Week 7 Evidence PDF

Week 7 Evidence
Distinctions Between the Best Evidence Rule and the Parol

Evidence Rule
1. The best evidence rule establishes a preference for the original document
over a secondary evidence thereof. The parol evidence rule is not concerned
with the primacy of evidence but presupposes that the original is available.
2. The best evidence rule precludes the admission of secondary evidence if the
original document is available. The parol evidence rule precludes the admission
ofother evidence to prove the terms of a document other than the contents of
the document itself for the purpose of varying the terms of the writing.
3. The best evidence rule can be invoked by any litigant to an action whether or
not said litigant is a party to the document involved. The parol evidence rule
can be invoked only by the parties to the document and their successors in
interest.
4. The best evidence rule applies to all forms of writing. The parol evidence
applies to written agreements (contracts),
and "wills.
Waiver of the Parol Evidence Rule

The parol evidence rule can be waived by failure to invoke the benefits of the
rule. This waiver may be made by failure to object to the introduction of
evidence aliunde. Inadmissible evidence may be rendered admissible by failure
to object (Santiago v. Court of Appeals, 278 SCRA 98; Policarpio v.
Court of Appeals, 194 SCRA 729). Failure to object to the parol evidence
presented by the adverse party operates as a waiver of the protection of the
parol evidence rule (Willex Plastic Industries Corporation v. Court of Appeals,
256 SCRA 478).
Probative Value
1. Even if parol evidence is admitted, such admission would not mean that the
court would give probative value to
"
the parol evidence. Admissibility is not the equivalent of probative value or
credibility.
2. If the petitioner for instance claims that the parties had entered into a verbal
agreement subsequent to the written agreement, the existence of the verbal
agreement must
be sufficiently supported by evidence (Raymundo G.R. No. 171036, October

17, 2008).
v . Lunaria,
C — Authentication and Proof of Documents (Rule 132)
Concept of Authentication
1. The concept of "authentication" occupies a vital place in the presentation of
evidence. Not only documents but also objects introduced in evidence need to
be authenticated. It is the preliminary step in showing the admissibility of an
evidence.
For example, a weapon, let us say, a .38 revolver, 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 crime scene. To convince the court, the proponent of
the evidence must call someone to identify the weapon and affirm: "This is the
weapon I found in the crime scene." This someone could be the police
investigator or someone else who handled the evidence. When he affirms it is
the same weapon, then the evidence is authenticated.
2. Litigation always involves the authentication of either object or
documentary evidence. Unless a document is considered self-authenticating,
it will not be admitted in evidence without a prior authentication. The
requirement for authentication of evidence discloses the existence in our legal
system of a legal presumption that is not however, directly written in statutes or
procedural rules but is necessarily implied therein. This presumption is: That
objects and documents presented in evidence, are as a rule, counterfeit. In
short, an evidence is
OBJECT AND DOCUMENTARY EVIDENCE C — Authentication and Proof of

Documents
231
not presumed authentic. It is therefore, incumbent upon the proponent of the

evidence to prove its authenticity.
3. Authentication of a private document does not require a seal. There shall be
no difference between sealed and unsealed private documents insofar as their
admissibility as evidence is concerned (Sec. 32, Rule 132, Rules ofCourt).
Authentication under the Rules on Electronic Evidence

1. The person seeking to introduce an electronic document in any legal
proceeding has the burden of proving its authenticity (Sec. 1, Rule 5, Rules on
Electronic Evidence).
2. As previously mentioned, the authentication of electronic document

requires 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 pro- cedures or devices as may
be authorized by the Supreme Court or by law for authentication of electronic
documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the satisfaction of
the judge (Sec. 2, Rule 5, Rules on Electronic Evidence).
Concept of a Document
The Philippine Supreme Court has defined a document as a "deed, instrument
or other duly authorized paper by which something is proved, evidenced or set
forth" (Bermejo v. Bar- rios, 31 SCRA 764; People v. Camacho, 44 Phil. 484;
U.S. v. Orera, 11 Phil. 596). However, for documents to be considered
as documentary evidence, it must be "offered as proofof their contents" (Sec. 2,

Rule 130, Rules of Court). If the document is not offered for that purpose, the
document is a mere object evidence as when the purpose is merely to prove its
existence. Hence, not every document is to be received as a documentary
evidence.
232
EVIDENCE 
(The Bar Lectures Series)
Public and Private Documents

1. Documents may either be public or private. This classification is for the
purpose of their presentation in evidence.
2. Section 19 of Rule 132 enumerates the public documents, thus:
r - "Sec. 19. Classes of documents. — For the purpose of their

presentation in 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 acknowledged before a notary public except last
wills and testaments; and
(c) Public records kept in the Philippines, of private documents
required by law to be entered therein.
All other writings are private."
3. The written official acts and records of the official acts of the sovereign
authority, do not refer only to those of the Philippines. They also refer to those
of a foreign country. Documents acknowledged before a notary public are
public documents except last wills and testaments which are private documents
even if notarized (Sec. 19[b], Rule 132, Rules of Court). Assumed to be
included in this class of public document are those acknowledged before an
officer, other than a notary public authorized to administer oaths. In the case of
a public record of a private document required by law to be entered in a public
record, the public document does not refer to the private document itself but
the public record of that private document.
4. The rule does not give a specific definition of a private document except by
providing that "... All other writings are private" (Sec. 19, Rule 132, Rules of
Court).

Documents
Church Registries
233
It is well-settled that Church registries of births, mar- riages and deaths made
subsequent to the promulgation of General Orders No. 68, promulgated on
December 18, 1889, and the passage of Act No. 190, enacted on August 7,
1901, are no longer public writings, nor are they kept by duly authorized
public officials. They are private writings and their authenticity must therefore
be proved, as are all other private
writings in accordance with the Rules of Evidence (Llemos Llemos, G.R. No.
150162, January 26, 2007).
' Importance of Knowing Whether a Document is Public or Private

' 1. Before the admission of a private document in evidence that is offered as
authentic, its due execution and authenticity must be proved (Sec. 20, Rule
132, Rules of Court). This requirement does not apply to a public document
which is admissible without further proof of its due execution and genuineness.
2. For example, under Sec. 30 of Rule 132, every document duly notarized
may be presented in evidence without further proof, the certificate of
acknowledgment being prima facie evidence of the execution of the instrument
or document involved.
In other words, notarized documents, being public documents, do not require
authentication, unlike private documents. They also enjoy the prima facie
presumption of authenticity and due execution (Domingo v. Robles, 453
SCRA 812).
3. It is well-settled that a document acknowledged before a notary public is a

public document that 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 presented evidence that is clear and convincing. A bsent such
evidence, the presumption must be upheld. In addition, one who denies the due
execution of a deed where one's signature appears has the burden of proving
that contrary to the recital in thejurat, one never appeared before the notary
public and acknowledged the deed to be a voluntary act. Deni- als without clear
and convincing evidence to support the claim of fraud and falsity are not
sufficient to overthrow the above- mentioned presumption (Spouses Santos v.
Spouses Lumbao,
G.R. No. 169129, March 28, 2007).
"Notarized documents may be presented in evidence without further proof, the

certificate of acknowledgment being prima facie evidence of the execution of
the instrument or document involved (Sec. 30, Rule 132, Rules of Court). To
overcome the 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.
Notarization converts a private document into a public document, making it
admissible in court without further proof of its authenticity" (St. Mary's Farm,
Inc. v. Prime Real Properties, Inc., G.R. No. 158144,
July 31, 2008, citing Mallari v. Alsol, 484 SCRA 148).
Sec. 30 of Rule 130 affirms the above principles, thus:
"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
acknowledgement being prima facie evidence of the execution of
the instrument or document involved."
4. A notary public is empowered to perform a variety of notarial acts, most
common of which are the acknowledgment and affirmation of a document or
instrument. In the performance of such notarial acts, the notary public must be
mind- ful of the significance of the notarial seal as affixed on a document. 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. Thus, notarization should not be treated as an empty, meaningless,
or (Agagon v. Bustamante,
A.C. No. 5510, December 20, 2007).

Documents routinary act. It is invested with substantive public interest, such that only
those who are qualified or authorized may act as notaries public. It is through the act of
notarization that a private document is converted into a public one, making it admissible in
evidence without need of preliminary proof of authenticity and due execution. Indeed, a
notarial document is by law entitled to full faith and credit upon its face, and for this
reason, notaries public must observe utmost care in complying with the elementary
formalities in the performance of their duties. Otherwise, the confidence of the public in the
integrity of this form of conveyance would be undermined
5. Sec. 23 of Rule 130 also confirms the significance of a public document.
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 the case of other public documents, 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 ofthe same. Sec. 23 as quoted,
declares:
"Sec. 23. Public documents as evidence. — Docu- ments

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 third persons of the facts which gave rise to their
execution and of the date of the latter.”
 
Evidence of Official Records of Official Acts; Attestation
1. While a public document does not require the authentication imposed upon
a private document, there is a necessity for showing to the court that indeed a
record ofthe official acts of official bodies, tribunals or of public officers
exists.
How is this effected? Sec. 24 ofRule 132 supplies the answer. The record of a
public document may evidenced by:
(a) An official publication thereof; or

236
EVIDENCE 
(The Bar Lectures Series
(b) By a copy of the document attested by the officer having legal custody of
the record or by the attestation of his deputy; if the record is not kept in the
Philippines, the attestation must be accompanied by a certificate that such
officer has the custody; if the office in which the record is kept is in a foreign
country, the certificate maybe
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.
2. The attestation referred to in the preceding number must "state, in substance,

that the copy is a correct copy of the original, or a specific part thereof, as the
case may be. The attestation must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a court having a seal, under the
seal of such court." (Sec. 25, Rule 132, Rules of Court)
3. The certificate and attestation are required because of the general rule on the
"irremovability of public records" embodied in Sec. 26 ofRule 132, thus:
"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 inspec- tion of the record is essential to the just
determination of a pending case."
Special Power of Attorney Executed Abroad
In one case, a special power ofattorney was executed and acknowledged before
a notary public of the state of W ashing- ton, USA, authorizing the son of the
principal to file in the Phil- ippines a suit against certain persons. The power of
attorney did not contain a certificate of authentication by a secretary ofthe
Philippine embassy or legation, consul general, consul, vice-consul or consular
agent or by any officer in the foreign service ofthe Philippines stationed in the
foreign country.
)

Documents
The Court held that a notary public in a foreign country is not of those who can
issue the certificate mentioned in Sec- tion 24 ofRule 132 ofthe Rules ofCourt.
The Court ruled that non-compliance with Section 24 of Rule 130, will render
the special power of attorney inadmissible in evidence. Not being duly
established in evidence, the special power of attorney cannot be used by the
son to file a suit in representation of his father. The case filed then is considered
as one not filed by a real party in interest. Not being a real party in interest and
without the authority to pursue the case, the son could not have validly
commenced the case. The argument that the lack of consular authentication is a
mere technicality that can be brushed aside in order to uphold substantial
justice was also considered as untenable. The failure to have the special power
of attorney authenticated according to the Court, is not a mere technicality but
a question of jurisdiction. Citing the previous case of Lopez v. Court of Appeals
(156 SCRA 838), it was held that jurisdiction over the real party in interest was
never acquired by the courts. As a result, all proceedings in the lower courts
are declared null and void and thus, set aside (Heirs of Medina v. Natividad,
G.R. No. 177505, November 27, 2008).
Evidence of Public Record of a Private Document

1. A public record ofa 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 custo- dian of the record, with an
appropriate certificate that such officer has the custody (Sec. 27, Rule 132,
Rules of Court).
How to Prove the Lack of Record

A litigation does not always involve evidence ofthe existence of a record.
Sometimes the issue centers on the absence of an official record. How then
may the absence of a record be proven?
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 following matters:
(a) there has been a diligent search ofthe 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 written statement must be accompanied by a certificate that such officer
has the custody of official records (Sec. 28, Rule 132, Rules of Court).
Last Wills and Testaments

Last wills and testaments must undergo an authentication process even if they
are notarized in accordance with A rt. 806 of the Civil Code of the Philippines.
The Rules of Court (Rule 132, Sec. 19[b]), while declaring that the term
"public document" includes one acknowledged before a notary public,
nevertheless expressly excludes last wills and testaments. Besides, substantive
law provides that no will shall pass either real or personal property unless
proved and allowed in the proper court (Art. 838, Civil Code of the
Philippines). T h e same substantive rule is echoed in Sec. 1 of Rule 75 which
provides:
"Sec. 1. Allowance of will necessary. Conclusive as to execution.

— No will shall pass either real or personal estate unless it is
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." (Emphasis supplied)
Proof of a Private Document
1. Sec. 20 of Rule 132 provides:
"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 identi- fied as that which
it is claimed to be.
239
2. Where the private document is offered in evidence as authentic, there is a

need to prove its due execution and authenticity. Section 20 recognizes two
ways of proving the due execution and genuineness of a private instrument.
One way is to rely on the personal knowledge of a witness. Here, the witness
attests to its genuineness because the document was executed or signed in his
presence, i.e., he personally witnessed the execution or writing of the
document. The second mode does not require that the document be executed in
the presence of the witness. Here the witness testifies or shows evidence that
the signature or handwriting of the maker is genuine (Sec. 20, Rule 132, Rules
of Court; Ong v. People, 342 SCRA 372).
3. The manner of authenticating a document required by Sec. 20 ofRule 132,

applies only when a private document is offered as authentic as when it is
offered to prove that the document was truly executed by the person purported
to have made the same. W here the document is offered in evidence not
as authentic, its genuineness and due execution need not be proven as when the
only purpose is for the offeror to show that a certain piece of document exists.
W hen a witness says: "I found this document in the drawer of my table," the
document only needs identification and not authentication. But when the
witness wants to show that the deed was indeed executed by his brother, the
process of authentication required by Sec.
20 must be complied with.

