court, the court in
which the action is pending may in its discretion order a party
to submit to a physical or mental examination. This happens
when the mental or physical condition of a party is in dispute.
The party examined may request a report of the examination.
By doing so, he waives any privilege he may have.
Priest/Minister-Penitent Privilege (Rule 130)
Sec. 24.Disqualification by reason of privileged
communication. — The following persons cannot testify as
to matters learned in confidence in the following cases:
(d)A minister or priest cannot, without the consent of the
person making the confession, be examined as to any
confession made to or any advice given by him in his
professional character in the course of discipline enjoined by
the church to which the minister or priest belongs;
Q: Who holds the privilege?
A: The person making the confession holds the privilege and
the priest or minister hearing the confession in his
professional capacity is prohibited from making a disclosure
of the confession without the consent of the person
confessing.
Q: What is the scope of the privilege?
A: It also covers not only a confession made by the penitent
and any advice given by the minister or priest. It must have
been given pursuant to the course of the discipline of the
denomination or sect to which the minister or priest belongs.
Thus, the priest must be duly ordained or consecrated by his
sect.
Q: Are all kinds of confession covered?
A: No, the communication must be made pursuant to
confessions of sins. The rule states any advice given by him in
his professional character or in a spiritual capacity.
Q: When a penitent discusses business arrangements with
the priest, is this covered by the privilege?
a: No.
Privileged Communications to Public Officers (Rule 130)
Sec. 24.Disqualification by reason of privileged
communication. — The following persons cannot testify as
to matters learned in confidence in the following cases:
_____________________________________________
(e)A public officer cannot be examined during his term of
office or afterwards, as to communications made to him in
official confidence, when the court finds that the public
interest would suffer by the disclosure. (21a)
Q: When is the communication privileged?
A: When the court finds that the disclosure would adversely
affect the public interest. It is in the interest of the public that
is sought to be protected by the rule.
Hence, the disclosure or non-disclosure is not dependent on
the will of the officer but on the determination by a
competent court.
Q: When is the privileged applicable?
A: It can only be invoked not only during the term of the
office of the public officer but also after.
NOTE: National security and state secrets are confidential and
a court will most likely uphold the privilege.
Executive Privilege: Presidential communications privilege
Q: What is the origin of the executive privilege?
A: It originated in the case Senate of the Philippines v. Ermita
(488 SCRA 1).
Q: What is “executive privilege”?
A: It is the power of the government to withhold information
from the public, the courts, and the Congress.
NOTE: It was originally used in Almonte v. Vasquez (244 SCRA
286). The court acknowledged that there are certain types of
information which the government may withhold from the
public like military, diplomatic, and national security secrets.
Q: What is the basis of the privilege?
A: It is rules that the President and those who assist him must
be free to explore alternatives in the process of shaping
policies and making decisions and to do so in a way many
would be unwilling to express except privately.
Q: What are the matters involving state secrets?
A:
1. Military
2. Diplomatic
3. Other national security matters
Facultad de Derecho Civil 59
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
NOTE: The right to information does not also extend to
presidential conversations, correspondences, and discussions
in closed-door cabinet meetings.
Executive Order 464
1. Conversation and correspondences between the
President and the public official covered by the EO
2. Military, Diplomatic, Other national security matters
which in the interest of national security should not be
divulged
3. Information between inter-government agencies prior to
the confusion of treaties and executive agreements
4. Discussions in closed-door cabinet meetings
5. Matters affecting national security and public order
Q: Who are covered by the EO?
A:
1. Senior officials of executive departments who in the
judgment of the department heads are covered by the
Exec. privilege
2. General and flag officers of the AFP and such other
officers who in the judgment of the Chief of Staff are
covered by the Exec. Privilege
3. PNP officers with rank of chief superintendent or higher
and such other officers who, in the judgment of the Chief
of PNP are covered by the Exec. Privilege.
4. Senior national security officials who in the judgment of
the National Security Adviser are covered by the Exec.
Privilege
5. Such other officers as may be determined by the
President.
Q: What will be secured to disclose the information?
A: It requires that all public officials enumerated above shall
have to secure prior consent of the President prior to
appearing before the House of Congress to give effect to the
purpose of the EO.
Q: When the Congress exercises its powers of judicial inquiry,
are the department heads exempt by the mere fact that they
are department heads?
A: No, only one executive official may be exempted from the
power of inquiry of Congress—the President upon whom the
executive power is vested is beyond the reach of Congress
except through the power of impeachment.
Section 7, Art. III of the Bill of Rights
xxx
Q: What matters may be disclosed in relation to the right to
information on matters of public concern?
_____________________________________________
A: The standard to be employed in determining whether
there is a sufficient interest in favor of disclosure is the strong
“sufficient showing of need” which must be shown whether
that party is Congress or a private citizen.
When the government has claimed executive privilege, and it
has established that the information is indeed covered by the
same, then the party demanding it, if it is to overcome the
privilege, must show that the information is vital, not simply
for the satisfaction of its curiosity but for its ability to
effectively and reasonably participate in social, political and
economic decision-making.
See:
 Chavez v. PCGG, 384 SCRA 152
 Akbayan v. A quino, 2008
 Neri v. Senate Committee on Accountability of Public
Officers and Investigations, 2008
Q: What are the elements of presidential communications
privilege as mentioned under U.S. v. Nixon?
A:
1. The protected communications must relate to a
quintessential and non-delegable presidential power
2. The communication must be authored or solicited and
received by a close advisor of the President or the
President himself. The judicial test is that an advisor must
be in “operational proximity” with the President
3. The Presidential communications privilege remains a
qualified privilege that may be overcome by a showing of
adequate need, such that the information sought likely
contains important evidence and by the unavailability of
the information elsewhere by an appropriate
investigating authority.
Q: According to Chief Justice Puno, what are the 2 standards
which must be met to show specific need for the
information on the part of the branch of the government
seeking its disclosure?
A:
1. Evidentiary
2. Constitutional
Privileged communications under the Rules on electronic
evidence
Sec. 3 of the Rules on electronic evidence
SEC. 3. Privileged communication. – The confidential
character of a privileged communications is not solely on
the ground that it is in the form of an electronic document.
Parental and Filial Privilege (Rule 130)
Facultad de Derecho Civil 60
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A) _____________________________________________
Sec. 25.Parental and filial privilege. — No person may be (b)An attorney cannot, without the consent of his client, be
compelled to testify against his parents, other direct examined as to any communication made by the client to
ascendants, children or other direct descendants. (20a) him, or his advice given thereon in the course of, or with a
view to, professional employment, nor can an attorney's
Q: What are the 2 privileges embodied under the above secretary, stenographer, or clerk be examined, without the
provision? consent of the client and his employer, concerning any fact
the knowledge of which has been acquired in such capacity;
A: (c)A person authorized to practice medicine, surgery or
1. Parental privilege rule obstetrics cannot in a civil case, without the consent of the
2. Filial privilege rule patient, be examined as to any advice or treatment given by
him or any information which he may have acquired in
Q: What is parental privilege rule? attending such patient in a professional capacity, which
information was necessary to enable him to act in capacity,
A: A parent cannot be compelled to testify against his child or and which would blacken the reputation of the patient;
direct descendants. (d)A minister or priest cannot, without the consent of the
person making the confession, be examined as to any
Q: What is filial privilege? confession made to or any advice given by him in his
professional character in the course of discipline enjoined by
A: A child may not be compelled to testify against his parents the church to which the minister or priest belongs;
or direct ascendants. (e)A public officer cannot be examined during his term of
office or afterwards, as to communications made to him in
Q: May the person voluntarily testify against his parents or official confidence, when the court finds that the public
children? interest would suffer by the disclosure. (21a)

A: Yes. Q: What are the different types of disqualifications by

reason of privilege communication?
Q: What is the scope of this rule?
A:
A: It applies to both criminal and civil cases since the rule 1. Communication between husband and wife;
does not make any distinction. 2. Communication between attorney and client;
3. Communication between physician and patient;
Art. 215 of the Family Code 4. Communication between priest and patient; and
5. Public officers and public interest
Q: Under the F.C. no descendant shall be compelled to
testify against his parents and grandparents. What are the Others:
exceptions?
1. Editors may not be compelled to disclose the source of
A: published news;
1. When such testimony is indispensable in a crime 2. Voters may not be compelled to disclose for whom they
committed against said descendant voted;
2. In a crime committed by one parent against the other 3. Trade secrets;
(Art. 215, Family Code) 4. Information contained in tax census returns; and
5. Bank deposits.
Other privileged communications not found in the Rules of 6. Under Art. 233 of Labor Code, information and
Court (Rule 130) statements made at the conciliation proceedings shall be
treated as confidential;
Sec. 24.Disqualification by reason of privileged 7. According to the Anti-Money Laundering Law (Sec.6),
communication. — The following persons cannot testify as institutions covered by the law and its officers and
to matters learned in confidence in the following cases: employees who communicate a suspicious transaction to
the AMLC, are barred from disclosing the fact of such
(a)The husband or the wife, during or after the marriage, report to other persons.
cannot be examined without the consent of the other as to
any communication received in confidence by one from the
other during the marriage except in a civil case by one
against the other, or in a criminal case for a crime C. Examination of Witness
committed by one against the other or the latter's direct
descendants or ascendants; Open Court examination

