When it comes to the courts, the lowest quantum of evidence that may be applied is actually

preponderance of evidence.
 because when you look at the definition of substantial evidence, you only apply that in
administrative or quasi-judicial proceedings.

In disbarment proceedings, the contention is: should it be clear and convincing evidence or
preponderance of evidence?
(foreign jurisdiction)

Explanation: Most of the states in America use clear and convincing evidence for disbarment
proceedings but then they changed to preponderance of evidence because their explanation is:
you use clear and convincing evidence only if the issue involves personal liberties.
BUT your profession as a lawyer is more like a property right.

So when it comes to property rights, the quantum of evidence is preponderance of evidence.

If you choose between clear and convincing evidence and preponderance of evidence, choose
preponderance of evidence because your profession as a lawyer is considered as a property
right.

Here in the PH, our problem is the disbarment proceeding was considered administrative because
you file it with the IBP.
But then the IBP is merely recommendatory, it would still be the Supreme Court which will have
the final say as regards the penalty whether it’s suspension or disbarment.

What’s the nature of your disbarment proceedings? Sui Generis.

The reason why it should be preponderance of evidence because it’s not really an administrative
proceeding. It is a proceeding in court.

The point in en banc decision

 the concentration of the S.C there is the use of secondary evidence in the best evidence
rule which is now our original document rule.

Judge Mac’s preference: personally, she’ll go for preponderance of evidence.

Because in substantial evidence, it is (not really prejudicial but of course if the lawyer is at fault,
then it’s okay that he will be disciplined, but if you take a look at the last statement of the
Supreme Court in a case: (balanced) there is this disciplinary function of the SC but at the same
time it has also to protect the lawyers, so dapat siguro mas mataas yung quantum of evidence na
gamitin natin for the discipline of lawyers.

So during Evid exam: use preponderance of evidence.

RMagalgalit: Negative and Positive Evidence
Positive evidence
 when the witness affirms in a stand that a certain state of facts does exist or that a certain
event happened.

Negative Evidence
 when the witness states that an event did not occur or that the state of facts alleged to
exists does not actually exist.

Judge Mac: We had a different definition of negative evidence last meeting..

If it is positive evidence, whether or not the witness would say “I saw it” or “I did not see it” for
as long as it is based on his personal knowledge, then that would be positive evidence.

In the negative evidence, when the witness would say: ahh.. “I do not know”. Lack of
knowledge, parang yung basis nya in giving a statement, it is out of his lack of knowledge.
Parang ganon yung pagkakasabi natin sa negative, diba, when we were discussing That’s why I
was asking you to give me an example of negative evidence. Do you remember that or am I the
only one who can remember that?

E.Dapilloza: Ma’am naaalala.

Judge Mac: Ok. But our problem there is we are, of course we are talking about evidence, diba.
So if it is a witness, the witness should be able to testify based on his personal knowledge. If he
will be giving a statement because he does not know, would you consider that as evidence?

E. Dapilloza: No.

Judge Mac: No? ok. So ang sabi ni Ms. Magalgalit, it is positive evidence if it is a positive
testimony meaning its an averment. Positive averment. That something happened kasjay Ms.
Magalgalit?

RMagalgalit: Yes ma’am. An affirmation.

Judge Mac: ok. It is negative if the witness would deny. If there is a denial. Correct? If I say I
saw the person stab the victim. That would be positive? Correct? If I say the accused did not stab
the victim because he was not there at that time. Would that be positive or negative?

Mr.X: Negative.
Judge Mac: Negative? Oh.. ok. Everybody says negative? Sino yung nagpositive? Nagswab ba?
So if it is an affirmation it is positive evidence? Ano yung opposite ng affirmation? What’s the
opposite?
Ms. Magalgalit: Denial.

Judge Mac: Defamation?

Mayor: Denial.

Judge Mac: Ok na tayo sa negative and positive? So that we can proceed? Ano yung sa next?

Difference between competent and credible piece of evidence. Group 7. Galing ito sa syllabus ng
2020 Bar. Because a piece of evidence may be competent, but it does not necessarily mean that it
is credible. So what is the difference between competent and credible evidence?

RMagalgalit: The difference between competent and credible piece of evidence is a competent
evidence pertains to an evidence not excluded by the rules, law, or the Constitution. While
credible piece of evidence pertains to a convincing evidence.

Judge Mac: When you say the credibility of evidence, what are we talking about? Are we
talking about admissibility or probative value of evidence or something else? Or none of the
above? At least may isang multiple choice question.

Credibility goes into the blank of evidence. A. Admissibility. B. Probative value. C. none of the
above. Answer?

FChiekwellugo: Admissibility.

Judge Mac: Why? When we talk about we only consider two things. First, is it relevant to the
issues. Second, is it competent. Is it excluded by the law or your rules. We are talking about
credibility. What do we mean by credibility?

What is credibility?

Mr. Daniwis: Credibility Judge, if I may share this definition of credible or credibility refers to
worthiness of belief or believability. That’s from Black’s law dictionary.

Judge Mac: we will adopt that one. Ano sabi?

Mr. Daniwis: Worthiness of belief or believability.