How to Prove Genuineness of a Handwriting
1. Sec. 22 ofRule 132 enumerates how the genuineness of a handwriting may
be proved:
"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 thus has
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."
2. Sec.22 ofRule132doesnotrequireexperttestimony 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: (1) he has seen the person write; or (2) he 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; (3) by a
comparison made by the witness or the court, with writings admitted or treated
as genuine by the party against whom the document is offered, or proved to be
genuine to the satisfaction of the judge (Heirs ofAmado G. Celestial, 408
SCRA 291).
Ancient Documents
Celestial v. Heirs ofEditha
There is an exception to the rule requiring proof of the genuineness and due
execution of a private document. The exception is in the case of a private
"ancient document." A private document is considered ancient when it is more
than thirty (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 (Sec. 21, Rule 132, Rules of Court).
When a document is ancient pursuant to the descriptions in Section 21 ofRule

132, evidence ofits authenticity need not be given, i.e., there is no need to prove
its genuineness and due execution. This means that there is no necessity for ob-
servance of the authentication process under Section 20 such as the testimony
of a person who saw the document executed or by one who will show evidence
of the genuineness of the handwriting of the maker of the document. It must
however, be established first that the document is ancient and that it has the
characteristics of a document so provided under Sec- tion 21. When all these
are done, no other evidence ofits authenticity need be given.
Sec. 21 ofRule 132 is clear on this point: To quote:
"Sec. 21. When evidence of authenticity of document not

necessary. — Where a private document is more than thirty years
old, is produced from a custody in which it would naturally be
found if genuine, and is unblemished by any alterations or
circumstances of suspicion, no other evidence of its authenticity
need be given."
Bar 1990
In the trial of a case on July 5,1990, plaintiff offered in evidence a receipt dated
July 7, 1959 issued by defendant company which was found in a cabinet for
receipts of payment. It is without any blemish or alteration. As no witness
testified on the execution and authenticity of the document, defendant moved
for the exclusion of this receipt notwithstanding that it is a private writing.
Should the said motion be granted?
Suggested answer
The motion should not be granted. There is no need for a witness to testify as to
its execution and authenticity. The testimony will only be for the purpose of
identify- ing the document and not to prove its authenticity. There is an
exception to the rule requiring proof of the genuineness and due execution of
a private document. The excep-
tion is in the case of a private "ancient document" as in the instant case. When
this is done, there is no need to prove its authenticity.
A private document is considered ancient when it is more than thirty (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
(Sec. 21, Rule 132, Rules of Court). Note: While a witness is not needed to
prove the due execution and authenticity of the document, a witness is needed
to iden-
tify the same.
Note: Even ifthe document is not ancient, it is submitted that a private
document the authenticity of which has been admitted by the parties requires
no further authentication.
How to Explain Alterations in a Document

The party producing the document as genuine but which bears alterations after
its execution has the duty to account for any alteration found in a document
purported to be genuine. For such purpose, he may show any ofthe following:
(a) that the alteration was made by another without his concurrence; or
(b) that the alteration was made with the consent of the parties affected by it;
(c) that the alteration was otherwise properly or innocently made; or that the
alteration did not in anyway change the meaning or language of the instrument.
Failure to do any of the above will make the document inadmissible in

evidence (Sec. 31, Rule 132, Rules ofCourt).
How to Prove Documents in an Unofficial Language

Because the rule provides that a document written in an unofficial language
shall not be admitted as evidence, it must be accompanied by a translation into
English or Filipino. To avoid interruption ofcourt proceedings, attorneys are
required to have such translation prepared before trial (Sec. 33, Rule 132, Rules
of Court).
OBJECT AND DOCUMENTARY EVIDENCE
C — Authentication and Proof of Document
Impeachment of Judicial Record

1. A judicial record refers to the record ofjudicial pro-
ceedings (Black's Law Dictionary, 

only include official entries or files or the official acts of a judicial officer
(Wharton's Criminal Evidence, 11th Ed., §805), but also the judgment of the
court (Black's Law Dictionary, 762).
2. Sec. 29 of Rule 132 authorizes the impeachment of any judicial record if

there be evidence of the existence of any of the following grounds: (a) lack 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.
Registration of Contracts
1. Where a contract is required by law to be registered, the same must be, as a
rule, in a public instrument. 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 instrument (Art.
1358, Civil Code of the Philippines).
2. Public documents are evidence, even against a third person, of the fact which
gave rise to their execution and of the date of its execution. In the case of
public documents consisting of public records, they are also prima facie
evidence of the facts stated in the document (Sec. 23, Rule 132, Rules of
Court).
3. Certain contracts must be embodied in a public instrument in order to be
valid. Examples: (a) A donation of an immovable (Art. 749, Civil Code of the
Philippines); (b) A donation of a movable with a value exceeding five
thousand pesos (Art. 748, ibid.); (c) A partnership where immovable property
or real rights are contributed (Art. 1771, ibid.)
Chapter IV
TESTIMONIAL EVIDENCE A — Qualifications of
Witnesses
Nature of Testimonial or Oral Evidence

1. Testimonial or oral evidence is evidence elicited from the mouth of a witness
as distinguished from real and documentary evidence (Black's Law
Dictionary, 5th Ed., 1323). It is sometimes called viva voce evidence which
literally means "living voice" or by word of mouth. In this kind of evidence, a
human being is called to the stand, is asked questions, and answers the
questions asked ofhim. The person who gives the testimony is called a
"witness."
2. Recall that competent evidence means evidence that is not excluded by the
law or by the rules. It therefore means the eligibility ofan evidence to be
admitted by the court. When applied to a witness, competence means that the
witness is qualified to take the stand and testify. It means that he is fit or that 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 ofa 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.
3. Experience and plain observation will tell us that the presentation and
introduction of every kind of evidence,
244
whether it be object, demonstrative or documentary evidence, needs the

intervention of a witness. The admission of any evidence requires its
identification by a witness. It is a legal truth that identification precedes
authentication. Without a witness, no evidence can ever be authenticated. Even
the so- called "self-authenticating documents" need a witness to identify the
document. The reason is simple. Being inanimate, a document or an object
cannot speak for itself.
Presumption in Favor of Competence of a Witness

As a general rule, 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 (Jones on Evidence, Vol. 3, §796).
Qualifications of a Witness
1. As to the qualifications of a witness, the relevant provision provides:
"Section 20. Witnesses; their qualifications. — Ex- cept as

provided in the next succeeding section, all persons who can
perceive, and in perceiving, can make known their perception to
others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or
conviction of a crime unless otherwise provided by law, shall not
be a ground for disqualification."
2. The above provision supplies the basic qualifications of a witness, namely:
(a) he can perceive; and in perceiving
(b) he can make known his perception to others.
To these, we may add the following:

(a) he must take either an oath or an affirmation (Section 1, Rule 132, Rules of
Court); and
(b) he must not possess the disqualifications im-
posed by law or the rules
1. W hile the taking of an oath or of an affirmation is either rarely mentioned

and is merely glossed over by com- mentators in discussing the qualifications
of a witness to take the stand, the rule clearly requires that the examination of a
witness in a trial or hearing shall be done xxx 

affirmation (Section 1, Rule 132, Rules ofCourt). The willing- ness to take an
oath or affirmation is an essential qualification ofa witness. No court would and
should allow the testimony of someone who desires to testify but who refuses
to swear or to make an affirmation.
2. A person is not qualified to be a witness if he is incapable of understanding

the duty to tell the truth. An oath or affirmation is necessary for the witness to
recognize the duty to tell the truth. The oath ofa witness signifies that he is
swearing to the Creator "to tell the truth and nothing but the truth" and that if
he does not, he will later on answer for all the lies he is guilty of. Of course, in
the early stages of legal history, this was concededly the underlying reason for
requiring an oath before a witness testifies. In modern times, this reason may
have been obscured by a universal shift in moral values but the oath is
nevertheless, required as a rule, even if to many, the oath appears merely to be
a pious incantation or a meaningless ritual which must simply be done to be
allowed to testify.
3. The issue which a judge must resolve before a witness is allowed to take
the stand is whether the witness understands the nature ofan oath, realizes the
moral duty to tell the truth, and understands the prospects of being punished for
a falsehood. This understanding is not necessarily inferred from the age of the
witness. One American case (People v. Berry [1968] 260 CA2d 649, 67 CR
312), ruled that it is not required that the understanding of the importance of
an oath be under oath or a detailed one. It is enough that the witness
understands and believes that some earthly evil will occur to him for lying.
4. A ny objection to the competency of a witness raises an issue of fact:

whether or not the witness is capable of understanding the duty to tell the
truth. The issue is addressed to judicial determination and in the absence of a
clear abuse of discretion, the trial court's findings will not be reversed (Peo-
ple v. Blagg [91970] 10 CA3d 1035, 89 CR 446).
5. Not all may want to take an oath for reasons of re- ligion or the lack of it.
Thus, the rule in this jurisdiction af- fords the courts the flexibility to deal with
those who refuse to being sworn by requiring the witness to make an
affirmation instead. Consider this hypothetical:
Suppose that the prosecution calls a witness and offers his testimony to prove
that it was indeed the accused who ran over the victim with a car. Here goes the
brief exchange between the bailiff or appropriate court personnel and the
supposed witness:
"Sir, please raise your right hand."
The supposed witness retorts: "For what?"
The bailiff snaps: "Y ou are going to be sworn before you testify, Sir."
"No! I will not!" 

"Do you instead want to make an affirmation?" "I won't do that either!"
The most likely scenario is of the court dismissing the proposed witness. Most
likely that person will not be allowed to testify. This is because he failed to
meet the oath or affirmation requirement.
Ability to Perceive
A witness must be able to perceive an event. Thus, it would be absurd to ask a
blind man what he saw, or a deaf person what he heard. Corollary to this
capacity to perceive is the requirement that the witness must have personal
knowledge of the facts surrounding the subject matter of his testimony.
Section 36 of Rule 130 explicitly requires that a witness can testify only to
those facts which he knows of his personal knowledge, i.e., those which are
derived from his own perception. When the witness takes an oath or an
affirmation to tell the truth, he cannot live up to that oath or affirmation with-
out his ability to show that his testimony is based on his personal knowledge.
Without this personal knowledge, the wit-
ness lacks the competence to testify. To illustrate:
A witness is called to testify in a defamation suit for alleged defamatory acts
committed against the complainant on March 27, 2008 in the corner of XYZ
and ABC Sts. in Manila. He willingly took the oath.
Q: Sir, where were you on the 27th of March 2007 at around 7:30 in the
evening?
A I was in Israel, Sir for a pilgrimage.
Obviously, the witness will be dismissed from the stand. The court has no use
for him. He is incompetent for the purpose for which he was called. While
taking the oath enabled him to meet the first requirement for competency, he
miser- ably failed the next test. He did not perceive anything about the incident
and could offer no facts about the incident based on his personal knowledge.
Ability to Make Known the Perception to Others

1. The ability to make known the perception ofthe witness to the court
involves two factors: (a) the ability to remember what has been perceived;
and (b) the ability to communicate the remembered perception. Consider a
witness who has taken the oath and who has personal knowledge of the event
on which he is going to testify. Imagine the exchange that follows in the
courtroom:
Q: W hat incident if any occurred... etc... etc.... A: Sorry, sir. I... can't recall... I
don't remember.
TESTIMONIAL EVIDENCE A — Qualifications of W itnesses
249
It is of common reason to realize that a witness is presented to testify on a

matter he has perceived. If he cannot remember, he cannot be a competent
witness.
2. Deaf-mutes are not necessarily incompetent as witnesses. They are

competent where they: (a) can understand and appreciate the sanctity of an
oath; (2) can comprehend facts they are going to testify to; and (3) can
communicate their ideas through a qualified interpreter (People v. Tuangco,
345 SCRA 429).
Competency and Credibility

1. Competence is a matter of law or in this jurisdiction, also a matter of rule.
Credibility of the witness has nothing to do with the law or the rules. It refers
to the weight and the trustworthiness or reliability ofthe testimony. In deciding
the competence of a witness, the court will not inquire into the trustworthiness
of the witness.
2. Accordingly, a prevaricating witness or one who has given contradicting

testimony is still a competent witness (U.S. v. Cook, 949 F2d 289 [10th Cir.
1991]). Although he may be competent as a witness, his testimony may not be
given much weight by the court or no weight at all ifthe court deems him not
worthy of belief. The competence of the witness must hence, be sharply
distinguished from his credibility.
Bar 2004
Distinguish clearly but briefly between:
1. xx
2. Competency of the witness and credibility of the witness.
Competency of a witness has reference to the basic qualifications of a

witness as his capacity to perceive and his capacity to communicate his
perception to others. It also includes the absence of any of the
disqualifications imposed upon a witness (Sees. 20-24, Rule 130, Rules of
Court). Credibility of the witness refers to the believabil- ity of the witness
and has nothing to do with the law or the rules. It refers to the weight and
the trustworthiness
or reliability of the testimony.
In deciding the competence of a witness, the court will not inquire into the
trustworthiness of the witness. Accordingly, a prevaricating witness or one
who has given contradicting testimony is still a competent witness (U.S.
v. Cook, 949 F2d 289 [10th Cir. 1991])
Suggested answer:
3. Bias is not even a basis for declaring a witness incompetent to testify
(U.S. v. Cervantes-Pacheco, 826 F2d 310
[5th Cir. 1987])
4. Under the Rules of Court, 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
(Section 23, Rule 130). This rule is one which is directed to the issue of
competency of a witness, not to his credibility.
5. Drug abuse will not render a person incompetent to testify (U.S. v.