Facultad de Derecho Civil 61

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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
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
questions calls for a different mode of answer, the answers
of the witness shall be given orally. (1a)
The Rule provides for the examination of the witness in open
court and unless the question calls for a different mode, the
answer of the witness shall be given orally. This allows the
court to observe the demeanor of the witness and also allows
the adverse party to cross-examine the witness.
Q: What are those testimonies which need not be given in
open court?
A:
1. Under the Rules of Summary Procedure, the affidavits of
the parties shall constitute the direct testimonies of the
witnesses who executed the same (Sec.15);
2. In civil cases, the parties are required to submit the
affidavits of their witnesses and other pieces of evidence
on the factual issues, together with their position papers,
setting forth the law and facts relied upon (Sec.9);
3. Depositions need not be taken in open court. They may
also be taken before a notary public or before any person
authorized to administer oaths;
4. In criminal case, either party may utilize the testimony of
a witness who is deceased, out of the country, or one
who is unavailable or unable to testify despite the
exercise of due diligence, even if the testimony was one
used in another case or proceeding, judicial or
administrative, provided the said proceeding involved
the same parties and subject matter and the adverse
party had the opportunity to cross-examine the witness
(Sec. 1(f), Rule 115).
Oath or affirmation
The witness must take either an oath or an affirmation but
the option to take an oath or affirmation is given to the
witness and not to the court.
Q: What is an oath?
A: It is an outward pledge made under an immediate sense of
responsibility to God or a solemn appeal to the Supreme
Being in attestation of the truth of some statement.
Q: What is an affirmation?
A: It is a substitute for an oath and is a solemn and formal
declaration that the witness will tell the truth.
Q: What if the witness refuses to take either?
_____________________________________________
A: The testimony in such case may be barred.
No special wording is necessary for an affirmation, provided
that the language used is designed to impress upon the
individual the duty to tell the truth. It may be an abuse of the
court’s discretion to require the use of the words “swear” or
“affirm” in the oath if the language would violate the witness’
religious beliefs where the witness could otherwise testify
truthfully.
Examination of witness and record of proceedings
The examination of witnesses presented in a trial or hearing
shall be done in open court, and under oath or affirmation.
Unless the witness is incapacitated to speak, or the questions
calls for a different mode of answer
The questions propounded to a witness and his answers
thereto, the statements made by the judge or any of the
parties, counsel, or witnesses with reference to the case, shall
be recorded by means of shorthand or stenotype or by other
means of recording found suitable by the court (Sec. 2, Rule
132).
In fact the entire proceedings of the trial or hearing must be
recorded.
A transcript of the record of the proceedings made by the
official stenographer, stenotypist or recorder and certified as
correct by him shall be deemed prima facie a correct
statement of such proceedings.
Rights and obligations of a witness (Rule 130)
Sec. 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 the right of a
witness:
(1)To be protected from irrelevant, improper, or insulting
questions, and from harsh or insulting demeanor;
(2)Not to be detained longer than the interests of justice
require;
(3)Not to be examined except only as to matters pertinent
to the issue;
(4)Not to give an answer which will tend to subject him to a
penalty for an offense unless otherwise provided by law; or
(5)Not to give an answer which will tend to degrade his
reputation, unless it to be the very fact at issue or to a fact
from which the fact in issue would be presumed. But a
witness must answer to the fact of his previous final
conviction for an offense. (3a, 19a)
Q: What is the foremost among the rights of the witness?
A: The right not to give an answer which will tend to degrade
his reputation, unless otherwise provided by law.
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Republic Act 6981
Witness Protection, Security, and Benefit Act
Q: What is the effect of the admission to the witness
protection program?
A: A witness admitted to the witness protection program
cannot refuse to testify or give evidence or produce books,
documents, records, or writings necessary for the
prosecution of the offense for which he has been admitted on
the ground of the right against self-incrimination (Sec. 4, RA
6981).
Q: Is there a violation of the right of the accused when
blood samples would be extracted from his veins to
determine whether he has HIV?
A: No (Tijing v. CA, 354 SCRA 17). The right against self-
incrimination applies only to testimonial evidence.
Q: What is the right of a witness against being degraded?
A: It refers to the right to refuse not to give an answer that
will degrade him.
Q: What are the exceptions of the rule?
A:
1. If the degrading answer is the very fact in issue
2. If the degrading answer refers to an act from which the
act in issue would be presumed (Sec. 3 [5], Rule 132).
NOTE: But if the witness is the accused, he may totally refuse
to take the stand. This is not the case of a mere witness
(Bagadiong v. Gonzales, 94 SCRA 906).
Examination of a Child Witness
Q: What is the rule regarding the Examination of a Child
Witness?
A: The examination of a child witness presented in a hearing
or any proceeding shall be done in open court. The answer of
the witness shall be given orally, unless the witness is
incapacitated to speak, or the question calls for a different
mode of answer.
The court may exclude the public and persons who do not
have a direct interest in the case, including the members of
the press.
Q: What shall be the order?
A: It shall be determined by the court on the record to testify
in open court would cause psychological harm to him, hinder
the ascertainment of truth, or result in his inability to
_____________________________________________
effectively communicate due to embarrassment, fear or
timidity.
Q: When a child does not understand the English or Filipino
language or is unable to communicate in said languages due
to his developmental level, fear, shyness, disability, or other
similar reason, what is the rule?
A: An interpreter whom the child can understand may be
appointed by the court, motu propio or ipon motion to
interpret for the child.
Q: What if the court determines that the child is unable to
understand or respond to questions asked?
A: The court may appoint a facilitator who may:
a. Child psychologist
b. Psychiatrist
c. Social worker
d. Guidance counselor
e. Teacher
f. Religious leader
g. Parent
h. Relative
NOTE: A child testifying at a judicial proceeding or making a
deposition shall have the right to be accompanied by two or
more persons of his own choosing to provide him emotional
support (Sec. 11, Rule on Examination of A Child).
An application for the child may be made for the testimony of
the child to be taken in a room outside the courtroom by the
prosecutor, counsel or guardian ad litem at least 5 days
before the trial.
The court may order that the testimony of the child be taken
by live-link television.
Q: When can a live-link television testimony be made?
A: If there is a likelihood that the child would suffer trauma
from testifying in the presence of the accused, his counsel or
the prosecutor as the case may be.
The testimony of the child shall be preserved on videotape,
digital disc, or other similar disc.
Q: Who are allowed to attend the examination?
A:
1. Members of the court staff for administrative use
2. The prosecuting attorney
3. Defense counsel
4. The guardian ad litem
5. Agents of investigating law enforcement agencies
6. Other persons as determined by the court
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Other pertinent provisions of Rule on Examination of A Child
Sec.31 [d] [g]
xxx
Kinds of examinations (Rule 132)
Sec. 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. (5a)
Sec. 6.Cross-examination; its purpose and extent. — Upon
the termination of the direct examination, the witness may
be cross-examined by the adverse party as to many matters
stated in the direct examination, or connected therewith,
with sufficient fullness and freedom to test his accuracy and
truthfulness and freedom from interest or bias, or the
reverse, and to elicit all important facts bearing upon the
issue. (8a)
Sec. 7.Re-direct examination; its purpose and extent. —
After the cross-examination of the witness has been
concluded, he may be re-examined by the party calling him,
to explain or supplement his answers given 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. (12)
Sec. 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. (13)
Q: What are the kinds of examinations?
A:
1. Direct examination- Direct examination is the
examination-in-chief of a witness by the party presenting
him on the facts relevant to the issue. It is actually the
procedure for obtaining information from one’s own
witness in an orderly fashion. The purpose is to illicit
facts about the client’s cause of action or defense
2. Cross-examination- Upon the termination of the direct
examination, the witness may be cross-examined by the
adverse party as to many matters stated in the direct
examination, or connected therewith, with sufficient
fullness and freedom to test his accuracy and
truthfulness and freedom from interest or bias, or the
reverse, and to elicit all important facts bearing upon the
issue.
Q: What is the scope of a cross-examination?
_____________________________________________
A: As a rule, the scope of the cross examination is not
confined to the matters stated by the witness in the direct
examination.
Q: What is the reason for this rule?
A: The rule allows questions designed to test the accuracy
and truthfulness of the witness, his freedom from interest
and bias, or the reverse and to illicit all important facts
bearing upon the issue.
Q: What is the exception to this rule?
A: Where the witness is an unwilling or a hostile witness as so
declared by the court, he may be cross-examined only as the
subject matter of his examination-in-chief (Sec. 12).
Q: What are the 2 basic purposes of cross-examination?
A:
1. To bring out facts favorable to counsel’s not established
by the direct testimony
2. To enable counsel to impeach or to impair the credibility
of the witness.
3. Re-direct examination- this is conducted after the cross
examination of the witness. The party who called the
witness on direct examination may re-examine the same
witness to explain or supplement his answers given
during the cross-examination. It is the examination of a
witness by counsel who conducted the direct
examination after the cross examination. Accordingly,
the counsel may elicit testimony to correct or repel any
wrong impression or inferences that may have been
created on the cross-examination. It may also be the
opportunity to rehabilitate a witness whose credibility
has been damaged. In its discretion, the court may even
allow questions on matters not touched in the cross-
examination.
4. Re-cross examination- examination conducted upon the
conclusion of the re-direct examination. Here the
adverse party may question the witness on matters
stated in the re-direct examination
Death or absence of witness
If the witness dies before his cross-examination is over, his
testimony on the direct may be stricken out only with respect
to testimony not covered by the cross-examination. The
absence of the witness is not enough to warrant the striking
out of his testimony for failure to appear for further cross-
examination where the witness has already been sufficiently
cross-examined and the matter on which cross-examination is
sought is not in controversy.
Facultad de Derecho Civil 64
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
If the witness was not cross-examined because of causes
attributable to the cross-examining party and the witness had
always made himself available for cross-examination, the
direct testimony of the witness shall remain in the record and
cannot be ordered stricken off the cross-examiner is deemed
to have waived the right to cross-examine.
Recalling of a witness
Sec. 9.Recalling witness. — After the examination of a
witness by both sides has been concluded, the witness
cannot be recalled without leave of the court. The court will
grant or withhold leave in its discretion, as the interests of
justice may require. (14)
In the exercise of such discretion, the court shall be guided by
the interests of justice.
Leading questions
Sec. 10.Leading and misleading questions. — A question
which suggests to the witness the answer which the
examining party desires is a leading question. It is not
allowed, except:
(a)On cross examination;
(b)On preliminary matters;
(c)When there is a difficulty is getting direct and intelligible
answers from a witness who is ignorant, or a child of tender
years, or is of feeble mind, or a deaf-mute;
(d)Of an unwilling or hostile witness; or
(e)Of a witness who is an adverse party or an officer,
director, or managing agent of a public or private
corporation or of a partnership or association which is an
adverse party.
A misleading question is one which assumes as true a fact
not yet testified to by the witness, or contrary to that which
he has previously stated. It is not allowed. (5a, 6a, and 8a)
Q: What is a leading question?
A: It is one that is framed in such a way that the question
indicates to the witness the answer desired by the party
asking the question.
It is not appropriate in direct and re-direct examinations
particularly when the witness is asked to testify about a
major element of the cause of action or defense. Yet, it is
allowed in cross and re-cross examinations. In fact, it is the
type of question that should be employed in a cross
examination.
Q: Explain why a “why” question should not be asked in
cross-examination?
_____________________________________________
A: It is because such kind of question allows a witness to
explain his or her position, emphasize key points of harmful
testimony and control the pace and scope of the
examination. It invites the witness to deliver an unwanted
“lecture” in the courtroom.
Q: When are leading questions allowed in direct
examination?
A:
1. On a preliminary matters;
2. When the witness is ignorant, or a child of tender years,
or is feeble-minded or a deaf-mute and there is difficulty
in getting direct and intelligible answers from such
witness;
3. When the witness is a hostile witness; or
4. When the witness is an adverse party, or when the
witness is an officer, director, managing agent of a
corporation, partnership or association which is an
adverse party.
Leading questions to a child witness
Under this rule, the court may allow leading questions in all
stages of examination of a child under the condition that the
same will further the interest of justice.
Thus, a leading question may be asked of a child a direct and
intelligible answer.
Misleading questions
Q: What is a misleading question?
A: One which assumes as true a fact not yet testified to by
witness, or contrary to that which he has previously stated. It
is not allowed in any type of examination.
D. Impeachment of a witness
Sec. 11.Impeachment of adverse party's witness. — A
witness may be impeached by the party against whom he
was called, by contradictory evidence, by evidence that his
general reputation for truth, honestly, or integrity is bad, or
by evidence that he has made at other times statements
inconsistent with his present, testimony, but not by
evidence of particular wrongful acts, 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. (15)
Sec. 12.Party may not impeach his own witness. — Except
with respect to witnesses referred to in paragraphs (d) and
(e) of Section 10, the party producing a witness is not
allowed to impeach his credibility.
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A witness may be considered as unwilling or hostile only if
so declared by the court upon adequate showing of his
adverse interest, unjustified reluctance to testify, or his
having misled the party into calling him to the witness
stand.
The unwilling or hostile witness so declared, or the witness
who is an adverse party, may be impeached by the party
presenting him in all respects as if he had been called by the
adverse party, except by evidence of his bad character. He
may also be impeached and cross-examined by the adverse
party, but such cross-examination must only be on the
subject matter of his examination-in-chief. (6a, 7a)
Q: What is an impeachment?
A: It is basically a technique employed usually as part of the
cross-examination to discredit a witness by attacking his
credibility. Destroying credibility is vital because it is linked
with a witness’ ability and willingness to tell the truth.
Q: What are the rules in impeaching a witness?
A:
1. The impeachment of a witness is to be done by the party
against whom the witness is called (Sec. 11, Rule 132)
2. Subject to certain exceptions, the party producing the
witness is barred from impeaching his own witness (Sec.
12)
3. By way of exception to the immediately preceding rule, if
the witness is unwilling or hostile, the party calling him
may be allowed by the court to impeach the witness. But
it is not for the party calling the witness to make a
determination that the witness is unwilling or hostile.
Whether or not a witness is hostile, is addressed to
judicial evaluation and the declaration shall be made only
if the court is satisfied that the witness possesses an
interest adverse to the party calling him or there is
adequate showing that the reluctance of the witness is
unjustified or that he misled the party into calling him as
a witness. A party may also be allowed to impeach his
own witness when said witness is an adverse party or is
an officer, director, or managing agent of a corporation,
partnership or association which is an adverse party.
4. It is improper for the party calling the witness to present
evidence of the good character of his own witness. The
same is allowed only if the character
Q: How to impeach a witness?
A:
1. By contradictory evidence
2. By evidence that his general reputation for truth,
honesty, and integrity is bad
3. By evidence that he has made at other times statements
inconsistent with his present testimony (Sec. 11, Rule
132).
_____________________________________________
Q: May a witness be impeached by evidence of particular
wrongful acts?
A: No, except evidence of his final conviction of an offense as
disclosed by his examination or by the record of the
judgment. Thus, the witness cannot be impeached by
enumerating in court specific wrongful acts he had
committed.
Q: May an unwilling or hostile witness be impeached by
evidence of his bad character?
A: No.
Impeachment by contradictory evidence
Fairness demands that the impeaching matter be raised in
the cross-examination of the witness sought to be impeached
by allowing him to admit or deny a matter to be used as the
basis for impeachment by contradictory evidence.
This mode of impeachment may also be used to contradict
conclusions made by expert witnesses during their
testimonies. Usually the adverse party may also call another
expert to testify to a contrary conclusion,
Impeachment by prior inconsistent statements (Rule 132)
Sec. 13. How witness impeached by evidence of inconsistent
statements. — Before a witness can be impeached by
evidence that he has made at other times statements
inconsistent with his present testimony, the statements
must be related to him, with the circumstances of the times
and places and the persons present, and he must be asked
whether he made such statements, and if so, allowed to
explain them. If the statements be in writing they must be
shown to the witness before any question is put to him
concerning them. (16)
Q: What are prior inconsistent statements?
A: They are statements made by a witness on an earlier
occasion which contradict the statements he makes during
the trial.
These statements are admissible to impeach the credibility of
the witness making them. This is the most commonly used
method because of its simplicity and the impact it makes
when properly used.
This requires a laying the proper foundation for the
impeachment.
Q: What is the other term for laying the foundation?
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
A: “Laying the predicate.” It is a preliminary requirement
before the impeachment process prospers.
Q: What are the elements of this foundation?
A:
1. the statements must be related to him, with the
circumstances of the times and places and the persons
present. If the statements are in writing they must be
shown to him;
2. he must be asked whether he made such statements,
and if so, allowed to explain them if he admits making
those statements.
Q: Is the mere presentation of the prior declarations of the
witness without the same having been read to him while
testifying in court sufficient for the desired impeachment of
his testimony if he was not given the ample opportunity to
explain the supposed discrepancy?
A: No.
Q: What is the purpose of the laying the predicate?
A: To allow the witness to admit or deny the prior statement
and afford him an opportunity to explain the same.
Impeachment by showing bad reputation
NOTE: Not every aspect of a person’s reputation may be the
subject of impeachment.
Q: What may be the aspect for the impeachment of bad
reputation due to the person’s bad reputation?
A:
1. For truth
2. For honesty
3. For integrity (Sec. 11, Rule 132)
Q: What is the presumption under the law?
A: A witness is presumed to be truthful and of good
character, the party presenting him does not have to prove
he is good because he is presumed to be one. It is only after
his character has been attacked, can he prove his being good.
Rule 132
Sec. 14. Evidence of good character of witness. — Evidence
of the good character of a witness is not admissible until
such character has been impeached. (17)
NOTE: The rule that bars evidence of the good character of
the witness who has not yet been impeached has reference
only to a mere witness. It does not refer to an accused in a
criminal case.
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In a criminal case, the accused may prove his good moral
character relevant to the offense charged even before his
character is attacked. However, the prosecution cannot
initiate proof of bad character of the accused. It can only do
so by way of rebuttal.
No impeachment by evidence of particular wrongful acts
Sec. 11, Rule 142
Just as a witness cannot testify on specific acts of misconduct
committed by the witness being impeached, the latter cannot
also be examined on particular wrongful acts done by him. To
do so would be a contravention of the tenor of Sec. 11 of Rule
132.
There is however, a particular wrongful act that is admissible
in evidence under the same section—his prior conviction of
an offense.
Q: The prior conviction of a witness is shown in what ways?
A:
1. By his examination, i.e., by cross-examining him
2. By presenting the record of his prior conviction
Examining another witness to elicit from his lips the prior
conviction of another witness is not the correct procedure
unless the witness is one who is competent like an official
custodian of records.
Impeachment of the adverse party as a witness
Q: Does the fact that the witness is the adverse party
necessarily mean that the calling party will not be bound by
the former’s testimony?
A: No. The fact remains that it was at his instance that his
adverse was put into the witness stand. Under the rule
permitting the impeachment of an adverse witness, although
the calling party does not vouch for the witness’ veracity, he
is nonetheless bound by his testimony if it is not contradicted
or remains unrebutted (Gaw v. Chua, 2008).
Exclusion and separation of witness (Rule 132)
Sec. 15. Exclusion and separation of witnesses. — On any
trial or hearing, the judge may exclude from the court any
witness not at the time under examination, so that he may
not hear the testimony of other witnesses.
The judge may also cause witnesses to be kept separate and
to be prevented from conversing with one another until all
shall have been examined. (18)
When the witness may refer to a memorandum
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Sec. 16. When witness may refer to memorandum. — A
witness may be allowed to refresh his memory respecting a
fact, by anything written or recorded by himself or under his
direction at the time when the fact occurred, or
immediately thereafter, or at any other time when the fact
was fresh in his memory and knew that the same was
correctly written or recorded; but in such case the writing or
record must be produced and may be inspected by the
adverse party, who may, if he chooses, cross examine the
witness upon it, and may read it in evidence. So, also, a
witness may testify from such writing or record, though he
retain no recollection of the particular facts, if he is able to
swear that the writing or record correctly stated the
transaction when made; but such evidence must be received
with caution. (10a)
E. Character Evidence
Inadmissibility of Character Evidence
Q: What is “character”?
A: It is the aggregate of the moral qualities which belong to
and distinguish an individual person; the general results of
one’s distinguishing attributes. It refers to what a man is and
depends on the attributes he possesses.
Q: Is it the same as reputation?
A: No. The reputation depends on the attributes which others
believe one to possess. Character signifies reality while
reputation signifies what is accepted to be reality at present.
CHARACTER REPUTATION
What the person really is What he is supposed to be in
accordance with what people
say he is, and is dependent
on how people perceive a
person to be
Q: Is character of the accused admissible?
A: No. The rule is that the character or reputation of a party is
regarded as legally irrelevant in determining a controversy, so
that evidence relating thereto is not admissible (People v. Lee,
2002).
Rule 130
Sec. 51. Character evidence not generally
admissible; exceptions: —
(a)In Criminal Cases:
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(1)The accused may prove his good moral character which is
pertinent to the moral trait involved in the offense charged.
(2)Unless in rebuttal, the prosecution may not prove his bad
moral character which is pertinent to the moral trait
involved in the offense charged.
(3)The good 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.
(b)In Civil Cases:
Evidence of the moral character of a party in civil case is
admissible only when pertinent to the issue of character
involved in the case.
(c)In the case provided for in Rule 132, Section 14, (46a, 47a)
Evidence of bad moral character of the accused
Q: Can the prosecution prove the bad character of the
accused?
A: In a criminal case, the prosecution cannot prove the bad
moral character of the accused in its evidence-in-chief. It can
only do so in rebuttal.
This means that the prosecution may not offer evidence of
the character of the accused unless the accused himself has
offered evidence of his good character.
Q: State the relevant provision.
A:
Sec. 51. Character evidence not generally
admissible; exceptions: —
(a)In Criminal Cases:
(2)Unless in rebuttal, the prosecution may not prove his bad
moral character which is pertinent to the moral trait
involved in the offense charged.
Q: What is the reason for this rule?
A: It prevents a pronouncement of guilt on account of his
being a bad man and instead anchors a conviction on the
basis of the sufficiency of evidence of his guilt. It also
prevents the inference that being a bad person the accused is
more likely to commit a crime. The rule likewise discourages
the presentation of the so-called propensity evidence—
evidence that one acts in accordance with one’s character.
Evidence of good moral character of the accused
Sec. 51. Character evidence not generally
admissible; exceptions: —
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(a)In Criminal Cases:
(1)The accused may prove his good moral character which is
pertinent to the moral trait involved in the offense charged.
The rule does not apply to the accused who is allowed to
offer evidence of his good character. Not all aspects of the
character of the accused may be proven.
Q: What may be proven?
A: Only those moral traits involved in the offense charged are
provable. In doing so, an accused may advance more than
one character trait as evidence so long as each trait is
germane to some issue in the case.
Q: May he prove his character by evidence of specific
instances of good conduct?
A: No.
NOTE: The accused may prove his moral character which is
pertinent to the moral trait involved in the offense charged.
Thus, this may strengthen the presumption of innocence, and
where good character and reputation are established, an