Judge Mac: The closer it is to the absolute fact, the more credible it is?

Mr. Daniwis: Yes, Judge.

Judge Mac: Ok. So, where does it fall? Does it fall under admissibility of evidence or probative
value of evidence? When we say probative value, what do we mean? Group 7? When you say a
piece of evidence has a greater probative value, what do we mean? Like you have a CCTV
footage of the incident, lets say, reckless imprudence. You have the footage from the camera sa
kalsada and then you also have an eyewitness account. As between the footage and the
eyewitness account, which one has a greater probative value?

Mr. Daniwis: The eyewitness judge.

Judge Mac: The eyewitness? Hmm. So when you say probative value, you mean?

RMagalgalit: Judge, it refers to the question of whether the admitted evidence proves an issue.

Judge Mac: ok, is that related to the credibility of evidence?

RMagalgalit: yes, judge.

Judge Mac: How? Paano? So the greater the probative value, the more credibility it has?
Kasjay? Group 7?

If a piece of evidence has a greater probative value, it is more credible. True or false?

Mr.F: True.

Judge Mac: Why?

Mr.F: Because, speaking of credibility means that the more credible your evidence is the more
that the issue of the case, the more that you prove that the issue of the case, is I mean. For
example, in a case of murder, the more credible evidence that you provide it meant that the more
you can prove that the accused really did the act.

Judge Mac: hmm. Do you believe what you just said?

Mr.F: Yes.

Judge Mac: so when you say probative value, are we referring how close that evidence in trying
to prove the matter in issue?

Mr.F: yes.

Judge Mac: so the greater the probative value, it is more credible?

Mr.F: I think so.

Judge Mac: everybody in group 7 agrees?

Ms. Magalgalit: I agree ma’am.

Judge Mac: When you say credibility it goes into the weight or probative value of evidence.
When you say competent evidence, were talking about admissibility of evidence.
We will now proceed to Part 3 – Admissibility.

Pero yung sagot ni Mr, Daniwis kanina dun sa between footage and the eyewitness account.
Take it with 1 tablespoon of salt. Ok. Bakit mo sasabihing greater ang probative value ng CCTV
footage sa eyewitness account.

Mr. D: no judge. Yung sa eyewitness ang na mention ko judge.

Judge Mac: ay paballiktad. Yung eyewitness ang probative value than the footage. Yes? Why?
Let’s keep that in mind because we will be talking about that when we go to documentary
evidence kasi ang footage natin that is already documentary evidence. Yung sa CCTV cameras
those are your passive witnesses.

Ok, lets go to admissibility of evidence. We are just going through the questions that were given
to you.

What is admissibility of evidence? Diba nasa Rule 128 parin yan. And what are the kinds of
admissibility? We have three.

RMagalgalit: Judge, the first one is the multiple admissibility of evidence. The second one is the
conditional admissibility of evidence, and the third one is the curative admissibility of evidence.

Judge Mac: Good. Let’s talk about them one by one. When you say multiple admissibility, we
mean?

RMagalgalit: the evidence is reeleveant and competent for two or more purposes.

Judge Mac: ok, can you give me an example.

Mr. F: an example ma’am is in a crime of illegal recruitment and then estafa, you could actually
use both evidences to prove that the other party committed and at the same time committed
illegal recruitment. An example is a certificate that coming from POEA that that person does not
possess the authrority to recruit workers for oversees employment.

Judge Mac: Agree? So, do we say evidences?

Students: Pieces of evidence.

Judge Mac: acceptable na ba ngayon ang evidences? Parang shoeses.

Ok. So your example is certification from the POEA that the accused is not licensed ganun?

Mr.F: the accused is not authorized.

Judge Mac: to recruit?

Mr.F: Yes, ma’am

Judge Mac: and you can use that pievce of evidence for two or more purposes. So that pieve of
evidence can be admitted by the court for two or more puroposes. Ok. the example you gave me
is one for estafa and one for illegal recruitment. If y ou are going to present the certification it wil
be for the purpose that the accused has no authroiry to recrtuit. Tama?

Mr.F: Yes maam.

Judge Mac: Yes, if you present it in your estafa case that will be the purpose.

Judge Mac: So, if you present it in your estafa case, that would be the purpose. So that the
document will be admitted for that purpose to prove that the accused is not authorized. When
you present that also in your illegal recruitment case, it is for the same purpose. It is to prove that
the accused is not authorized. So, that document is being offered for one purpose only but in two
proceedings. Yes?

So pag multiple admissibility, you have one piece of evidence, but you are going to present it for
two or more purposes. The importance of knowing the concept of multiple admissibility is even
if a piece of evidence is not admitted for one of the purposes for which you offered it, it may still
be admitted for the other purpose. Parang ganun.

Give an example.