Behrens, 689 F.2d 154 [10th Cir. 1982]). Drug abuse becomes relevant only
if the witness was under the in- fluence of drugs at the time he is testifying
or at the time the events in question were observed (U.S. v. Novo Sampol,
636 F.2d 621 [B.C. Cir. 1980]). While bias and drug abuse may not be
grounds for barring a witness from testifying, they may serve as grounds
for attacking the credibility ofthe witness.
6. Questions concerning the credibility of a witness are best addressed to

the sound discretion of the trial court as it is in the best position to observe
his demeanor and bodily move- ments (Llanto v. Alzona, 450 SCRA 288).
The Supreme Court
.
generally defers to the trial court's assessment because it has the singular
opportunity to observe the demeanor of witnesses and their manner of
testifying (People v. Bustamante, G.R No. 177769, September 12, 2007).
7. The findings of trial courts on the credibility of witnesses deserve a high
degree of respect and will not be disturbed on appeal absent a clear showing
that the trial court had overlooked, misunderstood or misapplied some facts or
circumstances ofweight and substance which could reverse a
judgment of conviction. Also, the assignment of value to the testimony of a

witness is essentially the domain of the trial court and that is why the Supreme
Court is not the proper forum from which to secure a re-evaluation of factual
issues, except only where the factual findings ofthe trial court do not find
support in the evidence on record or where the judgment appealed from was
based on a misapprehension offacts (Las- cano v. People, G.R. No. 166241,
September 7, 2007).
Time and again, the Court has held that when it comes to the issue of
credibility of the victim or the prosecution witnesses, the findings of the trial
courts carry great weight and respect and, generally, the appellate courts will
not overturn the said findings unless the trial court overlooked, misunderstood
or misapplied some facts or circumstances of weight
and substance which will alter the assailed decision or affect the result of the
case. This is so because trial courts are in the best position to ascertain and
measure the sincerity and spontaneity of witnesses through their actual
observation of the witnesses' manner of testifying, their demeanor and be-
havior in court. Trialjudges enjoy the advantage ofobserving the witness'
deportment and manner of testifying, the "fur- tive glance, blush of conscious
shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full
realization of an oath" — all of which are useful aids for an accurate de-
termination of a witness' honesty and sincerity. Trial judges, therefore, can
better determine if such witnesses are telling the truth, being in the ideal
position to weigh conflicting testimonies. A gain, unless certain facts of
substance and value
were overlooked which, if considered, might affect the result
of the case, its assessment must be respected, for it had the opportunity to
observe the conduct and demeanor of the witnesses while testifying and
detect ifthey were lying. The rule finds an even more stringent application
where the said findings are sustained by the Court of A ppeals (People v.
Cerilla, 539 SCRA 251; People v. Aguilar, G.R. No. 177749, December
17,2007)
Other Factors that Do Not Affect the Competency of a Wit- ness

1. Under Section 20 of Rule 130, except as provided by the law and the rules,
the following factors do not, as a general rule, constitute a disqualification of
a witness:
• (a) religious belief;  
• (b) political belief;  
• (c) interest in the outcome of the case; or  
• (d) conviction of a crime, unless otherwise provided  

.
by law (Example: 
fication of a document, perjury or false testimony are disqualified from being
witnesses to a will). (Art. 821, Civil Code ofthe Philippines). 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.
2. The relationship of a witness with a party does not ipso facto render him a
biased witness in criminal cases where the quantum of evidence is proof
beyond reasonable doubt. There is no reason why the same principle should not
apply to a civil case where the quantum of evidence is only preponder- ance of
evidence (Northwest Airlines, Inc. v. Chiong, G.R. No. 155550, January 31,
2008).
Bar 1994
Al was accused of raping Lourdes. Only Lourdes testified on how the crime
was perpetrated. On the other
those who have been convicted of falsi-

TESTIMONIAL EVIDENCE A — Qualifications of Witnesses
hand, the defense presented Al's wife, son and daughter to testify that Al was
with them when the alleged crime took place. The prosecution interposed a
timely objection to the testimonies on the ground of obvious bias due to the
close relationship of the witnesses with the accused.
If you were the judge: 

(1) How would you rule on the objection
(2) xx
Suggested answer:
(1) I would overrule the objection. Interest in the outcome of a case which also
includes close relationship, is not a ground to disqualify a witness (Section 20,
Rule 132, Rules of Court).
(2) xxx
Bar 1994
Louise is being charged with the frustrated murder of Roy. The prosecution's
lone witness, Mariter, testified to having seen Louise prepare the poison
which she later surreptitiously poured into Roy's wine glass. Louise sought the
disqualification of Mariter as witness on account of her previous conviction of
perjury.
(1) Rule on Louise's contention.
(2) xx
Suggested answers:
(1) The contention of Louise has no legal basis. Basic is the rule that previous
conviction is not a ground for disqualification of a witness, unless otherwise
provided by law. Mariter's conviction is not sufficient to have her disqualified
to testify. Her situation is not one of the exceptions provided for by law .
(2) xx
253
x
x
B — Disqualifications of Witnesses
Disqualification by Reason of Mental Incapacity

1. In relation to a disqualification by reason of mental incapacity, Section 21 of
Rule 130 declares:
"Section 21. Disqualification by reason of mental incapacity x x x.

— 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
2. To be disqualified as a witness by reason of mental incapacity, the following
must concur:
(a) the person must be incapable of intelligently making known his perception
to others; and
(b) his incapability must exist at the time of his production for examination.
Section 21(a) of Rule 130 establishes the rule that the mental incapacity of the
witness at the time of his perception of the events subject of the testimony does
not affect his competency as long as he is competent at the time he is
produced for examination to make known his perception to others. His
incapacity at the time of perception although without legal effect on his
competency to testify, would however, concededly have an adverse effect on
his credibility.
3. The test supplied by the Rules of Court is a simple test: Is the mental
condition of the proposed witness at the time he is to testify such that he is
incapable of intelligently making known his perception to others? (Section
21[a], Rule 130, Rules of Court). The answer to this question will determine
whether or not a person is a mentally competent witness.
to others
; 
(b) xxx"
TESTIMONIAL EVIDENCE 
B — Disqualifications of W itnesses
Disqualification by Reason of Immaturity

1. Section 21 of Rule 130 provides:
"Section 21. Disqualification by reason of xxx immaturity. — The

following persons cannot be witnesses:
(a) xx
(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."
255
x
2. To be disqualified as a witness by reason ofimmaturity the following must
concur:
(a) the mental maturity ofthe witness must render him incapable of perceiving
the facts respecting which he is examined; and
(b) he is incapable of relating his perception truthfully (Section 21[b], Rule
130, Rules of Court).
3. Note that in a disqualification by reason of mental incapacity under Section

21(a) of Rule 130, the incompetence of the witness must exist not at the time of
his perception of the facts but at the time he is produced for examination, and
consists in his inability to intelligently make known what he has perceived. In
disqualification by reason of immaturity, the
incompetence of the witness must occur at the time the witness perceives the
event including his incapability to relate his perceptions truthfully.
The rule on disqualification by reason ofimmaturity must however, be

construed in relation to the Rule on Examination of A Child W itness (A.M. No.
004-07-SC, December 15, 2000).
Child Witness; Meaning

1. A "child witness" is any person who at the time of giving testimony is below
the age of eighteen (18) years (Sec-
tion 4[a], Rule On Examination ofA Child Witness, A.M. No. 004-07-SC).
2. May a person over eighteen (18) years old be sometimes considered as a
child? Sometimes, he may. In child abuse cases, a child includes one over
eighteen (18) years but 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 a physical or mental disability or condition (Section
4[a], Rule On Examination ofA Child Wit-
ness, A.M. No. 00-4-07-SC)
Competency of a Child Witness

1. Every child is presumed qualified to be a witness. This is the presumption
established by the Rule on Examina- tion of a Child Witness (Section 6 of A.M.
No. 004-07-SC) and to rebut the presumption of competence enjoyed by a
child, the burden of proof lies on the party challenging his competence
(Section 6[b], Rule on Examination of Child Witness).
2. 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 com-
petency examination of the child. The court may do so motu
propio or on motion of a party (Section 6, Rule on Examination ofa Child

Witness).
A party who seeks a competency examination must present proof of necessity
of a competency examination. 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 (Section 6[a], Rule on Examination of A
Child Witness).
3. not open tend the
The competency examination of a child witness is to the public. Only the

following are allowed to at- examination:
(a) The judge and necessary court personnel; (b) The counsel for the parties;
B — Disqualifications ofWitnesses
(c) The guardian ad litem;

257
(d) One or more support persons for the child; and
(e) The defendant, unless the court determines that competence can be fully
evaluated in his absence (Section 6[c], Rule on Examination of A Child
Witness).
4. The competency examination of the child shall be conducted only by the

judge. If the counsels of the parties de- sire to ask questions, they cannot do so
directly. Instead, they are allowed to submit questions to the judge which he
may ask the child in his discretion (Section 6[d], Rule on Examina- tion of A
Child Witness).
5. The questions asked at the competency examination shall be appropriate to

the age and developmental level ofthe 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 (Section 6[e], Rule on Examination of A Child
Witness).
6. The assessment is designed to be a continuing one. The court has the duty of
continuously assessing the competence of the child throughout his testimony
(Section 6[f], Rule on Examination of A Child Witness).
Bar 2005
(a) xx
(b) xx
(c) xx
(d) xx
(e) When may the trial court order that the testi-
mony of a child be taken by live-link television?
Suggested answer:
(e) The court may order that the testimony of the child be taken by live-link
television if there is a likeli-
xxxx
hood 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 trauma must be
of a kind which would impair the completeness or truthfulness of the tes-
timony of the child (Section 25[f], Rule on Examination of
A Child Witness).
Survivorship Disqualification Rule or the Dead Man's Statute

1. The survivorship disqualification rule (dead man's statute) is detailed in
Section 23 ofRule 130 and provides:
'Section 23. Disqualification by reason of death or insanity of

adverse party. — Parties or assignors of parties to a case, or
persons in whose behalf a case is prosecuted, against an executor
or administrator or other representative of a deceased person, or
against a person of unsound mind, upon a claim or demand
against the estate of such deceased person or against such per-
son 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."
2. This rule "applies only to a civil case or a special proceeding" (Regalado,
Remedial Law Compendium ,Vol. II, 2004 Ed. p. 705).
The following are the elements for the application ofthis rule:
(a) The defendant in the case is the executor or administrator or a

representative of the deceased or the
person of unsound mind
(b) The suit is upon a claim by the plaintiff against the estate of said deceased
or person of unsound mind;
(c) The witness is the plaintiff, or an assignor of that party, or a person in

whose behalf the case is prosecuted; and
(d) The subject of the testimony is as to any matter of fact occurring before the
death of such deceased person
26
or before such person became of unsound mind (Section 23, Rule 130, Rules of
Court).
3. A simple hypothetical may help us understand the rule:
Mr. D approaches Mr. C one rainy Sunday morning to borrow one hundred
thousand pesos to be paid exactly a year after. W ithout hesitation, M r. C gives
M r. D the amount requested. M r. C does not require M r. D to ex- ecute a
promissory note. They had been very good friends for as long as they can
remember. Years ago, when Mr. C's small business was on the verge of
bankruptcy it was the generosity of the then wealthy M r. D that bailed him out.
Exactly a day before the agreed date for payment, Mr. D peacefully joins his
Creator without paying the debt. What does Mr. C do? Well, he does what
every creditor would do under the circumstances. He goes to the executor of
what remains of the estate of Mr. D, and tells him of the debt of Mr. D. He
says:
T oday is supposed to be the due date of his debt. I cannot demand payment
from him because he is dead. You are the executor and you are very much
alive. I am
asking you to pay his debt.
The executor retorts:
"Look Sir! I am not sure if you are telling the truth.
Don't get me wrong! I am not calling you a liar but I cannot verify the truth of
your claim. Mr. D is dead. He cannot speak. His lips are forever sealed. I
would be doing an act unfair to the memory of Mr. D if I were to listen to you.
I am sorry, I cannot pay.
What is the effect of the death of Mr. D? The rule is clear. Mr. C is rendered
incompetent to testify as to the transaction he had with Mr. D. He is
incompetent because ofthe possibility that his claim is fraudulent. If M r. C
were to be heard, there would be a high risk of paying a fraudulent or a ficti-
tious claim. It is Mr. C who has the motive to lie. He is the survivor. Mr. D
cannot lie. He is dead. He did not survive. Worse, he cannot answer back. He
cannot disprove the claim
"
"
ofMr. C. To level the playingfieldbetween the lucky survivor and the poor
deceased, our remedial law ancestors 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 is definitely one that 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.
Hence, the name, Dead Man's Statute.
4. The Supreme Court had repeatedly held in not a few cases that the object of
the rule is to guard against the temptation to give false testimony in regard to
the transaction on the part of the surviving party and thereby put the parties
upon equal terms. Its purpose is to close the lips of the plaintiff when death
has closed the lips of the defendant, in order to remove from the defendant the
temptation to do falsehood and the possibility of fictitious claims against the
deceased (Tan v. Court of Appeals, 295 SCRA 755).
It is obvious that the rule, by its terms, intends to protect the representatives
ofthe deceased person when sued in such capacity or a person of unsound mind
on a claim against the estate of the decedent or a claim against the insane
person.
How to Apply the Rule