inference arises that the accused did not commit the crime
charged.
Q: What is the reason for the rule?
A: This is intended to avoid unfair prejudice to the accused
who might otherwise be convicted not because he is guilty
but because he is a person of bad character.
Evidence of character of the offended party
Sec. 51. Character evidence not generally
admissible; exceptions: —
(a)In Criminal Cases:
(3)The good 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.
NOTE: This provision pertains only to criminal cases, not to
administrative cases.
The character evidence must be limited to the traits and
characteristics involved in the type of an offense charged.
Character evidence in child abuse cases
(Sexual Abuse Shield Rule)
Q: What pieces of evidence are not admissible in any
criminal proceeding involving alleged sexual child abuse?
_____________________________________________
A: A.M. No. 004-07-SC, Sec. 30
1. Evidence offered to prove that the alleged victim
engaged in other sexual behavior
2. Evidence offered to prove the sexual predisposition of
the alleged victim
Q: What is the exception to this?
A: Evidence of specific instances of sexual behavior by the
alleged victim is admissible to prove that a person other than
the accused was the source of semen, injury, or other
physical evidence.
Character evidence in civil cases
Q: In civil cases, when is the evidence of the moral character
of a party admissible?
A: In civil cases evidence of the moral character of a party is
admissible only when the pertinent to the issue of character
involved in the case. Thus, evidence of a party’s
intemperance may be admitted when his intemperance to
the issues involved.
Evidence of good moral character of a witness
Evidence of good moral character of a witness is not
admissible until such character has been impeached.
F. Opinion Evidence
Rule 130
Sec. 48. General rule. — The opinion of witness is not
admissible, except as indicated in the following sections.
(42)
Sec. 49. Opinion of expert witness. — The opinion of a
witness on a matter requiring special knowledge, skill,
experience or training which he shown to posses, may be
received in evidence. (43a)
Sec. 50. Opinion of ordinary witnesses. — The opinion of a
witness for which proper basis is given, may be received in
evidence regarding —
(a)the identity of a person about whom he has adequate
knowledge;
(b)A handwriting with which he has sufficient familiarity;
and
(c)The mental sanity of a person with whom he is
sufficiently acquainted.
The witness may also testify on his impressions of the
emotion, behavior, condition or appearance of a person.
(44a)
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Admissibility of opinion evidence
Q: Is the opinion of the witness admissible?
A: As a rule, no.
Q: Why is such the rule?
A: This is because when a witness testifies, a witness does so
with respect to facts personally observed by him and it is for
the court to draw conclusions from the facts testified to.
Q: What is the exception to this rule?
A: When the opinion is that of an expert (Expert testimony).
Q: What is an expert testimony?
A: The opinion of a witness requiring special knowledge, skill,
experience, or training which he is shown to possess, it may
be received in evidence.
Q: Is the court bound by the opinion of an expert such as a
handwriting expert?
A: No. Expert opinion evidence is to be considered or
weighed by the court like any other testimony, in the light of
its own general knowledge and experience upon the subject
of inquiry. The probative force does not lie in a mere
statement of his theory or opinion but rather in the aid that
he can render to the courts in showing the facts which serve
as a basis for his criterion and the reasons upon which the
logic of his conclusion is founded (Dizon v. Tuazon, 2008).
Q: Is the resort to expert witnesses mandatory?
A: No.
NOTE: Experts opinions are not ordinarily conclusive. When
faced with conflicting expert opinions, courts give weight and
credence to that which is more complete, through and
scientific (Bacalso v. Padigos, 2008).
Opinion of an ordinary witness; when admissibe
Q: When is the opinion of an ordinary witness admissible?
A:
1. The identity of a person about whom the witness has
adequate knowledge
2. The handwriting of the person of which the witness has
adequate knowledge
3. The material sanity of a person with whom he is
sufficiently acquainted
4. The impressions of the witness on the emotion, behavior,
condition or appearance of a person (Sec. 50, Rule 130).
_____________________________________________
Q: If the police officer will testify that he notices Candida to
be hysterical and on the verge of collapse, would such
testimony be considered as opinion, hence, inadmissible?
A: The testimony would be admissible even if it would be an
opinion. The opinion of an ordinary witness is admissible
when such testimony refers to his impressions of the
emotion, behavior, condition or appearance of a person (Sec.
50, Rule 130).
Chapter V
HEARSAY EVIDENCE (Rule 130)
Sec. 36. Testimony generally confined to personal
knowledge; hearsay excluded. — A witness can testify only
to those facts which he knows of his personal knowledge;
that is, which are derived from his own perception, except
as otherwise provided in these rules. (30a)
Q: What is the basis of the reliability of a witness?
A: It is based on the personal knowledge of the witness. If a
witness testifies on the basis of what others have told him,
and not on facts which he knows of his own personal
knowledge, the testimony would be excluded as hearsay
evidence (Mallari v. People, 446 SCRA 74).
Q: When is an evidence called a hearsay?
A: When its probative force depends, in whole or in part, on
the competency and credibility of some persons other than
the witness by whom it is sought to produce it (Estrada v.
Desierto, 356 SCRA 108).
Q: What are the exceptions to the rule that hearsay
evidence is inadmissible also known as “admissible
hearsay”?
A:
1. The rule on statements that are parts of the res gestae
2. The rule on dying declarations
3. The rule on admissions against interest
Q: What is the basis for excluding hearsay evidence?
A: It rests mainly on the ground that there is no opportunity
to cross-examine the outside declarant.
Q: What will be violated in case such is admitted?
A: It will violate the constitutional right of the accused to
confront the witnesses testifying against him and cross-
examine them (People v. Mamalias, 328 SCRA 760).
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The hearsay rule therefore bars the admission of evidence
that has not been given under oath or solemn affirmation and
more important, has not been subjected to cross-
examination by opposing counsel.
Q: Can it be waived?
A: If not objected to, it is admissible. However, even if
admitted, it has no probative value (Mallari v. People, 446
SCRA 74).
When evidence is hearsay
NOTE: It is the purpose for which the evidence is offered
which would determine whether the same is hearsay or not.
Robles v. Lizarraga Hermanos, Estrada v. Desierto
A ban on hearsay does not include statements which are
relevant independently of whether they are true or not, like
statements of a person to show, among others, his state of
mind, mental condition, knowledge, belief, intention, ill-will,
and other emotions.
Q: What is the problem under Sec. 36 of Rule 130?
A: It incompletely describes the essence of the hearsay rule
because of its failure to embody the element of purpose. As
written, it appears more to be a definition of the first-hand
knowledge rule which although similar to hearsay rule, is
traditionally distinct from it.
Q: What is the clearer definition of the hearsay rule under
the Federal Rules of Evidence?
A: It is a statement, other than the one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
Q: What are the elements to constitute hearsay?
A:
1. An out-of-court statement, oral, written or non-verbal
conduct, made by one other than the one made by the
declarant or witness testifying at the trial
2. The out-of-door court statement must be offered to
prove the truth of the matter asserted in out-of-court
statement.
People v. De Marco
Hearsay is an out of court statement offered for the truth of
the matter asserted.
Q: What are the specific elements of Hearsay evidence?
A:
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1. There must be an out-of-court statement. It may be
oral or written. It may even be a conduct, as long as
that conduct is intended by the actor as an assertion.
The statement must not be made by the declarant in
the hearing or trial.
2. Statement made out of court is repeated and
offered by the witness in court to prove the truth of
the matters asserted by the statement.
Implied from an out-of-court statement is the fact that the
witness has no personal knowledge of the matter testified
too. It is someone outside the court and who at the same
time is not in the stand who has personal knowledge of the
fatcs. That someone outside the court cannot be questioned.
His perception cannot be tested. His capacity to remember
what he perceived cannot be accurately determined. Neither
can his capacity to communicate his remembered
perceptions because he is not in court and if he is not in court
cannot be crossed-examined.
When the second element is absent—the out-of-court
statement is not offered to prove the truth of the matter
asserted, it is said that the statement is offered for a non-
hearsay purpose. If it is offered, it is hearsay because it is
offered to prove a hearsay purpose. Where a statement is not
offered for the truth of the matter asserted but is offered for
an evidentiary purpose not dependent on the truth of the
matters asserted, the statement is non-hearsay,
Q: Why must a witness testify to matters of his personal
knowledge?
A: The witness’ credibility, accuracy of perception and
recollection, can be tested before the court through cross-
examination. Those of the out-of-court declarant cannot. The
latter’s statements are unreliable. His statements lack the
“indicacia” of trustworthiness.
Q: Distinguish between hearsay evidence and opinion
evidence.
A: Hearsay evidence is one that is not based on one’s
personal perception but based on the knowledge of others to
prove the truth of the matter asserted in an out-of-court
declaration.
An opinion evidence is based on the personal knowledge or
personal conclusions of the witness based on his skill.
Training or experience (Sec. 49, Rule 130).
Rule 130
Sec. 49.Opinion of expert witness. — The opinion of a
witness on a matter requiring special knowledge, skill,
experience or training which he shown to posses, may be
received in evidence. (43a)
Examples of non-hearsay evidence
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1. A statement that is offered to show its patent falsity, so
as to suggest the defendant’s conscious guilt;
2. Statements relating to the state of mind of the declarant
and the statements relating to the state of mind of the
listener. This constitute circumstantial evidence of an
assertion and where the making of the statement is the
significant fact because it either gives rise to the
inference about the declarant’s state of mind or indicates
its effect on the hearer. The truth of the statement is not
the issue here.
Out-of-court statements offered to prove mental state of
the declarant
As long as an out-of-court statement is offered for a non-
hearsay purpose (a purpose other than to prove the truth of
the matter asserted), the statement is admissible if it has
relevance to the matter in issue.
E.g. a statement which demonstrates by inference from the
tenor of the statement the state of mind of the speaker or
the declarant.
Out-of court statement offered to prove its effect on the
listener/hearer
An out-of-court statement may be offered not only to prove
the state of mind of the declarant. It may also be used to
show the state of mind of the hearer or listener. It described
in terms of the effect of the declarant’s statement on the
hearer and why the listener acted in a particular manner.
When the statement is offered for the truth of the matter
asserted but is offered to show the mental effect of the
statement on the hearer, the statement is not a hearsay.
Words offered to prove the effect on the hearer are
admissible when they are offered to show their effect on one
whose conduct is at issue. It is the bearer’s reaction to the
statement which is sought to be proved. It is his reaction to
the statement that is relevant, not the truth of the assertion
in the statement. Since the hearer is present in court, he can
be crossed-examined on whether or not he heard the
statement accurately, believed the statement to be true, and
whether or not he really acted in conformity with his belief.
Out-of-court statement offered to prove that the statement
was made
Where the statement is not offered for the truth of the
matter asserted, but merely to show what was said, the
statement is not hearsay.
Beyond the mere fact that the words were uttered, the
statement proves nothing as to its averments because the
out-of-court declaration’s relevance is independent of the
truth of its assertion.
_____________________________________________
Independent relevant statements
It is a rule that a declarant’s statement may have relevance to
an issue in a case from the mere fact that the words were
spoken or written, irrespective of the truth or falsity of the
assertion. This is known as independently relevant
statements. These statements are admissible for some
relevant reason independent of their truth or falsity. They are
relevant because the statement itself is either the very fact in
issue or a circumstantial evidence of a fact in issue. Some
authorities call such statements as the operative acts which
give rise to legal consequences.
They are not hearsay. Thus, a witness may be asked questions
concerning what the accused told him that other persons are
involved in the conspiracy if the purpose of the testimony is
not to prove that such persons were really involved but only
to prove what the accused had mentioned (People v. Cusi, Jr.,
14 SCRA 944).
Their relevance to the matter in issue is not dependent on
their truth or falsity. Its relevance lies in its tenor or the fact
that it was said.
E.g: Prior-out of court declarations of a witness inconsistent
with his testimony on the stand are admissible, not to prove
the truth of what was said. What is important is that the
statements were uttered.
Estrada v. Desierto
Q: What are the 2 classes of independently relevant
statements?
A:
1. Those statements which are the very facts in issue; and
2. Those statements which are circumstantial evidence of
fact in issue.
a. Statements of a person showing his state of mind—
his mental condition, knowledge, belief, intention,
ill-will and other conditions;
b. Statements of a person which shows his physical
condition, as illness and the like;
c. Statements of a person from which an inference may
be made as to the state of mind of another—
knowledge, belief, motive, good or bad faith, etc. of
the latter;
d. Statements which may identify the date, place and
person on question; and
e. Statements showing the lack of credibility of a
witness.
Q: Is a newspaper clipping of the report to the reporter who
was present during the press conference during the press
conference stating that X admitted the robbery admissible?
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Kenneth & King Hizon (3A)
A: Yes. It is a non-hearsay evidence offered for the purpose of
showing that the statement of X was made to a reporter
regardless of the truth or falsity of the statement. The
admissibility depends now on whether the fact that the
statement was made is relevant to the case. It would be
hearsay if offered to prove the truth that X was the robber.
Also, the statement made by X to a reporter may be admitted
as an admission under Sec. 26, Rule 130.
Rule 130
Sec. 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. (22)
Q: What are the exceptions to the hearsay rule?
A:
1. Dying declarations (Sec. 37, Rule 130);
2. Declaration against interest (Sec. 38, Rule 130);
3. Act or declaration against pedigree (Sec. 39, Rule
130);
4. Family reputation or tradition regarding pedigree
(Sec.40, Rule 130);
5. Common reputation (Sec.41, Rule 130);
6. Part of the res gestae (Sec.42, Rule 130);
7. Entries in the course of business (Sec.43, Rule 130);
8. Commercial lists and the like (Sec.45, Rule 130);
9. Learned treatises (Sec.46, Rule 130); and
10. Testimony or deposition at a former trial (Sec.47,
Rule 130)
Q: Is it correct to assert that the exceptions to the hearsay
rule are not hearsay?
A: No, they are hearsay evidence but they are deemed
admissible hearsay for certain reasons. Under appropriate
circumstances, a hearsay statement may possess
circumstantial guarantees of trustworthiness sufficient to
justify non-production of the declarant in person. Another
justification may be simply dictated by the necessity to admit
an out-of-court statement.
Q: Give examples of these exceptions.
A:
1. Declaration against interest
2. Act or declaration about pedigree
3. Entries in the course of business
4. Entries in official records
5. Commercial lists
6. Learned treatises
NOTE: Their admissibility is predicated on a compelling
necessity
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Dying declarations (Rule 130)
Sec. 37.Dying declaration. — The declaration of a dying
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. (31a)
Q: What is a dying declaration?
A: It is also known as the ante mortem statement. It is an
evidence of the highest order and is entitled to utmost
credence since no person aware of his impending death
would make a careless and false accusation.
Q: What may be the purpose of a dying declaration?
A: To provide the identity of the accused and the deceased,
to show the cause of death of the deceased and the
circumstances under which the assault was made upon him.
Q: Why are their admissible?
A: On the ground of necessity and trustworthiness. Necessity
because the declarant’s death renders it impossible his taking
the witness stand. Allowing it therefore, prevents a failure of
justice.
Trustworthiness, because the declaration is made in
extremity, when the party is at the point of death and when
every motive to falsehood is silenced and the mind is induced
by the most powerful considerations to speak the truth.
People v. Cerilla (539 SCRA 251)
The law considers the point of death as a situation so solemn
and awful as creating an obligation equal to that which is
imposed by an oath administered in court.
Q: In what proceedings a dying declaration admissible?
A: As originally conceived, they are admissible only in criminal
cases particularly in homicide cases. However, because of the
changes under the Rules of Evidence in 1989, the law allowed
the use of dying declarations even in non-criminal cases.
Today, the Rules of court no longer places any limitation on
the type of action in which a dying declaration may be
introduced. As long as the relevance is clear, a dying
declaration may now be used or introduced in a criminal or a
civil action and the relevance is satisfied where the subject of
inquiry is the death of the declarant himself.
Q: How should the objection be made?
A: It should be premised on any of the requisites for its
admissibility embodied under Sec. 37. Thus, a counsel who
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Kenneth & King Hizon (3A)
wants to exclude the same must have to deal with the
primary question of whether or not the evidentiary
foundations for the introduction of a dying declaration where
met.
Examples:
“Objection your honor, there is no foundation for the
declaration
“Objection, no basis”
“Objection, predicate not laid”
“Objection. No foundation. Declarant was not under
consciousness of an impending death”
Q: Is mere consciousness of death enough?
A: No, every one of us, at one time or another, has become
conscious of death. The kind of death of which the declarant
should be conscious is a death that is impending. The
declarant must be certain that death is near at hand, and
what is said must have spoken in the hush of its impending
presence.
People v. Brioso, 37 SCRA 336
To admit a dying declaration in evidence, it must be shown
that the declarant believed at the time the statement was
made, that he was in a dying condition and had given up the
hope of surviving.
NOTE: It is conceded that in determining the consciousness,
the attendant circumstances should be carefully weighed in
determining the consciousness of the impending death and
the sincerity of such belief.
Example: the fatal quality of the wound, the statements
made by the physician that his situation is hopeless, etc.
Q: If declatant’s statement was made under consciousness
of an impending death, will a subsequent belief in recovery
before his actual death bar the admissibility of his
statement?
A: No. The admissibility only depends upon whether at the
time of the declaration was made the deceased believed that
the injury received is fatal.
Q: Will the remark “I do not know…I do not know who
stabbed me” admissible?
A: Yes, there is nothing in the rules which prohibits the
admissibility of a dying declaration that is favorable to the
accused.
It would be unfair to restrict the use of dying declarations by
the prosecution. It is well-settled that it will be received on
behalf of the defendant (Mattox v. U.S.).
_____________________________________________
Elements of a dying declaration
NOTE: A dying declaration is admissible where the proponent
of the evidence shows compliance with the following
evidentiary foundations:
1. That the declaration is one made by a dying person
2. That the declaration was made by said dying person
under a consciousness of his imminent death
3. That the declaration refers to the cause and
circumstances surrounding the death of the declarant
and not of anyone else
4. That the declaration is offered in a case where the
declarant’s death is the subject of inquiry
5. The declarant is competent as a witness had he survived
6. The declarant should have died.
Q: Fallen by a bullet upon being fired at, Santos before
expiring told Romero, a passerby who came to his rescue, “I
was shot by Pablo, our neighbor.” May Romero’s testimony
on what was told to him by Santos be offered and amitted
in the separate civil action for damages brought by the heirs
against Pablo?
A: The statement is admissible. A dying declaration as in the
facts in the case at bar, may be offered in a civil case that the
cause and circumstances of the death of the declarant are the
subjects of the inquiry.
Q: What is the rationale behind the admissibility of the
dying declaration?
A: As held in the case People v. Lamasan, no person who
knows of careless or false accusation.
Q: Does the dying declaration need to be directed to a
particular person?
A: The dying declaration of the deceased need not be
directed to a particular person inquiring from the declarant as
to the circumstances of his death. Anyone who has
knowledge of what the declarant said, whether it be directed
to him or not, whether he had made inquiries from the
declarant or not, can testify thereto (People v. Valdez, 347
SCRA 594).
Assailing a dying declaration
Q: Is a dying declaration create a conclusive presumption of
credibility of the admitted declaration?
A: No. No evidentiary rule grants a dying declaratipm a
favored status in the hierarchy of evidence. It may be
attacked in the same manner as on would do to a testimony
in open court. It may be impeached through the normal
methods provided for under the rules.
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
1. For instance, it may be shown that the declarant had
previously made a statement inconsistent with his
supposedly dying declaration.
2. The objecting counsel may also demonstrate that the
declarant has no personal knowledge as to the identity of
the assailant.
3. It may also be shown that the declarant would not have
been a competent witness even if he had survived.
4. The counsel may show that deceased was in an irrational
state because he was under the influence of large dose
of sedatives administered in hospital
People v. Ador (432 SCRA 1)
The declaration must identify the assailant; otherwise, it loses
its significance.
Parts of the Res Gestae
Q: What is the etymological meaning of res gestae?
A: It means things done. It was originally used by the courts in
the other side of the world in the early 1800’s to create
hearsay exceptions whenever it was difficult to justify the
admission of a piece of hearsay evidence at a time when the
hearsay theory was far from being developed in the law of
evidence.
It was used as a justification to escape from the strict
application of the hearsay rule.
Res gestae is said to have reference to events speaking by
themselves through the instinctive words and acts of
participants when narrating the events. What is done or said
by the participants under the immediate spur of transaction
becomes part of the transaction.
Q: What is the rationale behind the concept?
A: It is the event that speaks for itself through the
spontaneous words or instinctive words or conduct of the
witness and not the witness for and about the event.
The use of the term res gestae has falledn out of favor and
acts formerly called parts of the res gestae are now
designated by specific names.
The judicial dislike for use of the term res gestae is clearly
expressed in an Amercian case when it considered the phrase
as “accountable for so much confusion that it had best be
denied any place whatever in legal terminology; if it means
anything but an unwillingness to think at all, what it covers
cannot be put in less intelligible terms (U.S. v. Matot).
Res gestae under the Rules of Court
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Sec. 42.Part of res gestae. — Statements made by a person
while a starting occurrence is taking place or immediately
prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part
of res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae. (36a)
Q: Under our jurisdiction, the res gestae is limited to what
matters?
A:
1. Spontaneous statements
2. Verbal acts
While the term remains in our rules, its application is
restrictive and no other statement, act or evidence may
qualify as part of the res gestae.
Talidanao v. Falcom Maritime, 2008
In spontaneous exclamation or statements, the res gestae is
the startling occurrence, whereas in verbal acts, the res
gestae are the statements accompanying the equivocal act.
A. Spontaneous statements
Q: What should be the characteristics for a spontaneous
statement to be admitted?
A:
1. That there is a startling event or occurrence taking place
2. That while the event is taking place or immediately prior
to or subsequent thereto, a statement has been made
3. The statements were made before the declarant had the
time to contrive or devise a falsehood
4. That the statement relates to the circumstances of the
startling event or occurrence or that the statements
must concern the occurrence in question and its
immediate attending circumstances.
Q: Where is the admissibility of a spontaneous statement
anchored on?
A: It is anchored on the theory that the statement was
uttered under the circumstances where the opportunity to
fabricate is absent. The statement is a reflex action rather
than a deliberate act, instinctive rather than deliberate. Thus,
the declaration was made under the conditions suggestive of
the truth.
The justification for the excited utterance exception is that a
spontaneous declaration of an individual who has recently
suffered an overpowering and shocking experience is likely to
be truthful.
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Q: Can the statement and the event be taken separately in
case of a spontaneous statement?
A: No. The statement alone without the event will not qualify
for admission, because it is the circumstances surrounding
the making of the statement which makes said statement
admissible.
The principle rests on the common experience that
utterances made under such circumstances are devoid of self-
interest and are in the same category as exclamations. The
probability of falsehood is too remote as to be negligible
(People v. Ricaplaza, 23 SCRA 374).
NOTE: A counsel who intends to object to the presentation of
a spontaneous statement as evidence, need to analyze the
evidence sough to be admitted by strictly weighing it
according to the standards set by Sec. 42 of Rule 130.
A declaration by a deceased person concerning the
circumstances of his health may not be considered a dying
declaration if it cannot be established that he uttered his
statement while conscious of his impending death but the
utterance of the victim made immediately after sustaining
injuries may be considered the ‘incident’ speaking through
the victim. While it may not qualify as a dying declaration, it
may nonetheless be admitted in evidence as part of the res
gestae.
Q: When is a declaration made spontaneously after a
startling occurrence deemed as part of the res gestae?
A:
1. When the principal act, the res gestae, is a starting
occurrence;
2. The statements were made the declarant had time to
contrive or devise; and
3. Statements concern the occurrence in question and its