1. The initial point of inquiry for a clearer understanding of the rule would be
in regard to the parties involved. In order to determine whether or not the
survivorship disqualification rule will apply to a particular situation, we
should know who the plaintiffis. We should also know who the defendant is.
The plaintiff is the person who has a claim against the estate of the decedent or
person of unsound mind. He is the survivor. The defendant is the representative
(executor or administrator) of the deceased or the person of unsound mind.
The persons therefore entitled to invoke the protection of the dead man's statute
are the executor, administrator and any
other representative of a deceased person, when they are the defendants in a
claim against the estate of the deceased. The protection may likewise be
invoked by a person of unsound mind in a claim filed against him.
The rule will not apply where the plaintiff is the executor or administrator as
representative of the deceased or if the plaintiff is the person of unsound mind.
So if the executor of the estate of M r. C, sues M r. D to collect an unpaid debt
incurred in favor ofMr. C by Mr. D before the death ofMr. C, M r. D, although
a survivor, is not precluded from testifying as to the transaction he previously
had with Mr. C, because the case is not upon a claim against the estate ofMr. C
but a claim by his estate against Mr. D.
2. As held by the Court, the rule contemplates a suit against the estate, its
administrator or executor and not a suit filed by the administrator or executor of
the estate. A defendant who opposes the suit filed by the administrator to re-
cover alleged shares of stock belonging to the deceased, is not barred from
testifying as to his transaction with the deceased with respect to the shares
(Razon u. Intermediate Appellate Court, 207 SCRA 234).
Also when a counterclaim is set up by the administrator of the estate, the case
is removed from the operation of the "dead man's statute," the plaintiff may
testify to occurrences before the death of the deceased to defeat the
counterclaim which is not brought against the representative of the estate but
by the representative (Sunga-Chan v. Chua, 363 SCRA 249).
3. The next essential point to consider is the nature of the case. W hat is the
case about? Section 23 of Rule 130 clearly specifies that the case be "upon a
claim or demand against the estate of the deceased person or a person of un-
sound mind." The rule does not apply when the action brought is not "against"
the estate, or not upon a claim or demand "against" the estate. This claim, from
the tenor of the rule, is by its nature civil, not criminal because the estate itself
can-
not be criminally liable

.
4. The parties and the subject of the action having been determined, the inquiry
should now shift to the persons prohibited to testify and the subject matter of
their testimony. The provisions of Section 23 of Rule 130 describes them as the
"parties or assignors of parties to a case, or persons in whose
behalfa case is prosecuted." These persons are those who had previous dealings
with the deceased or the person of unsound mind. The rule is obviously
intended to be exclusive and does not prohibit a testimony by a mere witness to
the transaction between the plaintiff and the deceased and who has no interest
in such transaction. Thus, offering the testimony of a so-called "disinterested
witness" is not a transgression of the rule since the prohibition extends only to
the party or his as-
signor or the person in whose behalfthe case is prosecuted. Consider the

following illustration:
The case is an action for a sum of money against the decedent's estate. The
decedent is Mr. D, the debtor. The plaintiff is Mr. C, the creditor. Mr. C claims
that Mr. D borrowed two hundred thousand pesos from him and that the debt
has been due even before the death of M r. D who despite demand upon him,
failed to pay. Mr. C calls his secretary to testify about the transaction that
occurred in her presence.
Q: What did Mr. D say to Mr. C on that day and time you mentioned earlier?
Adverse counsel: "Objection, Your Honor. I invoke the dead man's statute."
Counsel for Mr. C: "May I be heard, Your Honor before ruling on the
objection?"
Court: 'You may." 

Counsel for Mr. C: "The ground for the objection does not
a
PPly> Y our Honor. The witness is not a plaintiff or an assignor of the plaintiff
or one on whose behalf the claim against the estate is prosecuted."
Court: "Objection is overruled." (The reason for the ruling is obvious. The
witness is not one of those prohibited to testify).
Bar 2001
Maximo filed an action against Pedro, the administrator of the estate of the
deceased Juan, for the recovery of a car which is part of the latter's estate.
During the trial, Maximo presented witness Mariano who testified that he was
present when Maximo and Juan agreed that the latter would pay a rental of
P20,000 for the use of Maximo's car for one month after which Juan should im-
mediately return the car to Maximo. Pedro objected to the admission of
Mariano's testimony.
If you were the judge, would you sustain Pedro's objection? Why?
Suggested answer:
The objection of Pedro should not be sustained. The testimony is admissible

because the witness is not disqualified to testify. Those disqualified under the
dead man's statute or the survivorship disqualification rule are parties or
assignors of parties to a case, or persons in whose behalf a case is prosecuted.
The witness is not one of those enumerated under the rule (Section 23, Rule
130, Rules of Court).
5. The incompetency imposed upon the witness is to testify "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 ofthe testimony is on a fact which transpired after the death of such
person. A lso, since a claim or demand against the estate implies a claim
adverse to the estate, a testimony beneficial to such estate should not be
excluded.
In other words, the rule does not altogether intend to keep the witness out of
the stand altogether. The witness is merely precluded from testifying on
particular topics. 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 of the deceased or insane
person. In one old case,
264
an oral testimony to prove a lesser claim than what might
be warranted by the evidence was allowed (Icard 

40 O.G., 13th Suppl., 215; 71 Phil. 419). Also, witnesses who testify on the
basis of their knowledge of a transaction not based on their dealings with the
deceased are not barred. As the Court ruled: "The dead man's statute does not
operate to close the mouth of a witness as to any matter of fact coming to his
knowledge in any other way than through personal deal-
ings with the deceased person, or communication made by the deceased to the
witness." (Bordalba v. Court ofAppeals, 374 SCRA 555).
6. The survivorship disqualification rule is intended to benefit the estate of the

deceased or insane person, hence, this protection may be waived by (a) failing
to object to the testimony, or (b) cross-examining the witness on the
prohibited testimony (Santos v. Santos, 366 SCRA 395), or by (c) offering
evidence to rebut the testimony.
Comment: The survivorship disqualification rule raises legitimate questions on

the justness of the rule. In trying to avoid fictitious claims against the estate, it
ignores the rights of persons with legitimate claims and whose lips are sealed
because of a transaction conducted without any third person as witness or any
other evidence to prove the claim.
Bar 2007
True or False.
(a) The surviving parties rule bars Maria from testifying for the claimant as to
what the deceased Jose had said to her, in a claim filed by Pedro against the
estate of Jose.
Suggested answer:
(a) False. The rule bars only a party plaintiff, or his assignor or a person in
whose behalf a case is prosecuted (Section 23, Rule 130, Rules of Court).
Maria is merely a witness and is not one of those enumerated as barred from
testifying.
B — Disqualifications of Witnesses
Marital Disqualification Rule (Spousal Immunity)

1. The marital disqualification rule is provided for in Section 22 of Rule 130
and quoted hereunder:
"Section 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."
2. The rule prohibiting testimony by one spouse against the other is based on
society's intent to preserve the marriage relations and promote domestic peace.
A spouse testifying against the other creates an ugly sight inimical to society's
interests. The rule prohibiting a testimony in favor ofthe spouse is intended to
discourage the commission of perjury.
The case ofAlvarez v. Ramirez (473 SCRA 72) gives the specific reasons for the
rule, thus:
(a) There is identity of interests between husband
and wife
(b) If one were to testify for or against the other, there is a consequent danger
of perjury;
(c) The policy of the law is to guard the security and confidences of private life,
even at the risk of an occa- sional failure of justice, and to prevent domestic
disunion and unhappiness; and
(d) Where there is want of domestic tranquility there is danger of punishing one
spouse through the hos- tile testimony of the other.
3. The marital disqualification rule under Section 22 of Rule 130, forbids the
husband or the wife to testify for or against the other without the consent of the
affected spouse except in those cases authorized by the rule. The prohibition
extends not only to a testimony adverse to the spouse but
also to a testimony in favor of the spouse. It also extends to

266
EVIDENCE 
both criminal and civil cases because the rule does not distinguish.
4. In order that the husband or wife may claim the privilege, it is essential that
they be validly married. If they are not, there is no privilege (Moran,
Comments on the Rules of Court, Vol. 5,176 citing state v. Hancock, 28Nev.
300, 32, Pac. 95). The rule therefore, does not cover illicit cohabitation.
Section 22 ofRule 130 requires not only a valid marriage but the existence of
that valid marriage at the moment the witness-spouse gives the testimony.
5. The rule applies whether the witness-spouse is a party to the case or not but
the other spouse must be a party. That the other spouse must be a party is
evident from the phrase ".. .neither the husband nor the wife may testify for or
against the other...
6. The prohibited testimony is one that is given or offered during the
existence of the marriage. Section 22 explic-
itly refers to a testimony "During their marriage..." 

the rule does not prohibit a testimony for or against the other after the marriage
is dissolved. When the marriage is dissolved on the grounds provided for by
law like annulment or declaration of nullity, the rule can no longer be invoked.
One may now testify for against the other despite an objection being
interposed by the latter because there is no more marriage to speak of.
7. If the testimony for or against the other spouse is offered during the
existence of the marriage, it does not matter if the facts subject of the
testimony occurred or came to the knowledge ofthe witness-spouse 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. Nothing in
the tenor ofthe rule allows a contrary view.
To illustrate: Before the marriage of W to H, she witnessed the murder ofX by
H but she never reported what she witnessed to the authorities. A year after the
murder, H and W married. Barely six months after the marriage, W became a
"
Hence,
battered wife and to get even with H, she decided to report the murder to the
police, (a) May she testify against H over the latter's objection even ifthe
murder took place before the marriage? Answer: She cannot testify over the
objection of H. The situation is covered by the marital disqualification rule, (b)
Suppose a year after the marriage, the marriage is annulled, may W now testify
despite the objection of H? Answer: She can now testify after the marriage is
annulled. The prohibition no longer applies since the testimony is to be offered
after, not during the marriage.
8. Be it noted that the testimony is prohibited only over the objection of the
affected spouse or the spouse against whom the testimony is offered. It is the
latter spouse who has the right to object to the competency ofthe spouse-
witness. It goes without saying that the testimony is admissible where no
objection is interposed by the spouse who has the right to invoke the
prohibition. In other words, the benefit of the rule may be waived and it may be
waived impliedly or expressly.
The pronouncements ofthe Supreme Court in one case is instructive:
"x x x Under this rule, 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. However,
objections to the competency of a husband and wife to testify in a criminal
prosecution against the other may be waived as in the case of other witnesses
generally. The objection to the
competency of the spouse must be made when he or she is first offered as a

witness. In this case, the incompetency was waived by appellant's failure to
make a timely objection to the admission of his wife's testimony." (People v.
Pansensoy, 388 SCRA 669)
9. The testimony covered by the marital disqualification rule not only consists
of utterances but also the production of documents (State v. Bramlet, 114 S. C.
389, 103 S.E.
755).
268
Exceptions to the Marital Disqualification Rule

1. In the following instances, a spouse may testify for or against the other even
without the consent of the latter:
• (a) in a civil case by one against the other; or  
• (b) in a criminal case for a crime committed by one  
against the other, or the latter's direct descendants or ascendants (Section 22,
Rule 130, Rules of Court).
2. The phrase, "or the latter's direct descendants or ascendants" did not appear
in the old rules. Section 19(c) of the then Rule 130 only mentioned two
exceptions: (a) in a civil case by one against the other; or (b) in a criminal case
for a crime committed by one against the other.
The current rule has been harmonized with the Supreme Court ruling in
Ordoho v. Daquigan (62 SCRA 270), allowing the wife to testify against her
husband who was accused of raping their daughter.
In Ordoho, the Court ruled that the correct rule is the one laid down in Cargill
v. State (35 ALR 133, 220 Pac 64, 25 Okl. 314), which held that:
"The rule that the injury must amount to a physical wrong upon the person is
too narrow xxx. The better rule is that, when an offense directly attacks or
directly and vitally impairs the conjugal relations, it comes within the
exception to the statute. . .
3. If the wife sues the husband for fraudulently em- bezzling the paraphernal
funds of the former, the reason for the prohibition in the rule ceases. The wife
can now testify against the husband. A lso, if the wife is sued for adultery, the
husband cannot be barred from testifying against the wife. In a suit for
annulment of marriage, each spouse can testify against each other. The same
rule applies when the husband is sued by the wife for bigamy.
4. In order for a spouse to be allowed to testify against the other in a civil case,
the case must be a "civil case by one
"
against the other." This contemplates a situation where one spouse is a plaintiff
or petitioner and the other spouse is a defendant or respondent. Where the civil
case is between a spouse and the direct descendants or ascendants of the other,
the marital disqualification rule still applies. Thus, ifthe wife sues the father of
her husband for collection of a loan, the husband may be barred from
testifying against the wife upon the objection ofthe latter. This is because the
civil case is not by one against the other but between a spouse and the parent of
the other.
5. The rule is different in a criminal case. In a criminal case, the privilege ofone
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 like the latter's children or parents. However, crimes
committed against a spouse's collateral rela- tives like uncles, aunties, cousins
or nephews and nieces are not covered by the exception because they are
neither direct descendants nor ascendants.
Bar 2000
Vida and Romeo are legally married. Romeo is charged in court with the crime
of serious physical injuries committed against Selmo, son of V ida, step-son
of Romeo. Vida witnessed the infliction of the injuries on Selmo by Romeo.
The public prosecutor called Vida to the witness stand and offered her
testimony as eyewitness.
Counsel for Romeo objected on the ground of the marital disqualification rule
under the Rules of Court.
(a) Is the objection valid?
(b) WillyouranswerbethesameifVida'stestimo- ny is offered in a civil case for

recovery of personal property filed by Selmo against Romeo?
Suggested answers:
(a) The objection is not valid. While the rule provides that neither the husband
nor the wife may testify
for or against the other without the consent of the affected spouse, the
prohibition is merely the general rule. Said rule is subject to certain exceptions,
one of which is in a criminal case committed by one against the direct descen-
dant of the other. Romeo is accused of committing a crime against Selmo, the
son of V ida and the latter's direct descendant (Section 22, Rule 130, Rules of
Court).
(b) The answer will not be the same. The rule in a criminal case is not the same
as that in a civil case. In a civil case, for the marital disqualification rule not to
apply, the case must be by one spouse against the other. In the case under
consideration, the case is by the son (Selmo) of one spouse (V ida) against the
other spouse (Ro- meo). Romeo may thus, invoke the marital disqualification
rule against Vida's proposed testimony.
Testimony Where Spouse is Accused With Others

May a spouse testify in a trial where the spouse is a co- accused? Consider the
following illustration:
Accused-appellant was accused with parricide for the alleged killing of his own
father but was tried jointly in the murder case filed against his two other co-
accused, two brothers who were his alleged conspirators in causing the death of
his father. One of the witnesses presented by the prosecution against all the
accused was the wife of accused-appellant. May the wife testify in the
proceedings against all the accused?
In People v. Quidato, Jr. (297 SCRA 1), the Court ruled in the affirmative but
likewise held that the testimony of the wife in reference to her husband must be
disregarded since the husband timely objected thereto under the marital
disqualification rule. The Court explained that the disqualification is between
husband and wife, but the rule does not preclude the wife from testifying when
it involves other parties or accused. Hence, the wife could testify in the murder
case against the brothers who were jointly tried with the husband of the wit-
ness. The Court stressed however, 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 disqualification
rule. "What cannot be done directly cannot be done indirectly.
Testimony by the Estranged Spouse

1. Section 22 of Rule 130 prohibits a testimony by one spouse against the other
without the consent of the latter "during their marriage." Literally, this
prohibition would cover a testimony by the estranged spouse because a
separation "de facto" does not sever the marriage bonds and the spouses remain
legally married to each other. A testimony under such a situation would still
technically be a testimony "during their marriage." This literal construction of
the rule has however, been rejected by the Supreme Court.
2. Whether or not the estranged spouse may testify against the other is
illustrated by the following facts:
Susan Ramirez, the respondent is the complaining witness in a criminal case

for arson of her house against the accused Maximo Alvarez, the petitioner who
is the estranged husband of Esperanza A lvarez, the sister of the respondent and
who also lives in the house allegedly burned.
During the trial of the case, the private prosecutor called Esperanza Alvarez to
the witness stand as the first witness against her husband. Petitioner and his
counsel raised no objection. In the course of Esperanza's direct testimony
against petitioner, the latter showed "uncon- trolled emotions," prompting the
trial judge to suspend
the proceedings.
Subsequently, before the continuation of the testimony of his estranged wife,
petitioner, through counsel, filed a motion to disqualify Esperanza Alvarez
from testifying against him. The trial court issued an order dis- qualifying
Esperanza A lvarez from further testifying and
deleting her testimony from the records. The prosecution filed a motion for
reconsideration but was denied.
"
The denial prompted respondent Susan Ramirez, the complaining witness to

file with the Court of Appeals a petition for certiorari with application for
preliminary injunction and temporary restraining order. The Court of Appeals
rendered a decision nullifying and setting aside the assailed orders issued by
the trial court. In a subsequent petition for review on certiorari, the issue
sought to be resolved by the Court was whether Esperanza Alvarez can testify
against her estranged husband.
In sustaining the Court ofAppeals allowing the testimo- ofEsperanza Alvarez,

the Court explained:
" x x x like all other general rules, the marital disqualification rule has its own
exceptions, both in civil actions between the spouses and in criminal cases for
offenses committed by one against the other. Like the rule itself, the exceptions
are backed by sound reasons which, in the excepted cases, outweigh those in
support of the general rule. For instance, where 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 upon such
harmony and tranquility fails. In such a case, identity of interests disappears
and the consequent danger of perjury based on that identity is non-existent.
Likewise, in such a situation, the security and confidences of private life,
which the law aims at protecting, will be nothing but ideals, which through
their absence, merely leave a void in the unhappy home (Emphasis supplied).
"Obviously, the offense of arson attributed to petitioner, directly impairs the
conjugal relation between him and his wife Esperanza. His act, as embodied in
the In- formation for arson filed against him, eradicates all the major aspects of
marital life such as trust, confidence, respect and love by which virtues the
conjugal relationship survives and flourishes.
"As correctly observed by the Court of Appeals:
"The act of private respondent in setting fire to the house of his sister-in-law
Susan Ramirez, knowing fully well that his wife was there, and in fact with the
alleged
intent of injuring the latter, is an act totally alien to the harmony and
confidences of marital relation which the disqualification primarily seeks to
protect. The criminal act complained of had the effect of directly and vitally
im- pairing the conjugal relation. It underscored the fact, that the marital and
domestic relations between her and t.hp accused-husband have become so
strained that there is no more harmony, peace or tranquility to be preserved The
Supreme Court has held that in such a case, identity is non-existent. In such a
situation, the security and confidences of private life which the law aims to
protect are nothing but ideals which through their absence, merely leave a void
in the unhappy home. (Alvarez v. Ramirez, 473 SCRA 72 [October 14, 2005]
citing People v. Casta- heda, 271 SCRA 504; Emphasis supplied). Thus, there
is no longer any reason to apply the Marital Disqualification Rule."
"It should be stressed that as shown by the records, prior to the commission of
the offense, the relationship between petitioner and his wife was already
strained. In fact, they were separated de facto almost six months before the
incident. Indeed, the evidence and facts presented reveal that the preservation
of the marriage between petitioner and Esperanza is no longer an interest the
State aims to protect" (Alvarez v. Ramirez, supra).
Bar 2006
Leticia was estranged from her husband Paul for more than a year due to his
suspicion that she was having an affair with Manuel, their neighbor. She was
temporar- ily living with her sister in Pasig City.
For unknown reasons, the house of Leticia's sister was burned, killing the latter.
Leticia survived. She saw her husband in the vicinity during the incident. Later
he was charged with arson in an Information filed with the Regional Trial
Court, Pasig City.
During the trial, the prosecutor called Leticia to the witness stand and offered
her testimony to prove that her husband committed the arson.
273
274
EVIDENCE 
Can Leticia testify over the objection of her husband on the ground of marital
privilege?
Suggested answer:
Leticia cannot testify. Section 22, of Rule 130 bars her testimony without the
consent of the husband during the marriage. The separation of the spouses has
not oper- ated to terminate their marriage (Note: This is an answer based on the
tenor of the Rules of Court).
The following answer should also be considered:
Leticia may testify over the objection of her husband. Where the marital and
domestic relations between her and the accused-husband have become so
strained that there is no more harmony, peace or tranquility to be preserved,
there is no longer any reason to apply the Marital Disqualification Rule (People
v. Castaneda, 271 SCRA 504; Alvarez v. Ramirez, 473 SCRA 72 [October 14,
2005).
Marital Privileged Communications

1. There are two independent codal provisions which cover marital
disqualifications. The first is Section 22 of Rule 130 (Disqualification by reason
of marriage) and the second is Section 24(a) of Rule 130 (Disqualification by
reason of privi-
leged communication).
2. Under Section 24 of Rule 130 of the Rules of Court, there are certain persons
who cannot testify as to matters learned in confidence. Among those subject to
the rule are legitimate spouses. The provision states as follows:
"Section 24 Disqualification by reason of privileged

communication. — The following persons cannot testify as to
matters learned in confidence in the following cases:
(a) The husband or 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; x x x"
3. Under the provisions of Section 24(a) of Rule 130, the husband or the wife
cannot be examined without the consent of the other as to any communication
received in confidence by one from the other during the marriage.
The application of the rule requires the presence of the
following elements
(a) there must be a valid marriage between the husband and wife;
(b) there is a communication received in confidence by one from the other; and
(c) the confidential communication was received during the marriage.
4. "The law insures absolute freedom of communication between the spouses

by making it privileged x x x . 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. But one thing is
freedom of communication; quite another is a compul-
sion for each one to share what one knows with the other and this has nothing
to do with the duty of fidelity that each owes to the other" (Zulueta v. Court of
Appeals, 253 SCRA 699, Feb-
ruary 20,1996)
5. Since the application ofthe rule requires a 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 the provisions of Section 24(a) of Rule 130 but divulg-
ing the same may be objected to under Section 22 of Rule 130 upon proper
objection as long as the information is sought to be revealed during the
marriage through a testimony for or against the affected spouse. The tenor of
Section 22 of Rule
130 does not 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 Section 24(a) which explicitly
requires that the confidential information be received during
the marriage.
Note that Section 24(a) of Rule 130 also requires that the information received
in confidence during the marriage be "by one from the other." The implication
is clear: confidential information received from a third person is not covered
by the privilege.
5. 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. Without
such intention, common reason suggests that the information is not
confidential. Thus, in U.S. v. Antipolo (37 Phil. 726), the wife was allowed, in a
prosecution for murder, to testify as to her husband's dying declaration
regarding the identity of the as- sailant because there was no intent of
confidentiality in the information. The declaration is intended to be
communicated after the husband's death because it was made in the further-
ance of justice.
Communications in private between husband and wife are presumed to be

confidential (Blau v. United States, 340 U.S. 332 in McCormick on Evidence,
Third Edition, §80). A variety of factors however, may serve to rebut a claim
that confidentiality was intended. In particular, if a third person (other than a
child of the family) is present with the knowledge of the communicating
spouse, this stretches the web of confidence beyond the marital pair, and the
communication is unprivileged (Pereira v. United States, 347 U.S. 1 in Mc-
Cormick on Evidence, Third Edition, §80). If children of the family are present
this likewise deprives the conversation of protection unless the children are too
young to understand what is said (Freeman v. Freeman, 238 Mass, 150, 130 N.
E. 220 in McCormick on Evidence, Third Edition, §80).
6. The marital privilege rule, being a rule of evidence, may be waived by

failure of the claimant to object timely to its presentation or by any conduct
that may be construed as implied consent (Lacurom v. Jacoba, A.C. No. 5921,
March 10 2006).
Bar 2004
XYZ, an alien, was criminally charged of promot- ing and facilitating child
prostitution and other sexual abuses under Rep. Act No. 7610. The principal
witness against him was his Filipina wife, ABC. Earlier, she had complained
that XYZ's hotel was being used as a center for sex tourism and child
trafficking. The defense counsel for XYZ objected to the testimony of ABC at
the trial of the child prostitution case and the introduction of the affidavits she
executed against her husband as a violation of espousal confidentiality and
marital privilege rule. It turned out that DEF, the minor daughter of ABC by
her first husband who was a Filipino, was molested by X Y Z earlier. Thus,
ABC had filed for legal separation from X Y Z since last year.
May the court admit the testimony and affidavits of the wife, ABC, against her
husband XYZ, in the criminal case involving child prostitution?
Suggested answer:
If the testimony and affidavit of the wife are evidence of the case against her
husband for child prostitution involving her daughter, the evidences are
admissible. The marital privileged communication rule under Section 24 of
Rule 130 as well as the marital disqualification rule un-
der Section 22 of Rule 130 do not apply to and cannot be invoked in a criminal
case committed by a spouse against the direct descendants of the other.
A crime committed by the husband against the daughter of his wife is

considered a crime committed against the wife and directly attacks or vitally
impairs the marital relations (Ordono v. Daquigan, 62 SCRA 270).
Explanation of Distinctions Between the Marital Disqualifi- cation

Rule and the Marital Privileged Communication Rule
1. Section 24(a) of Rule 130 has reference to confidential communications
received by one spouse from the other during the marriage. The marital
disqualification rule under Section 22 of Rule 130 does not refer to confidential
communications between the spouses. It will not come into play when the fact
pattern in a problem makes reference to confidential
communications between husband and wife during the mar-
riage. Section 24(a) ofRule 130 will instead apply
However, communications that are not intended to be confidential because they

were uttered in the presence ofthird parties are not deemed confidential even
when made during the marriage, but Section 22 could apply instead of Section
24(a) when used as parts of a testimony for or against the party-spouse.
The marital privileged communication rule in Sec 24(a) applies only to

testimonies of a confidential nature received by one spouse from the other
during the marriage and obviously does not include acts merely observed by
the spouse unless such acts are intended as a means of conveying confidential
communication by one to the other.
Section 22 of Rule 130 includes facts, occurrences or information even prior
to the marriage unlike Section 24(a) which applies only to confidential
information received during the marriage. In this sense, Section 22 is broader
because it pre- vents testimony for or against the spouse on any fact and not
merely a disclosure of confidential information.
2. When the marital privileged communication rule under Section 24(a)

applies, the spouse affected by the disclosure ofthe information or testimony
may object even after the dissolution of the marriage. The privilege does not
cease just because the marriage has ended. The marital disqualification rule
under Section 22 on the other hand, can no longer be invoked once the
marriage is dissolved. It may be asserted only during the marriage.
3. The marital disqualification rule in Section 22 requires that the spouse for
or against whom the testimony is offered is a party to the action. This is not
required in the marital privileged communication rule in Section 24(a) and
applies regardless of whether the spouses are parties or not.
Note: In the marital disqualification rule in Section 22, the prohibition is a

testimony for or against the other. In Sec- tion 24(a), what is prohibited is the
examination of a spouse as to matters received in confidence by one from the
other during the marriage.
Bar 1995
Allan and Narita were married on August 1, 1989. After two months, Narita
told Allan in confidence that the 10-year old Liza whom she claimed to be her
niece was ac-
tually her daughter by a certain Basilio, a married man.
In 1992, Narita obtained a judicial decree of nullity of her marriage with A llan
on the latter's psychological incapacity to fulfill his marital obligations. When
the decree became final, Liza, assisted by Narita, filed 10 cases of rape against
Allan purportedly committed in 1991. During the trial, Narita was called to the
witness stand to testify as a witness against Allan who objected thereto on the
ground of marital disqualification.
1. As public prosecutor, how would you meet the objection?
2. Suppose Narita's testimony was offered while the decision nullifying her
marriage to Allan was pending appeal, would your answer be different?
3. Suppose Narita died during the pendency of the appeal, and soon after, the
legal wife of Basilio sued for legal separation on sexual infidelity in view of
Basilio's love affair with Narita. At the trial Allan was called by Basilio's wife
to testify that Narita confided to him (Al- lan) during their marriage that Liza
was her love child by Basilio. As counsel for Basilio, can you validly object
to the presentation of A llan as witness for the plaintiff? Explain.
Suggested answers
(1) I would ask the court to overrule the objection. Under the marital
disqualification rule, the objection to the testimony of one spouse against the
other may be invoked only during the marriage. At the time the testimony of
Narita was offered, the marriage was already dissolved. Besides, the crime was
committed against a direct descendant of Narita (Section 22, Rule 130, Rules
of Court).
(2) The answer would not be different and the court may likewise be asked to
overrule the objection. The marital disqualification rule may not be invoked in
a criminal case for a crime committed against the direct descendant of the
other spouse. Here, Liza is the daughter of Narita.
(3) Suggested answer of U.P. Law Center: Y es. I could validly object to the
presentation of A llan as a witness on the ground that the communication
ofNarita was a privileged communication which could be invoked during or
after the marriage. Moreover, the testimony of A l- lan would be hearsay.
Writer's Comment: It is submitted that the testimony could not be validly