immediately attending circumstances (People v. Peña,
376 SCRA 639).
Under the Rules, statements made by a person while a
startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances
thereof, may be given in evidence as part of the res gestae.
B. Verbal Acts
Q: What is a verbal act?
A: It is a statement accompanying an equivocal act material
to the issue, and giving it a legal significance. It presupposes a
conduct that is equivocal or ambiguous, one which in itself
does not signify anything when taken separately. It acquires
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meaning or legal significance only because of the statements
that accompany the act. It is the statement contemporaneous
with the act that identifies or indicates the character, purpose
or motive of the act.
Q: Under this rule, what are the requisites to be admissible?
A:
1. The principal act to be characterized must be
equivocal;
2. The equivocal act must be material to the issue;
3. The statement must accompany the equivocal act,
and
4. The statement gives a legal significance to the
equivocal act.
E.g. A witness testifying that he saw the P give money to the
D. Yet, this is an equivocal act. Is the money intended as a
bride? Is it a payment for debt? We do not know. The act of
receiving money in itself has no definite meaning or
significance. But the act of receiving money acquires legal
significance when the defendant said “thank you. I’ll pay you
after a year.” Now, the witness is testifying to that out-of-
court statement and it is offered to prove the truth of that
statement, that the money handed over is a loan to the
defendant. It is hearsay, but it is admissible hearsay as part of
the res gestae.
Q: Distinguish between spontaneous statement and a verbal
act.
A: A Spontaneous statement may be prior to, simultaneous
with, or subsequent to the startling event or occurrence. This
is not so in a verbal act. The statement in the latter must
“accompany” the equivocal act which evidently means that it
must be contemporaneous with the act.
Entries in the course if business (business records rule)
Rule 130
Sec. 43.Entries in the course of business. — Entries made at,
or near the time of transactions to which they refer, by a
person deceased, or unable to testify, who was in a position
to know the facts therein stated, may be received as prima
facie evidence, if such person made the entries in his
professional capacity or in the performance of duty and in
the ordinary or regular course of business or duty. (37a)
This is commonly encountered in breach of contract suits for
collection of a sum of money.
In this exception, the necessity for the admissibility of such
evidence arises from the absence of the person who has
personal knowledge of the facts. He is absent because he is
dead, outside of the jurisdiction of the court, or otherwise,
unable to testify.
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Q: What are the elements of this exception?
A:
1. Entries were made at, or near the time of the
transactions referred to;
2. Such entries were made in the regular course of
business;
3. The person making the entries was in a position to
know the facts stated in the entries;
4. The person making the entries did so in his
professional capacity, or in the performance of duty
and in the regular course of business; and
5. The person making the entry is now dead or unable
to testify.
Notes: Entries in the payroll, being entries in the ordinary
course of business enjoy the presumption of regularity.
The Rules on Electronic Evidence also expressly exempt
business records from the hearsay rule:
RULE 8
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE
SECTION 1. Inapplicability of the hearsay rule. – A
memorandum, report, record or data compilation of acts,
events, conditions, opinions, or diagnoses, made by
electronic, optical or other similar means at or near the time
of or from transmission or supply of information by a person
with knowledge thereof, and kept in the regular course or
conduct of a business activity, and such was the regular
practice ot make the memorandum, report, record, or data
compilation by electronic, optical or similar means, all of
which are shown by the testimony of the custodian or other
qualified witnesses, is excepted from the rule or hearsay
evidence.
Declarations against interest (Rule 130)
Sec. 38.Declaration against interest. — The declaration
made by a person deceased, or unable to testify, against the
interest of the declarant, if the fact is asserted in the
declaration was at the time it was made so far contrary to
declarant's own interest, that a reasonable man in his
position would not have made the declaration unless he
believed it to be true, may be received in evidence against
himself or his successors in interest and against third
persons. (32a)
People normally speak freely and with untruth when the
statement is in their interest, but are usually unwilling to
speak falsely against their interest.
This is founded on the necessity on account of the
impossibility of obtaining other evidence from the same
source, the declarant being unavailable in person to testify on
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the stand on account of death, absence from the jurisdiction
or serious illness.
It refers to a declaration made by a person who at the time of
his declaration is presented in evidence is already dead or is
unable to testify. It must be one which when made, was
known to the declarant himself to be against his interest,
pecuniary or moral, and which would not have been made
unless he believed it to be true. It is not enough that a
declaration against interest was made. It is necessary that the
declarant knew that the statement was against his interest
and which he would not have made had it not be true.
E.g. a statement by the debtor that he owes the creditor a
sum of money, or an acknowledgement by the principal that
he received the money previously entrusted to his agent, are
clear declarations against the interest of the person making
the statement.
Q: Will the same rule apply if the declarant is available as a
witness?
A: No. The declarant must be dead or is unable to testify.
Q: What kind of unavailability is sufficient reason to justify
the application of the exception?
A:
1. Being outside the territorial jurisdiction of the
country—unavailability if the exact whereabouts
abroad are unkown. If known, his deposition may be
taken and the exception will not apply.
2. Serious physical and mental impairments.
If the declaration is favorable to the interest of the declarant,
it is a mere self-serving statement and does not fall as an
exception to the hearsay rule.
Also, the declaration could be against one’s penal interest
because if one admits to a crime, he is also civilly liable, a
liability that is pecuniary (People v. Toledo, 51 Phil. 826).
Declaration about pedigree (Rule 130)
Sec. 39.Act or declaration about pedigree. — The act or
declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by
birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship
between the two persons is shown by evidence other than
such act or declaration. The word "pedigree" includes
relationship, family genealogy, birth, marriage, death, the
dates when and the places where these fast occurred, and
the names of the relatives. It embraces also facts of family
history intimately connected with pedigree. (33a)
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Q: To be admissible as an exception to the hearsay rule,
what must be shown?
A:
1. That the declarant is dead, or unable to testify;
2. That the declarant is related by birth or marriage to
the person whose pedigree is in issue;
3. The declaration was made before the controversy;
and
4. The relationship between the 2 persons is shown by
evidence other than such act or declaration.
Q: What does pedigree include?
A: It includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these facts
occurred, and the names of the relatives. It also embraces
facts of family history intimately connected with pedigree.
Family reputation or tradition regarding pedigree (Rule 130)
Sec. 40.Family reputation or tradition regarding pedigree. —
The reputation or tradition existing in a family previous to
the controversy, in respect to the pedigree of any one of its
members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by
consanguinity or affinity. Entries in family bibles or other
family books or charts, engravings on rings, family portraits
and the like, may be received as evidence of pedigree. (34a)
Q: What does this exception involve?
A:
1. A statement by a member of the family either by
consanguinity or affinity;
2. The statement is about the reputation or tradition of
the family in respect to the pedigree of any member
of the family; and
3. The reputation or tradition is one existing previous
to the controversy.
Common reputation (Rule 130)
Sec. 41.Common reputation. — Common reputation existing
previous to the controversy, respecting facts of public or
general interest more than thirty years old, or respecting
marriage or moral character, may be given in evidence.
Monuments and inscriptions in public places may be
received as evidence of common reputation. (35)
Q: When is reputation admissible in evidence?
A: It is when such reputation refers to a matter of public or
general interest, or respecting marriage or moral character
and said matter is more than 30 years old. It must exist prior
to the controversy. It may be established by monuments and
inscriptions.
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Common reputation is hearsay but is admissible because of
trustworthiness.
Q: Can common reputation establish pedigree?
A: No. This is established by reputation in the family and not
in the community.
Entries of official records (Rule 130)
Sec. 44.Entries in official records. — Entries in official
records 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. (38)
Q: When are entries admissible in evidence?
A: When they are made in official records by public officer in
the Philppines or in the performance of a legal duty. They are
admissible as prima facie evidence of the facts stated in the
entries.
Q: What are the requisites for admissibility under this rule?
A:
1. That the entry was made by a public officer, or by
another person specially enjoined by law to do so;
2. That it was made by the public officer in the
performance of his duties, or by such other person in
the performance of a duty specially enjoined by law;
and
3. That the public officer or other person had sufficient
knowledge of the facts by him stated, which must
have been acquired by him personally or through
official information.
Commercial lists and the like (Rule 130)
Sec. 45.Commercial lists and the like. — Evidence of
statements of matters of interest to persons engaged in an
occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the
truth of any relevant matter so stated if that compilation is
published for use by persons engaged in that occupation
and is generally used and relied upon by them therein. (39)
Q: What is the rule for such commercial lists and reports of
matters of interest be admissible?
A: They must be made by persons engaged in that occupation
and are generally used and relied upon by them and those
lists and reports are published.
Learned treatises (Rule 130)
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Sec. 46.Learned treatises. — A published treatise, periodical
or pamphlet on a subject of history, law, science, or art is
admissible as tending to prove the truth of a matter stated
therein if the court takes judicial notice, or a witness expert
in the subject testifies, that the writer of the statement in
the treatise, periodical or pamphlet is recognized in his
profession or calling as expert in the subject. (40a)
History books, published findings of scientists fall within this
exception if an expert on the subject testifies to the expertise
of the writer or if the court takes judicial notice of such fact.
Testimony or deposition at a former proceeding (Rule 130)
Sec. 47.Testimony or deposition at a former proceeding. —
The testimony or deposition of a witness deceased or
unable to testify, given in a former case or proceeding,
judicial or administrative, involving the same parties and
subject matter, may be given in evidence against the
adverse party who had the opportunity to cross-examine
him. (41a)
Q: What is the testimony contemplated under this
provision?
A: One given in a former case or proceeding, judicial or
administrative involving the same parties and subject matter.
The testimony was given by one who is now deceased or
unable to testify. Said testimony may be given in evidence
against the adverse party provides the latter had the
opportunity to cross-examine the witness who gave the
previous testimony (Samodio v. CA, 454 SCRA 463, 2005).
Q: What requisites should be present for Sec. 47 to apply?
A:
1. The witness is dead or unable to testify
2. His testimony or deposition was given in a former case
or proceeding, judicial or administrative, between the
same parties or those representing the same interests
3. The former case involved the same subject as that in the
present case, although in different causes of action
4. The issue testified to by the witness in the former trial is
the same issue involved in the present case
5. The adverse party has an opportunity to cross-examine
the witness in the former case (Manliclic v. Calaunan,
2007).
Exception to the hearsay rule under the rule on examination
of a child witness
Q: What requisites should be present for a statement made
by a child, in a child abuse case, not otherwise admissible
under the hearsay rule to be admitted in evidence in a
criminal or non-criminal proceeding?
A:
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1. The proponent shall make known to the adverse party
the intention to offer such statement and its particulars
to provide him a fair opportunity to object
2. If the child is available the court shall upon motion of the
adverse party, require the child to be present at the
presentation of the hearsay statement for cross-
examination by the adverse party
3. When the child is unavailable, the fact of such
circumstance must be proved by the proponent and the
hearsay testimony shall be admitted only if corroborated
by other admissible evidence (Sec. 28, Rule on
Examination of a Child Witness).
Q: What must be shown in order for the court to admit
videotaped and audiotaped interviews as evidence?
A:
1. The child witness is unable to testify
2. The interview was conducted by duly trained members of
a multi-disciplinary team or representatives of law
enforcement or child protective services
Q: Also, what are the foundations which must be
established?
A:
1. That the party offering the videotape or audiotape, must
disclose the identity of the individuals present, and at all
times, include their images and voices
2. That the statements of the child were not made in
response to a questioning calculated to lead the child to
make a particular statement
3. That the videotape or audiotape or device is shown to be
capable of recording the testimony
4. That the person operating the device was competent to
operate it
5. The videotape or audiotape is authentic and correct
4. That the recording has been duly preserved (Sec. 29, Rule
on Examination of a Child Witness).
Chapter VI
BURDEN OF PROOF, QUANTUM OF EVIDENCE AND
PRESUMPTIONS
A. Burden of Proof and Burden of evidence
Q: What is burden of proof?
A: Onus probandi refers to the obligation of a party to the
litigation to persuade the court that he is entitled to
relief.
Rule 131
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
SECTION 1.Burden of proof. — Burden of proof is the duty of
a party to present evidence on the facts in issue necessary
to establish his claim or defense by the amount of evidence
required by law. (1a, 2a)
For the defendant, an affirmative defense is one which is not
a denial of an essential ingredient in the plaintiff’s, but one
which, if established will be a good defense—i.e., an
avoidance of the claim (Supreme Transliner v. CA, 370 SCRA
41).
Q: To whom the burden of proof lies?
A: It lies with the party who alleges the existence of a fact or
thing necessary in the prosecution or defense of an action.
A mere allegation is not evidence, and he who has the burden
of proving his allegation with the requisite quantum of
evidence (Clado-Reyes v. Limpe, 2008).
NOTE: In civil cases, plaintiffs have the burden of proving the
material allegations of the complaint when those are denied
by the answer, and the defendants have the burden of
proving the material allegations in the answer when they
introduce new matters.
Q: Is it correct to say that the burden of proof solely rests on
the shoulders of the plaintiff?
A: No. The burden of proof, under clear terms of Sec. 1 of
Rule 131 is the duty of a party to present evidence not only to
establish a claim but a defense.
Northwest Airlines v. Chiong, 2008
Although initially, the burden of proof was with the passenger
to prove that there was a breach of contract of carriage, the
burden of evidence shifter to the airline when the former
adduced sufficient evidence to prove the fact alleged.
BPI v. Sps. Royeca, 2008
In civil cases, the party having the burden of proof must
establish his case by preponderance of evidence, or evidence
which is more convincing to the court as worthy of belief than
that which is offered in opposition thereto. Thus, the party,
whether the plaintiff or plaintiff, has the onus to prove his
assertion in order to obtain a favorable judgment.
Q: Who has the burden of proof in a case involving non-
payment of obligation?
A: The general rule is that the burden rests on the defendant
to prove payment, rather than on the plaintiff to prove non-
payment. The debtor has the burden of showing with legal
certainty that the obligation has been discharged by
payment.
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Q: Who has the burden of proof in case of eminent domain
case?
A: The local government that seeks to expropriate private
property has the burden to show the existence of compliance
with elements for the valid exercise of the right of eminent
domain (JIL Christian Foundation v. City of Pasig, 466 SCRA
235).
Q: Who has the burden of proof in termination cases?
A: It rests upon the employer to show that the dismissal is for
a valid and just cause.
Q: Who has the burden of proof in disbarment cases?
A: It rests on the complainant as held in Santos v. Dichoso (84
SCRA 622). Moreover, the case must be established by clear,
convincing and satisfactory proof. Indeed, considering the
serious consequences of the disbarment or suspension of a
member of the Bar, the SC has held that clearly
preponderance of evidence is necessary to justify the
imposition of the administrative penalty.
Q: Who has the burden of proof in accident insurance?
A: The insured’s beneficiary has the burden of proof in
demonstrating that the cause of death is due to the covered
peril (Vda. De Gabriel v. CA, 264 SCRA 137).
Q: How about in question as to constitutionality of a law?
A: The one who attacks the constitutionality of a law has the
onus probandi to show why the law is repugnant to the
constitution. The reason for the rule is the presumption that
the legislature intended to enact a valid, sensible, and just
law and one which operates no further than may be
necessary to effectuate the specific purpose of the law (Perez
v. People, 2008).
Test for determining where the burden of proof lies
Q: What is the test for determining where the burden of
proof lies?
A: It is to ask which party to an action or suit will fail if he
offers no evidence competent to show the facts averred as
the basis for the relief he seeks to obtain (Aznar Brothers
Realty v. Aying, 458 SCRA 496).
The burden of proof lies on the party who wants to establish
a legal right in his favor. If he claims a right granted by law, he
must prove his claim by competent evidence, relying on the
strength of his own evidence and not upon the weakness of
that of his opponent (China Banking Corp. v. Ta Fa Industries,
2008).
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Q: Where is the burden of proof fixed?
A: It is fixed by the pleadings. The claim of the plaintiff which
he must prove is spelled out in his complaint. The defendant’s
defenses which he must prove are to be found in his answer
to the complaint.
NOTE: The burden of proof may shift from one side to the
other as the exigencies of the trial require and shifts with
alternating frequency. As the trial progresses, one party may
have presented evidence that weigh heavily in his favor and
sufficient to convince the court of the justness of the claim. If
this occurs, the other party has the burden to come forward
in his own evidence to counteract whatever positive
impression which the evidence of the other party may have
been created in the mind of the court.
Q: Distinguish burden of proof and burden of evidence.
A:
BURDEN OF PROOF BURDEN OF EVIDENCE
The obligation of a party to The duty of the party to go
present evidence on the facts forward with the evidence to
in issue necessary to overthrow any prima facie
establish his claim or defense presumption against him
by the amount of evidence
required
Equipoise rule or equiponderance doctrine
Q: What is the basis of the Equipoise rule or equiponderance
doctrine?
A: It is based on Sec. 1 of Art. III of the Constitution which
provides that no one shall be deprived of life, liberty or
property without due process of law.
Q: What is the Equipoise rule or equiponderance doctrine?
A: It refers to a situation where the evidence of the parties
are evenly balanced or there is doubt on which side the
evidence preponderates. In this case the decision should be
against the party with the burden of proof.
Q: Apply the Equipoise rule or equiponderance doctrine in a
criminal case.
A: The Equipoise rule or equiponderance doctrine provides
that where the evidence is evenly balanced, the
constitutional presumption of innocence tilts the scales in
favor of the accused. Thus, where the inculpatory facts and
circumstances are capable of 2 or more explanations one of
which is consistent with the innocence of the accused and the
other consistent with his guilt, then the evidence does not
fulfill the test of moral certainty and is not sufficient to
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support a conviction. Where then evidence in a criminal case
is evenly balanced, the constitutional presumption tilts the
scales in favor of the accused.
When moral certainty as to culpability hangs in the balance,
acquittal on reasonable doubt inevitably becomes a matter of
right (Malillin v. People, G.R. No. 172953).
However, the rule does not apply where evidence presented
is not equally weighty, such as where the evidence of the
prosecution is overwhelming (Malana v. People, G.R. No.
173612).
Ubales v. People, G.R. No. 175692
It is better to acquit ten guilty individuals than to convict one
innocent person. Every circumstance against guilt and in favor
of innocent must be considered. Also, an accused should not
be convicted by reason of the weakness of his alibi. It is
fundamental that the prosecution must prove its case beyond
reasonable doubt and must not rely on the weakness of the
evidence of the defense.
Mayon Hotel and Restaurant v. Adana (458 SCRA 609)
In labor cases, if doubt exists between the evidence
presented by the ER and the EE, the scales of justice must be
tilted in favor of the latter. The policy is to extend the
doctrine to a greater number of employees who can avail of
the benefits under the law, which is inconsonance with the
avowed state’s policy to give maximum aid and protection to
labor (Nicario v. NLRC, 295 SCRA 619).
B. Quantum of Evidence
RULE 133
Weight and Sufficiency of Evidence
PREPONDERANCE OF EVIDENCE
SECTION 1.Preponderance of evidence, how determined. —
In civil cases, the party having burden of proof must
establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of
evidence on the issues involved lies, the court may consider
all the facts and circumstances of the case, the witnesses'
manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which there are
testifying, the nature of the facts to which they testify, the
probability or improbability of their testimony, their interest
or want of interest, and 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. (1a)
Facultad de Derecho Civil 81
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Q: What do you mean by preponderance of evidence?
A: It is a quantum of evidence applicable to civil cases. It
means “greater or superior weight of evidence.” It is more
convincing and more credible than the one offered by the
adverse party. It means evidence which is more convincing to
the court as worthy of the belief than that which is offered in
opposition thereto.
Q: What should the court consider to determine the
existence of preponderance of evidence?
A:
1. All the facts and circumstances of the case;
2. The witness’ manner of testifying, their intelligence, their
means and opportunity of knowing the facts to which
they are testifying, the nature of the facts to which they
testify, the probability or probability of their testimony;
3. The witness’ interest or want of interest, and also their
personal credibility so far as the same may ultimately
appear in the trial;
4. The number of witnesses, although does not mean that
preponderance is necessarily with the greater number.
Note: To persuade by preponderance of evidence is not
totake the evidence quantitatively but qualitatively.
PROOF BEYOND REASONABLE DOUBT
Sec. 2.Proof beyond reasonable doubt. — In a criminal case,
the accused is entitled to an acquittal, unless his guilt is
shown beyond reasonable doubt. Proof beyond reasonable
doubt does not mean such a degree of proof, excluding
possibility of error, produces absolute certainly. Moral
certainly only is required, or that degree of proof which
produces conviction in an unprejudiced mind. (2a)
It is the constitutional presumption of innocence that lays
such burden upon the prosecution. The prosecution must
prove its case beyond reasonable doubt and must not rely on
the weakness of the evidence of the defense.
Yet, when the accused invokes a justifying circumstance like
self-defense, the burden of proof rests upon the defense to
prove that the killing was justified.
Note: Proof beyond reasonable doubt does not mean such a
degree of proof that excludes all possibility of error. Only
moral certainty is required.
Reasonable doubt does not refer to any doubt or a mere
possible doubt because everything in human experience is
subject to possible doubt. It is that state of case which, after a
comparison of all the evidence , does not lead the judge to
have in his mind, a moral certainty of the truth of the charge.
_____________________________________________
Where there is reasonable doubt as to the guilt of the
accused, there must be an acquittal.
People v. Ganguso (250 SCRA 268)
Reasonable doubt standard is demanded by the due process
clause of the constitution which protects the accused from
conviction except upon proof beyond reasonable doubt of
every fact necessary to constitute the crime which he is
charged. Xxx Moral certainty is only required, or that degree
of proof which produces conviction in an unprejudiced mind.
The conscience must be satisfied that the accused is
responsible for the offense charged.
People v. Santiago, 420 SCRA 248 (p. 416)
SUBSTANTIAL EVIDENCE
Sec. 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 justify a
conclusion. (n)
Q: In what cases does this degree of evidence apply?
A: This applies to administrative cases-those filed before
administrative and quasi-judicial bodies and which requires
that in order to establish a fact, the evidence should
constitute that amount of relevant evidence which a
reasonable man might accept as adequate to support a
conclusion.
Tongko v. Manufacturers Life Insurance Company (G.R. No.
167622)
The settled rule that in administrative and quasi-judicial
proceedings, proof beyond reasonable doubt is not required
in determining the legality of the ER’s dismissal of an EE, and
not even a preponderance of evidence is necessary as
substantial evidence is considered sufficient. Substantial
evidence is more than a mere scintilla of evidence or relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion, even if other minds, equally reasonable,
might conceivably opine otherwise.
Duduaco v. Laquindanum, 466 SCRA 428
Administrative proceedings against judges are highly penal in
character and are to be governed by the rules applicable to
criminal cases. The quantum of evidence proof required to
support administrative charges against judges should thus be
more than substantial and requires proof beyond reasonable
doubt.
Facultad de Derecho Civil 82
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A) _____________________________________________
This was later on extended to administrative proceedings Olalia, 2007
against judicial employees like sheriffs.
This standard should be lower than proof beyond reasonable
Q: Distinguish preponderance of evidence and substantial doubt but higher than preponderance of evidence.
evidence.
Q: What is the quantum of evidence to prove allegations of
A: bias?