objected upon by Basilio's counsel on the basis of the marital privileged
communication rule. Basilio does not own the privilege. The prerogative to ob-
ject to a confidential communication between spouses is vested upon the

spouses themselves, particularly the communicating spouse, not a third
person. This is clear from the provision: "...cannot be examined without the
consent of the other..." (Section 24, Rule 130, Rules of Court). The proper
objection should be on hearsay grounds, not on privileged communications.
Bar 1998
C is the child of the spouses H and W. H sued his wife for judicial declaration
of nullity of marriage under A rt. 36 of the Family Code. In the trial, the
following testified over the objection of W : C, H and D, a doctor of medicine
who used to treat W. Rule on Ws objection which are the following:
:
(a) H cannot testify against her because of the rule on marital privilege.
(b) xx (c) xx
Suggested answer:
The objection should be overruled. The rule invoked by W , i.e., the rule on
marital privilege, does not apply to a civil case by one against the other. The
suit between the spouses is a civil case against the other.
Attorney-Client Privilege
281
xx
1. The following is the applicable provision involving privileged

communications between an attorney and his client:
"Section 24. Disqualification by reason of privileged

matters learned in confidence in the follow-
ing cases 
(a) xx
: 
x
(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 attorney's secretary,
stenographer, or clerk be examined, without the consent of his
client and his employer, concerning any fact the knowledge of
which has been acquired in such capacity."
2. The following requisites must be present for the privilege to arise:
(a) There must be a communication made by the client to the attorney or an

advice given by the attorney to his client;
(b) The communication or advice must have been given in confidence; and
(c) The communication or advice must have been given either in the course
ofthe professional employment or with a view to professional employment.
3. The present rules do not require a perfected attorney-client relationship for
the privilege to exist. The communications between the attorney and the client
no longer need to be in the course of an actual professional employment. It is
enough that the communication or advice be "with a view to" professional
employment (Section 24[b], Rule 130, Rules
ofCourt). Hence, the privilege is extended to communications made for the

purpose of securing the services of counsel even if the counsel later refuses the
professional relationship. The insertion of the clause "with a view to" includes
preliminary negotiations within the privilege. Without the clause, it would
seem extremely risky to consult an attorney for the first time and communicate
to him certain sensitive information with-
out the protection of confidentiality
4. The relationship between the attorney and the client is said to exist where a
person employs the professional services of an attorney or seeks professional
guidance, even though the lawyer declines to handle the case (Keir v. State,
152 Fla, 389,11 So. [2d] 886 [1943])
5. The privilege of a client to keep communications to his attorney confidential

is predicated upon the client's belief that he is consulting a lawyer in that
capacity and has mani- fested his intention to seek professional legal advice (24
Iowa L. Rev. 538, In Note). There is authority to support the theory that it is
enough ifhe reasonably believes that the person consulted is a lawyer,
although in fact he is not as in the case of a detective pretending to be a lawyer
(People v. Barker, 60 Mich. 277, 27N.W. 539 cited in McCormick on Evidece,
§88). For the privilege to exist, payment of a fee is not essential (United States
v. Landorf, 591 F .2d 36 3d Cir. 1980).
6. 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 as required by Section 24(b) Rule 130, Rules of Court, and

ifproven to be so, would not be within the ambit of
the privilege (U.S. v. Tedder, 801 F.2d 1437 [4th Cir. 1986])
7. Accordingly, the privilege is not confined to communications regarding

actual pending cases. The communications 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 of legitimate professional relationship between the
attorney and the client (Jones on Evidence, Vol. 3, §749). The communication
may be oral or written but is deemed to extend to other forms of conduct like
physical demonstration as long as they are intended to be confidential. It is
likewise submitted that the communication between a client and his lawyer is
not deemed lacking in confidentiality solely because the communication is
transmitted by facsimile, cellular telephone, or other electronic means.
8. It is commonly acknowledged that the privilege does not extend to

communications where the client's purpose is the furtherance of a future
intended crime or fraud (8 Wigmore, Evidence, §§2298, 2299 [McNaughton
Reev. 1961]; Gardner, The Crime ofFraud Exception to the Attorney-Client
Privilege, 47 A.BA.J. 708), or for the purpose of committing a crime or a tort
(U.S. v. Wilson, 798 F.2d 509 [1st Cir. 1986] or those made
in furtherance of illicit activity (U.S. v. Aucoin, 964 F.2d 1492 [5th Cir. 1992]).
Accordingly, although communications made when used to further crimes are
not privileged, the discussion of the communications in confidence with the
lawyer after the crime has been committed may still be privileged even though
the earlier ones were not (In re Federal Grand Jury Proceed-
ings 89-10 [MIA] 938 F.2d 1578 [11th Cir. 1991])
9. Does the privilege preclude inquiries into the fact that the lawyer was
consulted? The traditional and still applicable rule is that an inquiry into the
fact of consultation or employment is not privileged. Even the identity of the
client
is not privileged as well as that ofthe lawyer is not privileged
(Behrens v. Hironimus, 170 F.2d 627 [4th Cir. 1948]; Shien- tag, J. in People v.
Warden, 270 N.Y.S., 369). However, under
.
.
284
the so-called "last link doctrine," non-privileged information, such as the

identity of the client, is protected if the revelation of such information would
necessarily reveal privileged information (In re Grand Jury Proceedings
[GJ90-2J, 946 2d 746
[11th Cir. 1991])
10. 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. Like the attorney,
their employer, these persons cannot be exam-
ined as to the communication made by the client or the advice
.
given by the attorney without the clients 
employer's consent (Section 24[b], Rule 130, Rules of Court).
11. Before the statements ofthe client and the advice of the attorney be deemed
as privileged, the same should have been intended to be confidential. This
confidentiality is the essence of the privilege. The communications between
lawyer and client do not become confidential merely from the fact that they
were made to each other. The matters communicated to the attorney are
evidently not intended to be confidential when they were made to the lawyer
but in the presence of third persons who neither stand in a position of peculiar
confidence to the client or are not agents of the attorney. If the communications
made by the client to his attorney were also made to third persons, the intention
of secrecy does not appear (McCormick on Evidence, §91). There can be no
attorney-client privilege where the information is given with the expectation
that it will be revealed to others (In re Grand Jury
Proceeding, 727 F.2d 1354 [4th Cir. 1984]). In the case of persons
overhearing without the knowledge ofthe client, it seems that the more
reasonable view is one which would protect the client against disclosure, unless
he has failed to use ordinary precautions against overhearing, but the cases in
American
jurisprudence have permitted the eavesdropper to speak (Van Horn v.

Commonwealth, 239 Ky 833, 40S.W.2d 372).
consent and also the
12. Does the privilege apply in suits between the attorney and the client? The
weight of authority supports the view that when the client and attorney become
embroiled in a controversy between themselves, as in an action filed for
payment of attorney's fees or for damages against the negligence of the
attorney, the privilege is removed from the attorney's lips (So- kol v. Mortimer,
81 ill. App.2d 225 N.E.2d 496 in McCormick,
§91). This rule however, should be made to apply only where the suit is
between the attorney and his client. The communication would still be
privileged where the suit is by or against a third party (State v. Markey, 259
Wis. 527, 49 N.W. 2d 437
[1951])
13. In relation to the attorney, the privilege is owned by the client. It is he who
can invoke the privilege. As a rule, every communication arising from the
professional relationship cannot be disclosed without his consent. The
privilege is personal and belongs to the client. If the client waives the privilege,
no one else including the attorney can invoke it (In Re Young's Estate, 33 Utah
382, 94 P 731, 732). For example, if the client is asked on cross examination of
his communications to his lawyer and reveals the same, there would be
a waiver of the confidentiality of the communication. There would also be a

waiver ifthe client does not object to his attorney's testimony on the
communication.
14. The protection of the privilege will generally survive the death of the
client (Denver Tramway Co. v. Owens, 20
.
Colo., 107,36Pac. 
P.2d 1084 [1976]). There had been cases where the privilege was not made to
apply in cases involving the validity or inter- pretation of the client's will.
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
(8 Wigmore, Evidence, §2314 [MacNaughton rev. 1961])
15. A lawyer is bound to comply with Canon 21 of the Code of Professional

Responsibility which states that "a lawyer shall preserve the confidence and
secrets of his client even
848; State v. Macumber, 1121 Ariz. 569, 544
after the attorney-client relation is terminated." The reason for the prohibition
is found in the relation of attorney and client, which 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. Such knowledge must be
considered sacred and guarded with care (Samala 512 SCRA 1; Mercado v.
Vitriolo, 459 SCRA 1).
u. Valencia,
16. A brief but exhaustive discussion of the nature of the relationship between
attorney and client and the rule on attorney-client privilege was made in
Mercado v. Vitriolo, su-
pra).
"In engaging the services of an attorney, the client reposes on him special
powers of trust and confidence. Their relationship is strictly personal and
highly confidential and fiduciary. The relation is of such delicate, exacting and
confidential nature that is required by necessity and public interest. Only by
such confidentiality and protection will a person be encouraged to repose his
confidence in an attorney. The hypothesis is that absti- nence from seeking
legal advice in a good cause is an evil which is fatal to the administration
ofjustice. Thus, the preservation and protection of that relation will encourage
a client to entrust his legal problems to an attorney, which is of paramount
importance to the administration of justice. One rule adopted to serve this
purpose is the attorney-client privilege: an attorney is to keep inviolate his
client's secrets or confidence and not to abuse them. Thus, the duty of a lawyer
to preserve his client's secrets and confidence outlasts the termination of the
attorney-client relationship, and continues even after the client's death. It is the
glory of the legal profession that its fidelity to its client can be depended 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. W ith full disclosure of the facts
of the case by the client to his attorney, adequate legal representation will result
in the ascertainment and enforcement of rights or the prosecution or defense
of the client's cause.
"Now, we go to the rule on attorney-client privilege. Dean Wigmore cites the

factors essential to establish the existence of the privilege, viz:
(1) W here 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 per- manently
protected, (7) from disclosure by himself or by the legal advisor, (8) except the
protection be waived.
"In fine, the factors are as follows:
(1) There exists an attorney-client relationship, or a prospective attorney-client

relationship, and it is by reason of this relationship that the client made the
communication.
"Matters disclosed by a prospective client to a lawyer are protected by the

rule on privileged communication even if the prospective client does not
thereafter retain the lawyer or the latter declines the employment. The reason
for this is 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.
"On the other hand, a communication from a (prospective) client to a lawyer
for some purpose other than on account of the (prospective) attorney-client
relation is not privileged. Instructive is the case of Pfleider v. Palanca, 35
SCRA 75, where the client and his wife leased to their attorney a 1,328-hectare
agricultural land for a period of ten years. In their contract, the parties agreed,
among others, that a specified portion of the lease rentals would be paid to the
client-lessors, and the remainder would be
delivered by counsel-lessee to client's listed creditors. The client alleged that
the list of creditors which he had "confidentially" supplied counsel for the
purpose of carrying out the terms of payment contained in the lease contract
was disclosed by counsel, in violation of their lawyer-client relation, to
parties whose interests are adverse to those of the client. As the client himself,
however, states, in the execution of the terms of the aforesaid lease contract be-
287
tween the parties, he furnished counsel with the "confidential" list of his
creditors. W e ruled that this indicates that client delivered the list of his
creditors to counsel not because of the professional relation then existing
between them, but on account of the lease agreement. We then held that a
violation of the confidence that accompanied the delivery of that list would
partake more of a private and civil wrong than of a breach of the fidelity owing
from
a lawyer to his client.
(2) The client made the communication in confidence.
"The mere relation of attorney and client does not raise a presumption
ofconfidentiality. The client must intend the communication to be
confidential.
"A confidential communication refers to information transmitted by voluntary

act of disclosure between attorney and client in confidence and by means
which, so far as the client is aware, discloses the 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.
"Our jurisprudence on the matter rests on quies- cent ground. Thus, a

compromise agreement prepared by a lawyer pursuant to the instruction of his
client and delivered to the opposing party, an offer and counter-offer for
settlement, or a document given by a client to his counsel not in his
professional capacity are not privileged communications, the element of
confidentiality not being present.
(3) The legal advice must be sought from the attorney in his professional
capacity. The communication made by a client to his attorney must not be
intended for mere information, but for the purpose of seeking legal advice
from his attorney as to his rights or obligations. The communication must have
been transmitted by a client to his attorney for the purpose of seeking legal
advice.
"If the client seeks an accounting service or business or personal assistance,

and not legal advice, the privilege does not attach to a communication
disclosed for such purpose" (Mercado v. Vitriolo, 459 SCRA 1).
Bar 2008
A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while
helping tow another vessel, drowning five (5) of the crew in the resulting
shipwreck. At the maritime board inquiry, the four (4) survivors testified. SPS
engaged Atty. Ely to defend against potential claims and to sue the company
owning the other vessel for damages to the tug. Ely obtained signed statements
from the survivors. He also interviewed other persons, in some instances
making memoranda. The heirs of the five (5) victims filed an action for
damages against SPS. Plain- tiffs counsel sent written interrogatories to Ely,
asking whether statements of witnesses were obtained; if written, copies were
to be furnished; if oral, the exact provisions were to be set forth in detail. Ely
refused to comply, arguing that the documents and information asked are
privileged communication. Is the contention tenable? Ex- plain.
Suggested answer:
The contention is not tenable. The documents and information sought to be

disclosed are not privileged. They are evidentiary matters which will eventually
be disclosed during the trial. What is privileged under Sec- tion 24(b) of Rule
130, is (a) the communication made by the client to the attorney, or (b) the
advice given by the attorney, in the course of, or with the view to professional
employment. The information sought is neither a communication by the client
to the attorney nor is it an advice by
the attorney to his client.
Physician-Patient Privilege
1. The privileged communication between a physician and his patient is stated

as follows in Section 24 of Rule 130:

(a) xx
x
x
(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 that capacity, and which would blacken the
reputation of the patient; x x x"
(b) xx
2. This privilege, embodied in Section 24(c) of Rule 130 applies to a civil case,
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 should be deemed more important
than the secrecy of the communication.
3. The rationale traditionally mentioned to justify the privilege is 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., 132 Neb. 831, 273 N.W. 478). Accordingly, this
privilege protects the interest of the patient. It is designed to promote health,
not truth. It encourages free disclosure in the sickroom by preventing
disclosure in the courtroom. The patient is the person to be encouraged and he
is the holder of the privilege (Metropolitan Life and Insurance Co. v. Kaufman,
104 Colo. 13, 87 P.2d 758 in McCormick, Evidence, §102).
4. The person against whom the privilege is claimed is a person duly

authorized to practice medicine, surgery or obstetrics.
The information which cannot be disclosed refers to; (a) any advice given to
the client; 
(b) any treatment given to the client; and
(c) 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; and
(d) that the information sought to be disclosed would tend to blacken the
reputation of the patient (Sec- tion 24[c], Rule 130, Rules of Court). The word
"reputation" is used instead ofthe previous word, "character."
5. Also, it is opined that the rule does not require that the relationship between
the physician and the patient be a result of a contractual relationship. It could
be the result of a quasi-contractual relationship as when the patient is seri-
ously ill and the physician threats him even if he is not in a condition to give
his consent as in the situation described in A rt. 2167 of the Civil Code of the
Philippines.
6. It is necessary for the operation ofthe privilege that the physician is acting in
his "professional capacity" and that the advice or treatment given or acquired in
such capacity. The physician may be said to be acting in a professional capacity
when he attends to the patient for either curative or preven- tive treatment
(Baird's Estate, 173 Cal., 617, 160 Pac, 1078; Smart v. Kansas City, 208 Mo.,
162, 105 S.W. 709). Hence, it is submitted that results of autopsies may not be
deemed cov-
ered by the privilege because autopsies are not intended for treatment.
7. The privilege does not apply to shield the commission of a crime or when
the purpose is an unlawful one as to obtain narcotics or prohibited drugs in
violation of law because there is no treatment involved. Similarly, where the
purpose is to ask a physician to have one's appearance disguised by cos-
metic or plastic surgery to escape apprehension, the privilege does not apply.
Common reason suggests that all these cases be deemed outside the operation
of the privilege because the purpose is not for treatment or prevention of any
disease or injury.
8. The privilege survives the death of the patient

(Bassil v. Ford Motor Co., 278 Mich. 173, 270 N.W. 258, 107 A.L.R. 1491).
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., 99 N.Y., 69 Am Rep. 1. Rep 769). Thus, in
Gonzales v. Court ofAppeals (298 SCRA 322), the Supreme Court, prevented
the disclosure of medical findings that would tend to blacken the reputation of
the patient even after his death.
9. The privilege may be waived by the patient. The waiver may be made
expressly or impliedly. The waiver may be by a contract as in medical or life
insurance. When there is disclosure by the patient of the information, there is
necessarily, a waiver. When the patient answers questions on cross on matters
which are supposedly privileged, the waiver also exists.
There could also be a waiver by operation oflaw or ofthe rules. 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 ofthe examination. By doing so, he
waives any privilege he may have in that action regarding the testimony of
every other person who has
examined him in respect of the same examination (Section Rule 28, Rules of
Court).
Bar 1998
C is the child of the spouses H and W. H sued his wife for judicial declaration
of nullity of marriage under A rt. 36 of the Family Code. In the trial, the
following testified over the objection of W: C, H and D, a doctor of medicine
who used to treat W. Rule on Ws objection which are the following:
(a) xx
(b) xx
(c) D cannot cannot testify against her because of
xx
4,
the doctrine of privileged communication.
Suggested answer:
(a) xx
(b) xx
(c) D cannot testify over the objection of W where
the subject of the testimony is the advice or treatment given by him or any
information which he may have acquired in attending to W in his professional
capacity (Sec- tion 24[c], Rule 130, Rules of Court).
Priest/Minister-Penitent Privilege
293
xx
1. Another privileged communication under the Rules is as follows:
"Section 24. Disqualification by reason of privileged communication. — The

following persons cannot testify as to matters learned in confidence in the
following cases:
xx
(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 to him in his professional character in the course of discipline
enjoined by the church to which the priest or minister or priest belongs;
xxx
2. 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
confess- ing.
The privilege also extends not only to a confession made by the penitent but
also to any advice given by the minister or priest. The confession and the
advice must have been made or given pursuant to the course of discipline of the
denomination
or sect to which the minister or priest belongs (Section 24[d], Rule 130, Rules
ofCourt). Thus, the minister or priest must be duly ordained or consecrated by
his sect.
"
3. Not every communication made to a minister or priest is privileged. The
communication must be made pur-
suant to confessions of sins (Wigmore 

clearly provided in the rule, the advice given as a result of the confession, must
be made in the minister's "professional character" (Section 24[d], Rule 130,
Rules of Court) or in his "spiritual" capacity. Accordingly, where the penitent
discussed business arrangements with the priest, the privilege does not
apply (U.S. v. Gordon, 493 F. Supp. 822 [7th Cir. 1987])
Privileged Communications to Public Officers

1. As to privileged communications to public officers, the relevant rule
declares:

xx
on Evidence, §848). As
x
(e) 
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."
2. Under the above rule, communications made to a public officer in official
confidence are privileged when the court finds that the disclosure would
adversely affect the public interest. It is 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. The privilege may be invoked not only during the term of
office of the public officer but also after (Section 24[e], Rule 130, Rules of
Court).
3. National security matters and State secrets are of course, confidential and a
court will most likely uphold the privilege. A society may not always be able to
conduct its business with total openness and matters affecting national inter-
A public officer cannot be examined during

.
est must not be divulged (Guong
Cir 1988])
295
v. U.S., 860 F.2d 1063 [Fed
4. There is also authority supporting the theory that protection must be given to
protect the identity of individu- als who provide information to the
government. Effective law enforcement often results from information
provided by citizens who do not wish to publicly involve themselves (U.S. v.
Straughter, 950 F.2d 1223 [6th Cir. 1991 ])

Executive Privilege; Presidential Communications Privilege
1. The concept of "executive privilege" and its origins
the Philippines (488 SCRA 1). As defined in relation to its Ameri- can origins,
the privilege has been described as "the power of the government to withhold
information from the public, the
courts, and the Congress." 

2. The doctrine of executive privilege found recognition
were elucidated in sufficient detail in Senate of
u. Ermita
in the 1995 case of 

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. Allud- ing to foreign jurisprudence, it was ruled 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.
3. Chavez v. PCGG (299 SCRA 744), ruled that there is a privilege against
disclosure on certain matters involving state secrets regarding the following;
(a) military; 
(b) diplomatic; and, 
(c) other national security matters.
Again, in Chavez v. Public Estates Authority (384 SCRA 152), it was similarly
held that secrets involving military, diplomatic and national security matters
and information on in-
Almonte v. Vasquez (244 SCRA 286). Here investigations of crimes by law

enforcement agencies before the prosecution of the accused were exempted
from the right to information. The right to information does not also extend to
presidential conversations, correspondences, and discussions in closed-door
cabinet meetings.
4. The 2006 case of Senate of the Philippines v. Ermita (488 SCRA 1), cited by
both the majority and dissenting opinions in subsequent cases, illustrates how
the Court resolved a constitutional question on the extent of executive privilege
in relation to inquiries in aid of legislation.
The case of Ermita is the result of consolidated petitions for certiorari and
prohibition praying for a declaration of the unconstitutionality ofExecutive
Order 464 for having been issued through a grave abuse ofpresidential
powers.
At issue was the constitutionality of Executive Order 464 issued by the

President of the Philippines for the purpose of "Ensuring Observance of the
Principle of Separation of Pow- ers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in
Legislative In- quiries in A id of Legislation under the Constitution, and for
Other Purposes.
The questioned Executive Order was issued at the height of Senate

investigations on the North Rail Project and alle- gations of fraud in the 2004
national elections involving the controversial taped conversations between the
President and a former Comelec Commissioner.
Relying on Almonte v. Vasquez (244 SCRA 286), E.O. 464 stressed that "the
rule on confidentiality based on executive privilege is fundamental to the
operation of government and rooted in the separation of powers under the
Constitution." Section 2(a) of E.O 464 considered the executive privilege to
cover all confidential and classified information between the President and the
public officers enumerated in the executive order, including:
(a) Conversation and correspondence between the President and the public
official covered by the executive order;
"
(b) Military, diplomatic and other national security matters which in the interest
of national security should not be divulged;
(c) Information between inter-government agencies prior to the conclusion of

treaties and executive agreements;
(d) Discussions in closed-door cabinet meetings; and
(e) Matters affecting national security and public order.
Section 2(b) proceeded by enumerating the following public officers also

covered by Executive Order 464:
(a) Senior officials of executive departments who in the judgment of

department heads are covered by the executive privilege;
(b) General and flag officers ofthe Armed Forces of the Philippines and such
other officers who, in the judgment of the Chief of Staff, are covered by the
executive privilege;
(c) Philippine National Police (P N P ) officers with rank of chief
superintendent or higher and such other officers who, in thejudgment ofthe
Chiefofthe PNP, are covered by the executive privilege;
(d) Senior national security officials who in the judgment of the National
Security Adviser are covered
by the executive privilege; and
(e) Such other officers as may be determined by the President.
Section 3 of E.O. 464 required that all public officials enumerated above shall
have to secure prior consent of the President prior to appearing before either
House of Congress to give effect to the purpose of the executive order.
Relying on E.O. 464 (with the exception of General Gu- dani and Col. Balutan
who were subsequently relieved from their military posts and were made to
face court martial proceedings for defying the President's executive
order),various government officials failed to appear in Senate hearings.
The Court, in resolving the issues involved, gave recognition to the power of
inquiry of congress in aid of legislation in accordance with its duly published
rules of procedure, de- scribing such power as being broad enough to cover
officials of the executive branch and co-extensive with the power to legislate. It
held that the matters which may be a proper sub-
ject of legislation and of investigation are one and because the operation of
government could be a subject of legislation, it could also be the subject of
investigation. Since Congress has the authority to inquire into the operations of
the executive branch, "it would be incongruous to hold that the power of
inquiry does not extend to executive officials who are the most familiar with
and informed on executive operations."
The Court also however, recognized that Presidential communications fall

under the protection of executive privilege. W hile the Court upheld the
doctrine of executive privilege, it found the executive order partly
constitutionally defec- tive, specifically Sees. 2(b) and 3 which required
government officials below the heads of executive departments to secure
consent from the President before appearing in congressional hearings and
investigations. The Court noted that E.O. 464 covers persons which is a misuse
of the doctrine because the privilege is to be properly invoked in relation to
specific categories of information and not to categories of persons.
W hen Congress exercises its powers of judicial inquiry, the department heads
are not exempt by the mere fact that they are department heads. Accordingly,
only one executive official may be exempted from the power of inquiry of Con-
gress — the President upon whom executive power is vested and is beyond the
reach of congress except through the power of impeachment.
The Court added that Section 1 of Executive Order 464 makes reference only
to Section 22 of A rt. VI of the Consti- tution, and in the absence of reference to
inquiries in aid of
legislation, must be construed as limited in its application to appearances of

department heads in the question hour which is contemplated in Section 22.
The requirement then to secure presidential consent under Section 1 is limited
only to appearances in the question hour, and is valid on its face. Under Sec-
tion 22 of Art. V I, the appearances of department heads in the question hour is
discretionary on their part.
Section 1 however, declared the Court, cannot be applied to appearances of

department heads in inquiries in aid of legislation and Congress is not bound
to respect the refusal of the department heads in such inquiry, unless a valid
claim of privilege is subsequently made by the President herself or by the
Executive Secretary.
The letter of Secretary Ermita to the Senate which is to be construed as an

implied claim of the privilege, was unac- companied as it is by any specific
allegation of the basis of the claim. In other words, if the executive branch
wants to claim the privilege, it must formally assert the same and state the
reasons for the claim. Certainly, according to the Court, "Con- gress has the
right to know why the executive considers the requested information
privileged." It does not suffice to merely declare that the President, or an
authorized representative, has determined that it is so. In the absence of a
specific basis
for the claim, there is no way of determining whether it falls under one of the
traditional privileges or whether it should be respected. Instead of providing
precise and certain reasons for the claim, Section 3 of E.O. 464 merely invokes
the executive order coupled with a statement that the President has not given
her consent. This emphasized the Court, severely frustrates the power of
inquiry of congress. Thus, Section 3 of E.O 464 in relation to Section 2(b) was
declared also invalid per se.
Postcript: On M arch 6, 2008, the President of the Philip- pines issued

Memorandum Circular 151 revoking Executive Order 464. The Memorandum
instructed all executive employees to abide by the Constitution, the laws and
jurisprudence
including the case of Senate v. Ermita.
5. The Constitution of the Philippines recognizes the right ofthe people to

information on matters ofpublic concern and guarantees access to official
records, and to documents, and papers pertaining to official acts, transactions,
or decisions, as well as to government research data used as basis
for policy development, subject to such limitations as may be provided by law

(Section 7, Article III [Bill of Rights], Consti- tution of the Philippines).
What matters may be disclosed in relation to the right to information on

matters of public concern?
This was actually one of the issues sought to be resolved in AKBAYAN v.