PREPONDERANCE OF
EVIDENCE
Applies to civil cases
It means greater or superior
weight of evidence. It is the
more evidence that is more
convincing and more credible
than the one offered by the
adverse party.
SUBSTANTIAL EVIDENCE
Applies to cases filed before
administrative or qua-judicial
bodies
Requires that in order to
establish a fact, the evidence
should constitute the
amount of relevant evidence
which a reasonable mind
might accept as adequate to
support a conclusion
A: Bare allegations of bias and partiality of the judge are mot
enough in the absence of clear and convincing evidence to
overcome the presumption that the judge will undertake his
noble role to dispense justice according to law and evidence
without fear or favor. Extrinsic evidence is required to
establish bias, bad faith, malice or corrupt purposes, in
addition to the palpable error that may be inferred from the
decisions of the decision or order itself (Rivera v. Mendoza,
A.M. No. RTJ-06-2013, 2006.
Q: What should be the quantum in case of annulment or
reconveyance of title?

Quantum of evidence in a petition for a writ of amparo
Q: What is the quantum of evidence in a petition for a writ
of amparo?
A: The parties shall establish their claims by substantial
evidence (Sec. 17, The Rule on the Writ of Amparo).
Effect of Failure to prove administrative liability on the
criminal case
Q: What is the effect of the failure to prove administrative
liability on the criminal case?
A: The findings and conclusions in one should not necessarily
be binding on the other. The evidence presented in the
administrative case may not necessarily be the same
evidence to be presented in the criminal case. The
prosecution is certainly not precluded from, adducing
additional evidence to discharge the burden of proof required
in the criminal case.
A: A party seeking it should establish not merely by
preponderance of evidence but by a clear and convincing that
the land sought to be reconveyed is his.
Q: What should be the quantum in case of allegation of
frame-up and extortion?
A: To substantiate the defense, including instigation, the
evidence must be clear and convincing.
NOTE: Denial is a weak form of evidence, particularly when it
is not substantiated by clear and convincing evidence.
A notarized instrument enjoys the presumption of due
execution. Only a clear and convincing evidence to the
contrary can overcome this presumption (Viaje v. Pamintel,
2006).
A person claiming moral damages must prove the existence
of bad faith by clear and convincing evidence for the law
presumes good faith.

Also, the dismissal of the criminal case is not per se bar to Evidentiary weight of electronic evidence
administrative sanctions (Paredes v. CA, 2007).
Q: What factors should be considered in assessing the
Clear and convincing evidence Evidentiary weight of electronic evidence?

Q: When is an evidence clear and convincing? A:

A: If it produces in the mind of the trier of fact a firm belief or
conviction as to allegations sought to be established. It is
intermediate, being more than preponderance, but not to the
extent of such certainty as is required beyond reasonable
doubt as in criminal cases.
1. The reliability of the manner in which it was generated,
stored or communicated
2. The reliability of the manner in which its originator was
identified
3. The familiarity of the information and communication
system

Government of Hong Kong Special Admin. Region v.

Facultad de Derecho Civil 83

UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A) _____________________________________________
4. The familiarity of the witness or the person who made a. Conclusive
the entry with the communication and information b. Disputable
system
5. The nature and quality of the information which went 2. Presumptions of fact or presumption hominis
into the communication and information system
6. Other factors which the court may consider (Sec.1, Rule Q: When is a presumption one of law?
7, Rules on Electronic Evidence).
A: It is an assumption which the law requires to be made
Q: How may matters relating to the admissibility and from a set of facts
evidentiary weigh of an electronic document be
established? Q: When is it one of fact?

A: By an affidavit stating facts of direct personal knowledge of
the affiant or based on authentic records. The affidavit must
affirmatively show the competence of the affiant to testify on
the matters contained.
A: When the assumption is made from the facts without any
direction or positive requirement of law.
Q: How would you categorize the presumption that an
accused is innocent until proven guilty?

A: Presumption of law. It is one embodied in the Constitution

C. PRESUMPTIONS
Q: What is a presumption?
A: It is an assumption of fact resulting from a rule of law
which requires such fact to be assumed from another fact or
group of facts founded or otherwise established in the action.
It is an inference of the existence or non-existence of a fact
which courts are permitted to draw from proof of other facts.
Q: Is presumption an evidence?
A: No. They merely affect the burden of offering evidence.
NOTE: A presumption is an inference which is mandatory
unless rebutted.
Q: Differentiate inference from a presumption.
Sec. 14 [2], Art. III of the Constitution
Q: What is the effect of a presumption?
A: A party in whose favor the legal presumption exists may
rely on and invoke such legal presumption to establish a fact
in issue. One need not introduce evidence to prove the fact
for a presumption is prima facie proof of the fact presumed.
Presumptions under the Rules of Court
Q: What are the presumptions under the Rules of Court?
A:
1. Conclusive or presumptions et de jure
2. Disputable or disputable presumptions or presumptions
juris tantum

A: Q: When is a presumptive conclusive?

INFERENCE
It is a factual conclusion that
can rationally be drawn from
other facts
One that is a result of the
reasoning process. It need
not have a legal effect
because it is mandated by
law.
PRESUMPTION
Mandated by law and
establishes a legal relation
between or among the facts
It is a conclusion which a rule
directs shall be made from
proof of certain facts
A: When the presumption becomes irrebuttable upon the
presentation of the evidence and any evidence tending to
rebut the presumption is not admissible. This is a rule of
substantive law.
It is an inference which the law makes so peremptory that it
will not allow them to be overturned by any contrary proof
however strong.

Kinds of presumption Q: When is a presumption disputable or rebuttable?

Q: What are the kinds of presumptions? A: It may be contradicted or overcome by other evidence.
They are satisfactory if uncontradicted, but may be
A: contradicted and overcome by other evidence.

1. Presumptions of law or presumption juris

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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
Q: What if the evidence that rebuts the presumption is
introduced?
A: The force of the presumption disappears.
Conclusive presumptions under the Rules of Court
(Rule 131)
Sec. 2. Conclusive presumptions. — The following are
instances of conclusive presumptions:
(a)Whenever a party has, by his own declaration, act, or
omission, intentionally and deliberately led to 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:
(b)The tenant is not permitted to deny the title of his
landlord at the time of commencement of the relation of
landlord and tenant between them. (3a)
Q: What is the basis of the Conclusive presumptions under
the Rules of Court?
A: They are based on the doctrine of estoppel. Under this
doctrine, the person making the representation cannot claim
benefit from the wrong he himself committed.
Q: What is the common term for the first conclusive
presumption?
A: Estoppel in pais or estoppel by conduct.
Estoppel
Q: What is estoppel?
A: It is an equitable principle rooted upon natural justice,
prevents persons from going back on their own acts and
representations, to the prejudice of others who have relied
on them.
The essential elements of Estoppel in pais may be considered
in relation to the party sought to be estopped, and in relation
to the party invoking the estoppel in his favor.
Q: What are the essential elements of estoppel?
A:
1. Conduct amounting to false representation or
concealment of material facts; or at least calculated to
convey the impression that the facts are otherwise than,
and inconsistent with, those which the party
subsequently attempts to assert;
2. Intent, or at least expectation, that this conduct shall be
acted upon by, or at least influence, of the real facts
3. Knowledge, actual or constructive of the real facts
_____________________________________________
Q: What are the elements in relation to the party claiming
the estoppel?
A:
1. Lack of knowledge and of the means of knowledge of the
truth as to the facts in question
2. Reliance, in good faith, upon the conduct or statements
of the party to be estopped
3. Action or inaction based thereon of such character as to
change the position or status of the party claiming the
estoppel, to his injury, detriment or prejudice (PNB v,
Palma, 2005).
NOTE: In estoppel, it is important that the person invoking it
has been influenced or relied on the representations or
conduct of the person sought to be stopped (Kalalo v. Luz).
Q: What is the basis of the doctrine?
A: It is based on the grounds of public policy, fair dealing,
good faith and justice, and its purpose is to forbid one to
speak against his own act, representations, or commitments,
to the injury of one to whom they were directed and who
reasonably relied thereon (Harold v. Aliba, 2007).
Disputable presumptions
Example: The presumption that official duty has been
regularly performed. This includes the presumptions of
regularity of service of summons.
Q: Does the presumption that official duty has been
regularly performed applicable to a petition for a writ of
amparo?
A: No. Under Rule 17 of the Rule on the Writ of Amparo, the
respondent public official cannot invoke the presumption
that official duty has been regularly performed to evade
responsibility or liability.
NOTE: The presumption of innocence of the accused prevails
over the presumption that law enforcement agents were in
the regular performance of their duty.
Examples of Disputable presumptions
1. That a person is innocent of a crime or a wrong
2. That an unlawful act was done with unlawful intent
3. That a person intends the ordinary consequences of his
voluntary act
4. That a person takes ordinary care of his business
5. The evidence willfully suppresses would be adverse if
produced;
6. That money paid by one another was due to the latter;
7. That a thing delivered by one to another belonged to the
latter;
Facultad de Derecho Civil 85
UNIVERSITY OF SANTO TOMAS
NOTES ON EVIDENCE
Kenneth & King Hizon (3A) _____________________________________________
8. That an obligation delivered up to the debtor has been The following shall be considered dead for all purposes including the
division of the estate among the heirs:
paid;
9. That prior rents or installments had been paid when a (1)A person on board a vessel lost during a sea voyage, or an
receipt for the latter ones is produced aircraft with is missing, who has not been heard of for four years
10. That a person acting in a public office was regularly since the loss of the vessel or aircraft;
(2)A member of the armed forces who has taken part in armed
appointed or elected to it;
hostilities, and has been missing for four years;
11. That official duty has been regularly performed; (3)A person who has been in danger of death under other
12. That a court, or judge, acting as such, whether in the circumstances and whose existence has not been known for four
Philippines or elsewhere, was acting in the lawful years;
(4)If a married person has been absent for four consecutive
exercise of jurisdiction;
years, the spouse present may contract a subsequent marriage if
13. That private transactions have been fair and regular; he or she has well-founded belief that the absent spouse is
14. That the ordinary course of business has been followed; already death. In case of disappearance, where there is a danger
15. That there was a sufficient consideration for a contract; ] of death the circumstances hereinabove provided, an absence of
only two years shall be sufficient for the purpose of contracting
16. That a negotiable instrument was given or indorsed for a
a subsequent marriage. However, in any case, before marrying
sufficient consideration. again, the spouse present must institute a summary proceedings
as provided in the Family Code and in the rules for declaration of
Disputable presumptions under Sec.3, Rule 131 presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse.
Sec. 3.Disputable presumptions. — The following presumptions are
(x)That acquiescence resulted from a belief that the thing acquiesced in
satisfactory if uncontradicted, but may be contradicted and overcome by
was conformable to the law or fact;
other evidence:
(y)That things have happened according to the ordinary course of nature
and ordinary nature habits of life;
(a)That a person is innocent of crime or wrong;
(z)That persons acting as copartners have entered into a contract of
(b)That an unlawful act was done with an unlawful intent;
copartneship;
(c)That a person intends the ordinary consequences of his voluntary act;
(d)That a person takes ordinary care of his concerns;
(aa)That a man and woman deporting themselves as husband
(e)That evidence willfully suppressed would be adverse if produced;
and wife have entered into a lawful contract of marriage;
(f)That money paid by one to another was due to the latter;
(bb)That property acquired by a man and a woman who are
(g)That a thing delivered by one to another belonged to the latter;
capacitated to marry each other and who live exclusively with
(h)That an obligation delivered up to the debtor has been paid;
each other as husband and wife without the benefit of marriage
(i)That prior rents or installments had been paid when a receipt for the
or under void marriage, has been obtained by their joint efforts,
later one is produced;
work or industry.
(j)That a person found in possession of a thing taken in the doing of a
(cc)That in cases of cohabitation by a man and a woman who are
recent wrongful act is the taker and the doer of the whole act; otherwise,
not capacitated to marry each other and who have acquire
that things which a person possess, or exercises acts of ownership over, are
properly through their actual joint contribution of money,
owned by him;
property or industry, such contributions and their corresponding
(k)That a person in possession of an order on himself for the payment of
shares including joint deposits of money and evidences of credit
the money, or the delivery of anything, has paid the money or delivered the
are equal.chanrobles virtua law library
thing accordingly;
(dd)That if the marriage is terminated and the mother
(l)That a person acting in a public office was regularly appointed or elected
contracted another marriage within three hundred days after
to it;
such termination of the former marriage, these rules shall
(m)That official duty has been regularly performed;
govern in the absence of proof to the contrary:
(n)That a court, or judge acting as such, whether in the Philippines or
(1)A child born before one hundred eighty days after the
elsewhere, was acting in the lawful exercise of jurisdiction;
solemnization of the subsequent marriage is considered to have
(o)That all the matters within an issue raised in a case were laid before the
been conceived during such marriage, even though it be born
court and passed upon by it; and in like manner that all matters within an
within the three hundred days after the termination of the
issue raised in a dispute submitted for arbitration were laid before the
former marriage.
arbitrators and passed upon by them;
(2)A child born after one hundred eighty days following the
(p)That private transactions have been fair and regular;
celebration of the subsequent marriage is considered to have
(q)That the ordinary course of business has been followed;
been conceived during such marriage, even though it be born
(r)That there was a sufficient consideration for a contract;
within the three hundred days after the termination of the
(s)That a negotiable instrument was given or indorsed for a sufficient
former marriage.
consideration;
(ee)That a thing once proved to exist continues as long as is
(t)That an endorsement of negotiable instrument was made before the
usual with things of the nature;
instrument was overdue and at the place where the instrument is dated;
(ff)That the law has been obeyed;
(u)That a writing is truly dated;
(gg)That a printed or published book, purporting to be printed or
(v)That a letter duly directed and mailed was received in the regular course
published by public authority, was so printed or published;
of the mail;
(hh)That a printed or published book, purporting contain reports
(w)That after an absence of seven years, it being unknown whether or not
of cases adjudged in tribunals of the country where the book is
the absentee still lives, he is considered dead for all purposes, except for
published, contains correct reports of such cases;
those of succession.
(ii)That a trustee or other person whose duty it was to convey
real property to a particular person has actually conveyed it to
The absentee shall not be considered dead for the purpose of opening his
him when such presumption is necessary to perfect the title of
succession till after an absence of ten years. If he disappeared after the age
such person or his successor in interest;
of seventy-five years, an absence of five years shall be sufficient in order
(jj)That except for purposes of succession, when two persons
that his succession may be opened.
perish in the same calamity, such as wreck, battle, or
conflagration, and it is not shown who died first, and there are