Aquino (G.R. No. 170516, July 16,2008). The petitioners in the case, a tapestry
ofvarious personalities like citizens, taxpayers, congressmen including non-
government organizations, sought via a petition for mandamus and pro-
hibition to obtain from respondents in the persons of various government
functionaries, the full text of the Japan-Philip- pines Economic Partnership
Agreement (JPEPA), informa-
tion which the government previously refused to disclose. The petitioners
assert among others, that the refusal of the government to disclose the
documents bearing on the JPEP A vio- lates their right to information on
matters of public concern, and contravenes other constitutional provisions on
transpar- ency, such as the policy of full disclosure of all transactions involving
public interest. They likewise posit that non-disclosure ofthe documents
undermines their right to effective and reasonable participation in all levels of
social, political and economic decision-making.
Respondents do not dispute that the JPEPA as an inter- national trade

agreement is a matter of public concern but they claim that a full disclosure of
matters sought by the petitioners would involve disclosure of diplomatic
negotiations which were then in progress. It is asserted by respondents that
diplomatic negotiations are covered by the doctrine ofexecutive privilege,
thus constituting an exception to the right to information and the policy offull
public disclosure.
The petitioners on the other hand admit that diplomatic negotiations are entitled
to a reasonable amount of confidentiality so as not to jeopardize the
diplomatic process but are confidential only at certain stages of the negotiating
process after which such information must be revealed to the public. The duty
to disclose allegedly arises when the negotiations have moved from the
formulation and exploratory stage to the firming up of propositions or official
recommendations.
In resolving the conflicting claims ofthe parties the Court first affirmed what it
termed "the well-established jurisprudence that neither the right to
information nor the policy of full disclosure is absolute, there being matters
which, albeit of matters of public concern or public interest, are recognized as
privileged in nature."
The Court reiterated what it held in previous cases that the information on
inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national
interest. The Court then declared that by applying the principles it had
previously adopted, the Court held that while the final text of the JPEP A may
not be left perpetually confidential since there is a need to discuss the same
before it is approved, the offers
exchanged by the parties during the negotiations continue to be privileged even

after the JPEP A is published. Disclosing these exchanges could impair the
ability of the Philippines to deal not only with Japan but with other foreign
govern- ments in future negotiations. Reminding the parties ofwhat it had
declared in Chavez v. PCGG (384 SCRA 152), that while the constitutional
right to information includes official information on on-going negotiations
before a final contract, such information does not cover recognized exceptions
like privileged information, military and diplomatic secrets and similar
matters affecting national interest. The matters falling under these exceptions
according to the Court, cannot be disclosed even if they constitute definite
propositions. Since diplomatic negotiations enjoy a presumptive privilege
against disclosure, petitioners need to sufficiently show the existence of a
public interest sufficient to overcome the privilege. The court con-
eluded with a finding that the petitioners have failed to present a "sufficient
showing of need" in their arguments.
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. The Court
also held that 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, ifit is to overcome the privilege, must show that the information
is vital, not sim-
ply for the satisfaction of its curiosity, but for its ability to effectively and
reasonably participate in social, political, and economic decision-making.
Closely related to the "presidential communications" privilege is the

deliberative process privilege recognized in the United States, which privilege
covers documents reflecting advisory opinions, recommendations and
deliberations com- prising part of a process by which governmental decisions
and policies are formulated, x x x [CJlearly, the privilege accorded to
diplomatic negotiations follows as a logical consequence from the privileged
character of the deliberative process (AK-
BAYAN v. Aquino, G.R. No. 170516, July 16, 2008).
6. An earlier case, Neri v. Senate Committees on Ac- countability of Public

Officers and Investigations (G.R. No. 180643, March 25,2008), similarly
demonstrates the extent of the right to information on matters alleged to be
ofpublic concern. Romulo Neri, the petitioner in this case, as then direc- tor of
the N E D A , was accordingly said to have discussed with the President ofthe
Philippines regarding the ZTE-NBN deal. The petitioner, upon invitation of the
respondents (Senate Committee on Accountability ofPublic Officers and
Investiga- tions, Senate Committee on Trade and Commerce, and Senate
Committee on National Defense and Security), testified on the ZTE-NBN
contract and the bribe offers in connection with the deal. W hen asked on the
details of the matters he discussed with the President after he divulged to the
latter the bribe offers, petitioner declined to disclose the details of their con-
versation invoking the privileged nature of the conversation on specifically the

following matters:
(a) Whether the President followed up the NBN project;

(b) Whether Neri was dictated upon to follow up the project; and
(c) Whether the President said to go ahead and ap- prove the project after being
told of the alleged bribe.
When called for another hearing, petitioner then sent re- grets to the Senate for
his inability to appear in the next hearing and through Secretary Ermita,
requested the respondents to dispense with the petitioner's testimony on the
ground of executive privilege. The respondents then asked petitioner to explain
why he should not be cited for contempt. Petitioner explained his side and
requested that he be furnished in ad- vance with questionnaires should the
respondents touch on new matters aside from those already asked ofhim in a
previous hearing conducted for eleven (11) straight hours. Without
responding to the petitioner's request and finding the petitioner's explanation
unsatisfactory, a contempt order was subsequently issued against the
petitioner including an order for his arrest and detention. Petitioner then
assailed the orders via a petition for certiorari with application for a temporary
restraining order in the Supreme Court after his motion to
reconsider the orders were denied.
The Court, in deciding the petition started with the premise recognizing the
power of Congress to conduct inquiries in aid of legislation, a power which
extends even to public officials. The only way for them to be exempted from
the compulsory process of Congressional subpoena is through a valid claim of
executive privilege. The Court declared it was
convinced that the communications elicited by the three (3) questions are
covered by the presidential communication privilege. Citing foreign precedents
and rulings and previous Supreme Court pronouncements, and specifically
citing the case of United States v. Nixon (418 U.S. 813), and drawing
from Nixon, In Re Sealed Case and Judicial Watch, the Court enumerated the
following elements of "presidential communi-
cations privilege; 
(a) The protected communications must relate to a
"quintessential and non-delegable presidential power.
(b) The communication must be authored or "solic- ited 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; and
(c) 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.
The Court then concluded that the communications between the petitioner and
the President fall within the privilege based on the following reasons:
"First, the communications relate to a "quintessential and non-delegable

power" of the President, i.e., the power to enter into an executive agreement
with other countries. This authority of the President to enter into executive
agreements without the concurrence of the Leg- islature has traditionally been
recognized in Philippine
jurisprudence, xx
"Second, the communications are "received" by a close advisor of the

president. Under the "operational proximity test" petitioner can be considered a
close advi-
sor, being a member of President Arroyo's cabinet, x x
"Third,
The respondent committees argued that a claim ofexecutive privilege does not
guard against a possible disclosure of
"
"
there is no adequate showing of a compelling need that would justify the

limitation of the privilege and of the unavailability of the information
elsewhere by appropriate investigating authority."
wrongdoing. The Court did not contest the argument and further declared that
the need for evidence in a pending criminal trial outweighs the President's
generalized interest in confidentiality. The argument was however, brushed
aside by the declaration that the present case does not involve a criminal
proceeding where the information sought would help in meet- ing the demands
offair administration ofcriminaljustice. The Court in the same case likewise
held that the right of Con- gress or any of its committees to obtain information
in aid of legislation cannot be equated with the people's right to public
information. The former cannot claim that every legislative inquiry is an
exercise of the people's right to information. Hence, the members of Congress
should not invoke as justifi- cation a right properly belonging to the people.
The Neri case reiterated the rule that for the claim of executive privilege to be
invoked, there must be a formal claim of the privilege, lodged by the head of
the department which has control of the matter, and that a formal and proper
claim of the privilege requires a "precise and certain reason" for preserving
confidentiality, but Congress must not require the executive to state the reasons
for the claim with such par- ticularity as to compel the disclosure ofthe
information which the privilege is meant to protect. This is a matter of respect
for a coordinate and co-equal department. It was ruled that
the letter of Secretary Ermita to the respondents satisfies the requirement.
Chief Justice Puno's dissenting opinion is of profound legal interest. In

substance, the venerable ChiefJustice opines that there must be a "sufficient
showing or demonstration of specific need" for the withheld information on the
part of the
branch of government seeking its disclosure
"Two standards must be met to show the specific need; one is evidentiary; the
other is constitutional."
xx
"In the case at bar, we cannot assess the validity of the claim of the Executive
Secretary that disclosure of
.
the withheld information may impair our diplomatic relations with the
People's Republic of China. There is but a bare assertion in the letter of
Secretary Ermita that the "context in which executive privilege is invoked is
that the information sought to be disclosed might impair our diplomatic as
well as our economic relations with the People's Republic of China." There is
absolutely no explanation offered by the Executive Secretary on how
diplomatic secrets will be exposed at the expense of our national interest if
petitioner answers the three disputed questions propounded by the respondent
Senate committees. In the Oral Argument x x x , petitioner Neri similarly failed
to explain how democratic secrets will be compromised if the three disputed
questions would reveal privileged democratic secrets. The Court cannot
engage in guesswork in
resolving this important issue."
Privileged Communications under the Rules on Electronic

Evidence
Privileged communications apply even to electronic evidence. Under Section
3, Rule 3 ofthe Rules on Electronic Evi- dence, the confidential character of a
privileged communication is not lost solely on the ground that it is in the form
of an electronic document.

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Week 7 Evidence

Distinctions Between the Best Evidence Rule and the Parol

Waiver of the Parol Evidence Rule

be sufficiently supported by evidence (Raymundo G.R. No. 171036, October

C — Authentication and Proof of Documents (Rule 132)

OBJECT AND DOCUMENTARY EVIDENCE C — Authentication and Proof of

not presumed authentic. It is therefore, incumbent upon the proponent of the

Authentication under the Rules on Electronic Evidence

2. As previously mentioned, the authentication of elec- tronic document

as documentary evidence, it must be "offered as proofof their contents" (Sec. 2,

Public and Private Documents

2. Section 19 of Rule 132 enumerates the public docu- ments, thus:

r - "Sec. 19. Classes of documents. — For the pur- pose of their

OBJECT AND DOCUMENTARY EVIDENCE C — Authentication and Proof of

' Importance of Knowing Whether a Document is Public or Private

3. It is well-settled that a document acknowledged be- fore a notary public is a

G.R. No. 169129, March 28, 2007).

"Notarized documents may be presented in evidence without further proof, the

convincing evidence as to exclude all reasonable controversy as to the falsity of

July 31, 2008, citing Mallari v. Alsol, 484 SCRA 148).

Sec. 30 of Rule 130 affirms the above principles, thus:

"Sec. 30. Proof of notarial documents. — Every in- strument duly

A.C. No. 5510, December 20, 2007).

5. Sec. 23 of Rule 130 also confirms the significance of a public document.

"Sec. 23. Public documents as evidence. — Docu- ments

(a) An official publication thereof; or

made by a secretary of the embassy or legation, consul- general, consul, vice-

2. The attestation referred to in the preceding number must "state, in substance,

"Sec. 26. Irremovability of public record. — Any public record, an

OBJECT AND DOCUMENTARY EVIDENCE C — Authentication and Proof of

Evidence of Public Record of a Private Document

(a) By the original record; or

How to Prove the Lack of Record

Proof of lack of record of a document consists of written statement signed by

(a) there has been a diligent search ofthe record;

Last Wills and Testaments

"Sec. 1. Allowance of will necessary. Conclusive as to execution.

2. Where the private document is offered in evidence as authentic, there is a

3. The manner of authenticating a document required by Sec. 20 ofRule 132,

20 must be complied with.

"Sec. 22. How genuineness of handwriting proved. — The

2. Sec.22 ofRule132doesnotrequireexperttestimony to prove the handwriting of

It may be proven by any witness who believes it to be the handwriting of a

When a document is ancient pursuant to the descriptions in Section 21 ofRule

Sec. 21 ofRule 132 is clear on this point: To quote:

"Sec. 21. When evidence of authenticity of document not

Should the said motion be granted?

tify the same.

How to Explain Alterations in a Document

Failure to do any of the above will make the document inadmissible in

How to Prove Documents in an Unofficial Language

C — Authentication and Proof of Document

Impeachment of Judicial Record

ceedings (Black's Law Dictionary,

2. Sec. 29 of Rule 132 authorizes the impeachment of any judicial record if

1358, Civil Code of the Philippines).

Nature of Testimonial or Oral Evidence

If a witness cannot perceive or even if he can perceive he cannot remember

whether it be object, demonstrative or documentary evidence, needs the

Presumption in Favor of Competence of a Witness

"Section 20. Witnesses; their qualifications. — Ex- cept as

(a) he can perceive; and in perceiving

(b) he can make known his perception to others.

ceedings (Black's Law Dictionary, 

witness in a trial or hearing shall be done xxx 

"No! I will not!" 

• (a) religious belief;  

• (b) political belief;  

• (c) interest in the outcome of the case; or  

• (d) conviction of a crime, unless otherwise provided  

If you were the judge: 

Court: 'You may." 

be warranted by the evidence was allowed (Icard 