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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
no particular circumstances from which it can be inferred, the
survivorship is determined from the probabilities resulting from
the strength and the age of the sexes, according to the following
rules:
1.If both were under the age of fifteen years, the
older is deemed to have survived;
2.If both were above the age sixty, the younger is
deemed to have survived;
3.If one is under fifteen and the other above sixty, the
former is deemed to have survived;
4.If both be over fifteen and under sixty, and the sex
be different, the male is deemed to have survived, if
the sex be the same, the older;
5.If one be under fifteen or over sixty, and the other
between those ages, the latter is deemed to have
survived.
(kk)That if there is a doubt, as between two or more persons
who are called to succeed each other, as to which of them died
first, whoever alleges the death of one prior to the other, shall
prove the same; in the absence of proof, they shall be
considered to have died at the same time. (5a)
Presumption of innocence
The presumption of innocence is founded upon the first
principles of justice. Its purpose is to balance the scales in
what could otherwise be an uneven contest between the
lone individual pitted against the People and all the sources
at their command. The accused must be acquitted and set
free if his guilt cannot be proved beyond the whisper of a
doubt. Accordingly, conflicts in evidence must be resolved
upon the theory of innocence rather than upon a theory of
guilt when it is possible to do so (People v. Alvario, G.R. No.
120437).
People v. Mingming, G.R. No. 174195
This presumption is enjoyed by the accused until final
conviction and in this regard, the prosecution’s case must rise
and fall on its own merits and cannot draw its strength from
the weakness of the defense.
Q: When does the presumption that evidence when willfully
suppresses would be adverse if produced not apply?
A:
1. If the evidence is at the disposal of both parties;
2. If the suppression was not willful;
3. If it is merely corroborative or cumulative; and
4. If the suppression is an exercise of a privilege such as it is
covered by the privileged communication between
physician and patient.
Intent is a state of mind, and is hidden from the judicial eye.
Courts are left to evaluate the overt acts, and on their basis
to form a conclusion as to the actor’s intentions. Accordingly,
men intend the natural consequences of their voluntary acts
and that unlawful acts are done with unlawful intent.
A document acknowledged before a notary public enjoys the
presumption of regularity. It is a prima facie evidence of the
_____________________________________________
facts therein stated. Accordingly, titles in the name of a
person, having been registered under the Torrens system, are
generally a conclusive evidence of the ownership of the land
referred to therein and a strong presumption exists at the
titles are regularly issued and valid (Medina v. Greenfield
Development Corporation, 443 SCRA 150).
When a mail is sent by registered mail there exists a
presumption that is was received in the regular course of mail
(Sec.3 (v), Rule 131). To raise the presumption, the following
facts must be proven:
a. That the letter was properly addressed with postage
paid; and
b. That it was mailed.
Note: A direct denial of the receipt of the letter shifts the
burden upon the party favored by the presumption to prove
that the mailed letter was indeed received by the addressee.
Cawaling v. COMELEC, 368 SCRA 453
Every statute has in its favor the presumption of
constitutionality which is rooted in the doctrine of separation
of powers which enjoins upon the 3 coordinate departments
of the Government a becoming courtesy for each other’s
acts. The grounds for nullity must be beyond reasonable
doubt, for to doubt is to sustain.
Bare allegations, when unsubstantiated by evidence,
documentary or otherwise, are not equivalent proof under
our Rules of Court.
Article 164 of the Family Code is clear. A child who is
conceived or born during the marriage of his parents is
legitimate. As a guaranty in favor of the child and to protect
his legitimacy status, Art. 167 of the FC provides:
Article 167 of the Family Code
The child shall be considered legitimate although the
mother may have declared against its legitimacy or may
have been sentenced as an adultress.
The law requires that every reasonable presumption be made
in favor of legitimacy. It is grounded on the policy to protect
innocent offspring from the odium of illegitimacy.
Art. 213 of the Family Code (p. 442)
The so-called tender age presumption under Art. 213 of the
FC may be overcome only by compelling evidence of the
mother’s unfitness.
Q: Under what instances is the mother presumed to be
unsuitable to have custody of her children?
Facultad de Derecho Civil 87
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Kenneth & King Hizon (3A) _____________________________________________
A: 2. When the vendor remains in possession as lessee or
otherwise
1. Neglect 3. When upon or after the expiration of the right to
2. Abandonment repurchase another instrument extending the period of
3. Unemployment redemption or granting a new period is executed
4. Immorality 4. When the purchaser retains for himself a part of the
5. Habitual drunkineness purchase price
6. Drug addiction 5. When the vendor binds himself to pay the taxes on the
7. Maltreatment of a child thing sold
8. Insanity 6. In any other case where it may be fairly inferred that the
9. Affliction with a communicable disease. real intention of the parties is that the transaction shall
secure the payment of a debt or the performance of any
Whoever alleges fraud or mistake in a transaction must prove other obligation.
the same since it is presumed that a person ordinarily takes
care of his concerns and private transactions have been fair Q: For the above presumptions to apply, what are the
and regular. Yet, in Article 1332 of the NCC, if mistake or requisites?
fraud is alleged, and one of the parties is unable to read, or if
the contract is in a language not understandable to him, the A:
person enforcing the contract must show that the terms 1. That the parties entered into a contract denominated as
therof have been fully explained to the former (Cayabyab v. a sale
IAC, 232 SCRA 1). 2. That their intention was to secure an existing debt by
way of mortgage.
Article 1332 of the NCC
NOTE: The rule is that he who alleges that a contract does not
Article 1381 (3) of the NCC reflect the true intention of the parties thereto may prove the
same by documentary or parol evidence.
Article 1387 of the NCC
The petitioner is burdened to prove, by clear and convincing
Q: In what occasions will the law presume that there is evidence, the terms of the writings, not by simple
fraud of creditors? declarations of the parties, but by proof of facts and
circumstances, inconsistent with the rule of absolute
A: purchase, otherwise, the solemnity of deeds would always be
1. There is alienation of property by gratuitous title by the exposed to the slippery memory of witnesses.
debtor who has not reserved sufficient property to pay
his debts contracted before such alienation Q: What is the reason behind the above rule?
2. There is alienation of property by onerous title made by
the debtor against whom some judgment has been A: The presumption is that the contract is what it purports to
rendered in any instance of some writ of attachment has be; and to establish its character as a mortgage, the evidence
been issued. From the tenor of the law, the decision or must be clear, unequivocal and convincing which reasons
attachment need not refer to the property alienated and tending to show that the transaction was intended as a
need not have been obtained by the party seeking security for debt; and thus to be a mortgage must be
rescission sufficient to satisfy every reasonable mind without hesitation.

Q: Is there a presumption of the compensability of an If there is doubt as to the fact whether the transaction is in
ailment? the nature of a mortgage, the presumption, in order to avoid
a forfeiture is always in favor of a position to redeem, to
A: No. subserve abstract justice and avert injurious consequences.

Art. 1602, NCC Q: What is the presumption regarding judgment or final

order against a person rendered by tribunal of a foreign
Q: When will the law presume the existence of an equitable country with jurisdiction to render said judgment or final
mortgage? order?

A: A: It is a presumptive evidence of a right as between the

1. When the price of a sale with right to repurchase is parties and their successors in interest. If the judgment is
usually inadequate upon a specific thing, said judgment or final order is

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NOTES ON EVIDENCE
Kenneth & King Hizon (3A)
conclusive upon the title to the thing. The presumptions are
not, however, irrefutable.
Q: How may such judgment be repelled?
A:
1. Want of jurisdiction
2. Want of notice to the party
3. Collusion
4. Fraud
5. Clear mistake of law or fact
Q: What is the presumption among common carriers?
A: Common carriers are presumed to have been at fault or to
have acted negligently, unless they prove that they observed
extra-ordinary diligence as required by Art. 1733 of the NCC.
Q: What is the presumption in case a driver is found guilty of
reckless driving or violating traffic regulations at least twice
within the next preceding two months?
A: It is presumed that a driver was negligent.
Q: What is the doctrine of res ipsa loquitur?
A: The doctrine establishes a presumption of negligence
against the defendant and furnishes a substitute for a specific
proof of negligence.
Q: What are the four requisites for the doctrine of res ipsa
loquitur to apply?
A:
1. The accident is of a kind which ordinarily does not occur
in the absence of someone’s negligence
2. It is caused by an instrumentality within the exclusive
control of the defendant or defendants
3. The possibility of contributing conduct which would
make the plaintiff responsible is eliminated (Ramos v. CA,
321 SCRA 584).
Presumptions of Death
1. Absence of 7 years- if it is known whether or not the
absentee is still alive, he is considered dead for all
purposes but not for the purpose of succession
2. Absence of 10 years- the absentee shall be considered
dead for the purpose of opening his succession only after
an absence of 10 years. Before the lapse of 10 years, he
shall not be considered dead if the purpose is the
opening of his succession
3. Absence of 5 years- in relation to the immediately
preceding number, if the absentee disappeared after the
age of 75 years, his absence for 5 years is sufficient for
the purpose of opening his succession in which case, it is
not necessary to wait for the lapse of 10 years.
_____________________________________________
4. Absence of 4 years- A person is deemed considered dead
for all purposes even for the purpose of the division of
his estate among his heirs under certain extraordinary
circumstances after a relatively shorter time than any of
the above periods. In any of the following cases:
a. If the person on board a vessel lost during a sea
voyage, or an aircraft with is missing, who has not
been heard of for four years since the loss of the
vessel or aircraft;
b. If the person is a member of the armed forces who
has taken part in armed hostilities, and has been
missing for four years;
c. If the person who has been in danger of death under
other circumstances and whose existence has not
been known for four years;
d. If the person is married and has been absent for four
consecutive years, the spouse present may contract
a subsequent marriage if he or she has well-founded
belief that the absent spouse is already death. In
case of disappearance, where there is a danger of
death the circumstances hereinabove provided, an
absence of only two years shall be sufficient for the
purpose of contracting a subsequent marriage.
However, in any case, before marrying again, the
spouse present must institute a summary
proceedings as provided in the Family Code and in
the rules for declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse.
Absence of presumption of legitimacy or illegitimacy
(Rule 131)
Sec. 4.No presumption of legitimacy or illegitimacy. — There
is no presumption of legitimacy of a child born after three
hundred days following the dissolution of the marriage or
the separation of the spouses. Whoever alleges the
legitimacy or illegitimacy of such child must prove his
allegation. (6)
Chapter VII
OFFER OF EVIDENCE AND TRIAL OBJECTIONS (Rule 132)
Sec. 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. (35)
Sec. 35.When to make offer. — As regards the testimony of
a witness, the offer must be made at the time the witness is
called to testify.
Documentary and object evidence shall be offered after the
presentation of a party’s testimonial evidence. Such offer
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Kenneth & King Hizon (3A)
shall be done orally unless allowed by the court to be done
in writing. (n)
Sec. 36.Objection. — Objection to evidence offered orally
must be made immediately after the offer is made.
Objection to a question propounded in the course of the
oral examination of a witness shall be made as soon as the
grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within
three (3) days after notice of the unless a different period is
allowed by the court.
In any case, the grounds for the objections must be
specified. (36a)
Sec. 37.When repetition of objection unnecessary. — When
it becomes reasonably apparent in the course of the
examination of a witness that the question being
propounded are of the same class as those to which
objection has been made, whether such objection was
sustained or overruled, it shall not be necessary to repeat
the objection, it being sufficient for the adverse party to
record his continuing objection to such class of questions.
(37a)
Sec. 38.Ruling. — 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 will give the party
against whom it is made an opportunity to meet the
situation presented by the ruling.
The reason for sustaining or overruling an objection need
not be stated. However, if the objection is based on two or
more grounds, a ruling sustaining the objection on one or
some of them must specify the ground or grounds relied
upon. (38a)
Sec. 39.Striking out answer. — Should a witness answer the
question before the adverse party had the opportunity to
voice fully its objection to the same, and such objection is
found to be meritorious, the court shall sustain the
objection and order the answer given to be stricken off the
record.
On proper motion, the court may also order the striking out
of answers which are incompetent, irrelevant, or otherwise
improper. (n)
Sec. 40.Tender of excluded evidence. — If documents or
things offered in evidence are excluded by the court, the
offeror may have the same attached to or made part of the
record. If the evidence excluded is oral, the offeror may
state for the record the name and other personal
_____________________________________________
circumstances of the witness and the substance of the
proposed testimony. (n)
Importance of Offer of Evidence
Q: What is the importance of a formal offer of evidence?
A: It is important because without such offer, the court
cannot determine whether the evidence is admissible or not.
Yet, where the absence of an offer of a testimonial evidence
was not objected to as when the witness was cross-examined
by the adverse party despite failure of counsel to make an
offer of the testimony of the witness, the court must consider
the testimony.
A document, or any article for that matter, is not evidence
when it is simply marked for identification; it must be
formally offered, and the opposing counsel given an
opportunity to prove or identify it. A formal offer is necessary
since judges are required to base their findings of fact and
judgment only and strictly upon the evidence offered by the
parties at the trial.
Q: What is the distinction between the identification of
documentary evidence and its formal offer as an exhibit?
A: The former is done in the course if the trial and is
accompanied by the marking of the evidence as an exhibit,
while the second is done only when the party rests its case/
Q: When is a formal offer of evidence not required?
A:
1. In a summary proceeding because it is a proceeding
where there is no fill-blown trial;
2. Documents judicially admitted or taken judicial notice of;
3. Documents, affidavits and depositions used in rendering
a summary judgment;
4. Documents or affidavits used in deciding quasi-judicial or
administrative cases;
5. Lost objects previously marked, identified, described in
the record, and testified by witness who had been
subject of cross-examination in respect to said objects.
People v. Matte
Q: What are the requirements for an evidence not formally
offered is allowable?
A:
1. The evidence must have been duly identified by
testimony duly recorded; and
2. The same must have been incorporated in the records of
the case.
People v. Libnao, G.R No. 136860
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While under the Rules of Court, the court shall consider no
evidence which has not been formally offered, this is true
only when the failure to offer an evidence has been objected
to. The failure to object to the omission of the prosecutor and
the cross-examination of the witness by the adverse party,
taken together, constitute a waiver of the defect.
Q: When is an evidence considered offered?
A: As to when the offer f evidence is made depends upon the
nature of the evidence:
a. As regards the testimony of witness, the offer is made at
the time the witness is called to testify (Sec. 35);
b. As regards documentary and object evidence, they are
offered after the presentation of a party’s testimonial
evidence. The offer is orally made unless allowed by the
court to be in writing (Sec. 35);
Hence, the presentation of a documentary or object evidence
for marking and identification during the course of the trial is
not the offer contemplated in the rules. Failure to object to
the evidence at this time should not be construed as a waiver
of the objection to the evidence.
Macasiray v. People, 291 SCRA 154
Q: When is an objection to a documentary evidence needed
to be made?
A: Objections to a documentary evidence shall be made after
it is offered and the offer of such evidence shall be made
after the presentation of a party’s testimonial evidence.
A party is not deemed to have waived objection to
admissibility of documents by his failure to object to the
same when they were marked, identified and then
introduced during the trial, because objection to
documentary evidence must be made at the time it is
formally offered and not earlier.
People v. Diaz
The mere fact that a document is marked as an exhibit does
not mean that it has thereby already been offered as part of
the evidence of a party. Yet, where the accused fails to object
to the admissibility of certain items during their formal offer,
he is deemed to have waived his right against their
admissibility.
Q: How is an offer of evidence made?
A: When a party makes a formal offer of his evidence, he
must state the nature or substance of the evidence, and the
specific purpose for which the evidence is offered.
_____________________________________________
The court shall consider the evidence solely for the purpose
for which it is offered, not for any other purpose.
Purpose of objections
Q: What is the purpose of objections?
A:
1. Objections are made to keep out inadmissible evidence
that would cause harm to a client’s cause. The rules of
evidence are not self-operating and hence, must be
invoked by way of an objection;
2. Objections are interposed to protect the record—to
present the issue of inadmissibility of the offered
evidence in a way that if the trial court rules erroneously,
the error can be relied upon as a ground for a future
appeal;
3. Objections may be made to protect a witness from being
embarrassed on the stand or from being harassed by
the adverse counsel;
4. Objections are interjected to expose the adversary’s
unfair tactics like his consistently asking obviously leading
questions;
5. Objections may be made to give the trial court an
opportunity to correct its own errors and at the same
time warn the court that a ruling adverse to the objector
may supply a reason to invoke a higher court’s appellate
jurisdiction; and
6. Objections are made to avoid a waiver of the
inadmissibility of an otherwise inadmissible evidence.
General and Specific Objections
An objection must point out the specific ground of the
objection, and if it does not do so, no error is committed in
overruling it.
NOTE: The objection should be specific. Hence, an objector
must be explicit as to the legal ground he invokes. He cannot
simply manifest that he is interposing an objection. He has to
precisely state the exclusionary rule that would justify his
opposition to the proffered evidence.
Q: Give examples of general objections.
A:
1. Objection, the evidence is incompetent
2. Objection! Inadmissible!
3. Objection: Incompetent, irrelevant, and immaterial
4. Objection: Improper.
Q: Why are they considered general?
A: They do not clearly indicate to the judge the ground upon
which the objections are predicated. They assign no grounds
to the objection.
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NOTE: An objection that evidence is incompetent, irrelevant, questions
or immaterial is ordinarily regarded in most jurisdictions, in
the absence of any statutory provision to the contrary, as not Objections must be timely
sufficiently definite to present any question for review.
Q: When should objections be made?
Q: How should a specific objection be made?
A: It should be timely. The objection must be made at the
A: The Rule does not provide for such. Practical reasons earliest opportunity.
however tell us that the objection must be specific enough to
adequately inform the court the rule of evidence or Q: What is the earliest opportunity?
substantive law that authorizes the exclusion of the evidence.
A: The earliest opportunity depends on the manner the
Q: Give examples of specific objections? evidence is offered.
a. If the evidence is offered orally, objection to the
A: evidence must be made immediately after the offer is
1. Question calls for a hearsay answer made
2. Witness cannot testify on a privileged communication b. An objection to a question propounded in the course of
3. The question calls for a conclusion the oral examination of the witness shall be made as
4. The question is beyond the scope of the direct soon as the grounds therefor shall become reasonably
examination present
5. Impeachment is improper c. An offer of evidence in writing shall be objected to within
3 days after notice of the offer unless a different period
Q: Is the rule that general objection can never be allowed is allowed by the court.
absolute?
NOTE: It is presumed that an objection to the evidence
A: No. The rule on specificity is dictated largely by the need to before it is offered is premature and no adverse inference
allow the court to intelligently rule on the objection and give may be had against a party who does not object to the
the other party an opportunity to withdraw the evidence or evidence before it is offered.
to correct an error in his presentation.
Motion to strike
There is no compelling or an absolute need to specify the
ground if the ground is for exclusion should have been Q: What will the counsel do in case the witness is so quick to
obvious to the judge or to counsel. There are cases where the answer even before the question is over?
incompetency of the evidence is so palpable that a mere
general objection is deemed sufficient, and where the portion A: The counsel must nevertheless object, state his reason,
of evidence objected to is clearly pointed out, and its illegality and move to strike out the answer. This is a technique which
is apparent on its face, then the objection must be allowed. the lawyer avails when he does not have the opportunity to
object before the witness responds.
Formal and substantive objections
Sec. 39, Rule 133
Q: Distinguish Formal and substantive objections.
Sec. 39. Striking out answer. — Should a witness answer the
A: question before the adverse party had the opportunity to
voice fully its objection to the same, and such objection is
FORMAL SUBSTANTIVE found to be meritorious, the court shall sustain the
One directed against the Objections made and objection and order the answer given to be stricken off the
alleged defect in the directed against the very record.
formulation of the question. nature of the evidence, i.e., it
is inadmissible either On proper motion, the court may also order the striking out
because it is irrelevant or of answers which are incompetent, irrelevant, or otherwise
incompetent or both improper. (n)
Examples: Examples:
Ambiguous questions, Parol; not the best evidence, Q: When should you use a motion to strike?
leading and misleading hearsay privileged
questions, repetitious communication not A:
questions, multiple authenticated, opinion, res 1. When the answer is premature
questions, argumentative inter alios acta

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2. When the answer of the witness is irrelevant,
incompetent or otherwise improper
3. When the answer is unresponsive
4. When the witness becomes unavailable for cross-
examination through no fault of the cross-examining
party
5. When the testimony was allowed conditionally and the
condition for its admissibility was not fulfilled.
If the answer to a question is damaging, then relief may be
obtained by a motion to strike.
Waiver of objections; Belated Objections
Q: What is the nature of a waiver?
A: Waiver implies the existence of a right a claim, a privilege,
or something one is entitled to. It is by its nature a unilateral
act.
Q: Does it have to be a positive act?
A: No. A waiver may result from failure to perform an act.
When the claim, or privilege is abandoned, repudiated,
renounced, or not asserted, there is a waiver.
Applied to objections, there is a waiver there is failure to
point out some defect, irregularity, or wrong in the admission
or exclusion of evidence. Such failure may take various forms
and may either be expressed or implied.
Q: What if no objection is made to an otherwise
inadmissible evidence?
A: The objection is deemed to have been waived by the party
upon whom making the objection is incumbent.
Note that the right to object is merely a privilege which the
party may waive. Thus, once admitted, the testimony is in the
case for what it is worth, and the judge has no power to
disregard it for what it is worth, and the judge has no power
to disregard it for the sole reason that it could have been
excluded if objected to, nor can he strike it out on his own
motion (Marella v. Reyes. 12 Phil 1).
Extent of waiver for failure to object
Q: When an objection to evidence is deemed waived, what
exactly does the non-objecting party waive?
A: He waives objections to its admissibility. The evidence
becomes admissible but the waiver involves no admission
that the evidence possesses the weight attributed to it by the
offering party.
Q: Is waiver an admission that the evidence is credible?
_____________________________________________
A: No. It does not also mean that the non-objecting party
waives his right to present controverting evidence. It only
waives objection of 2 matters:
a. Relevance
b. Competence of the evidence
Rule 128
Sec. 3. Admissibility of evidence- Evidence is admissible
when it is relevant to the issue and is not excluded by the
law or these rules
People v. Valero, 112 SCRA 661
Admissibility of evidence should not be equated with weight
of evidence.
Q: Does the rule of waiver by failure to object applicable to
the admission of documentary evidence?
A: Yes. Failure to object waives an objection that there was
an irregularity in the taking of an affidavit or deposition, that
the document is not what it purports to be on its face, or that
it is not relevant.
Rulings on objections
Q: When should the ruling of the court be given?
A: Immediately after the objection is made except when the
court desires to take a reasonable time to inform itself on the
question presented. However, the court must give its ruling
during the trial and at such time as will give a party an
opportunity to meet the situation presented by the ruling.
NOTE: Words like “submitted” or “the objections are noted”
are not appropriate rulings and neither sustains or overrules
the objections.
Q: What do you mean by “sustained”?
A: The judge considers the question as improper and the
witness will not be allowed to answer the question. This
means the exclusion of a testimonial evidence.
Q: What do you mean by “overruled”?
A: This means that for the court, the question is proper and
the witness will be allowed to answer.
NOTE: The ruling sustaining the objection must specify the
ground or grounds relied upon.
Tender of excluded evidence (Offer of proof) (Rule 132)
Sec. 40.Tender of excluded evidence. — If documents or
things offered in evidence are excluded by the court, the
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NOTES ON EVIDENCE
Kenneth & King Hizon (3A) _____________________________________________
offeror may have the same attached to or made part of the Note that the first method has the advantage of brevity and
record. If the evidence excluded is oral, the offeror may efficiency but it does not create as clear a record as the
state for the record the name and other personal second method.
circumstances of the witness and the substance of the
proposed testimony. (n) Q: May an objection be interposed to the manner of tender
of excluded evidence?
Q: Why make a tender of excluded evidence?
A: The rules are silent on this issue. However, there is no
A: cogent reason to disallow the objection. If the document
1. To allow the court to know the nature of the testimony tendered is not described, or identified, its substance stated
or the documentary evidence and convince the trial in vague and general terms or when the purpose for which it
judge to permit the evidence or testimony is offered is not declared, then the evidence has to be
2. Even if he is not convinced to reverse his earlier ruling, objected to. If the testimony is in the form of conclusion,
the tender is made to create and preserve a record for thus, it fails to disclose sufficient information to enable the
appeal court and the other party to determine its admissibility, the
same may be the target of an objection.
Q: How is the tender done?
Q: Distinguish formal offer of evidence from offer of proof.
A: It depends. If documents or things offered in evidence are
excluded by the court, the offeror may have the same A:
attached to or made part of the record. If the evidence
excluded is oral, the offeror may state for the record the Formal offer of evidence Offer of proof
name and other personal circumstances of the witness and Refers either to the offer of The process by which a
the substance of the proposed testimony. the testimony of a witness proponent of an excluded
prior to the latter’s evidence tenders the same. if
NOTE: The offering counsel must produce, describe, identify testimony, or the offer of the what has been excluded is
the object or document and in case of the latter, to state the documentary and object testimonial evidence, the
contents of the document that is sought to be admitted evidence after a party has tender is made by stating for
where the substance of the same is not apparent on its face. presented his testimonial the record the name and
Reading the substance of the document is an accepted way of evidence other personal circumstances
stating its contents for the record in states which recognize a of the proposed witness and
tender. A disclosure of the contents is necessary in order for the substance of his
the court to determine its competence and relevance. proposed testimony. If the
evidence excluded is
The next step is to state the purpose for which the object or documentary or things, the
document sought to be attached is offered, and to ask that it offer of proof is made by
be marked for identification and have it attached to the having the same attached to
record. or made a part of the record.

Q: What are the 2 traditional methods of making the

tender? --END—

A:
1. Where the counsel tells the court what the proposed
testimony will be. This is the method prescribed in the
Rules of Court. The counsel shall state for the record the
name and personal circumstances of the witness.
2. By using the question and answer form REFERENCE:

NOTE: Whichever method is to be used lies in the discretion Riano, Willard B., EVIDENCE: The Bar Lecture Series, 2009, Rex
of the trial court. Whichever method of tender is used, the Book Store.
advocate must see to it that the offer must be specific
enough to contain the facts and circumstances of the matter
sought to be proved by the excluded evidence.

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