Mr. D: I have one ma’am example here. Sabi nya kasi dito multiple admissibility may mean the
evidence is admissible for several purposes as mentioned by judge. And, an evidence is not
admissible for one purpose but may admitted for different purposes if it satisfies all the
requirements of the other purpose. An example here is a knife may be admitted to prove the
accused was armed with a deadly weapon to prove the weapon is far deadlier than the weapon of
the victim. To prove it was the weapon of the accused which caused the wounds and not some
other instrument. To corroborate the statement of the witness who claims he saw the accused
holding a deadly instrument. That’s the example ma’am. That’s the example of the first concept.
And the second concept provided here ma’am is.. the extrajudicial of confession of one of
several accused may not be admitted to prove there was conspiracy among them or to prove the
guilt of the other co -accused but it may be admitted to prove the guilt of the confessant. The
statement of the victim may not be admitted as a dying declaration but part of the res gestae.

Judge Mac: Yes nasa res gestae na tayo. Patapos na tayo ah. Nasa testimonial evidence na tayo.
Tama? Did we understand the example? No daw. Sige, explain mo. We have a knife. Correct?
Ok. So, your honor… its an object evidence so if we offer object evidence after you have
presented all your witnesses, when your about to rest your case, so your honor we’re offering
exhibit 11 or exhibit F, the knife. To prove the following: number one that the accused was in
possession of the knife. Diba? Yes? So the first purpose is to prove that the accused had a knife
at the time of the incident. The second purpose is to prove that the knife of the accused is
deadlier than the knife of the victim. So siguro, if the knife of the accused is this long while of
the knife of the victim is this short, yun. So, to prove yung comparison. So that’s another
purpose. And then, yung last purpose nya is, ano yun? That it was the knife that caused the or
that was used to inflict the injury. Ok. So, three purposes. One piece of evidence only. Ok?
So, if ever the knife will be excluded for purpose one it may still be admitted for purposes 2 and
3. Diba? Tama? Yun yung dalawang concept nag combine. Like, if you have the testimony of a
person of the accused who was arrested without a valid warrant. And, after he was arrested the
apprehending officer found an unlicensed firearm in his possession. So, if the accused will
testify. After ma arraign sya, he will testify. That at the time he was arrested there was no valid
warrant and it is not valid warrantless arrest. Ok? That testimony may be used to prove what?
Two purposes. Or that testimony may be offered for two purposes. First one to prove that he was
unlawfully arrested. Yes? Sasabihin ni akusado, I was just standing outside 7-11 with one hand
in my pocket and one hand holding ano yung ice cream sa 7-11, namimiss nyo na ba yun? Anong
namimiss nyo sa UC? Sa vendo machine? Ha?

Mr. D: Attorney, yung coffee

Judge Mac: ay yung coffee. Ah ok. Palitan natin yung story, Andun ka sa UC. You were just
standing beside the vending machine one hand in your pocket and one hand holding a cup of
coffee. Diba? Hindi sa vending maching dun sa canteen? Ah ok. Suddenly you were approached
by a police officer and you were arrested. Ganun lang. you were just in possession of a
handsome face. No probable cause of a warrantless arrest. So that was your or testimony of the
accused. You offer that to prove there was an unlawful arrest. And then, you also offer the
testimony to prove that sicnce you were unlawfully arrested, the firearm that was ceased from
you is what? Sige nga, tignan ko nga.
You remember our discussion sa poisonous tree and fruit of the poisonous tree. I can offer the
testimony of the accused as to his unlawful arrest to seek the exclusion of the firearm that was
ceased from him. Because it is… is it a tree or is it a fruit? Dapat may ano tayo may buzzer tayo.
A person is unlawfully arrested and then they got a firearm from his, san nilalagay ang firearm?
Ok. Is the gun a tree or a fruit?
Ms. M: it’s a fruit, ma’am
Judge Mac: It’s a fruit? Where is the tree?
Mr. X: The illegal search.
Ms. M: yung illegal arrest nya yung tree.
Ma’am: Tama ba? Yes? Tama ba?
Mr. X: I think.
Ma’am: Sana may ano din tayo. Ano yung tinuro sa amin sa seminar. Mentimeter(?). pero that is
too technical for me. Is it a fruit or a tree? The gun? The gun is a fruit? Ay no. the gun is a tree?
Mr. D: Judge, I think, the gun is the, wait lang Judge.
Judge Mac: tinanong mo pa to last meeting ha. Pag di mo nakuha eto, ikikick out kita sa
meeting. Ok pala yun na threat sa online ano?
Mr.D: it was defined the poisonous tree is the evidence ceased on an illegal arrsest. That is the
poisonous tree. Since person A was illegally arrested, the example mentioned earlier. Since the
discovery of the gun is the result of the illegal arrest thus the gun is, since it is the illegal arrest is
the poisonous tree.
Judge Mac: paano magpatalsik mayor? Wait. When you talk about a poisonous tree and the fruit
of the poisonous tree we are talking about pieces of evidence. Pieces of evidence. You present
the illegal search or unlawful arrest as evidence? Do you?
Mr. X: No.

Judge Mac: No diba? Paano mo iprepresent yung search as evidence. Yung evidence mo dun is
the gun diba? So what is it? Tree or fruit? It is the tree. Ahh… it’s the tree.
And then, if the police officer will know ask. So now there is a gun that was ceased from the
accused. And then if the police officer will ask and the accused will say, meron pang kasama
yan, kinuha ko yan sa kaibigan ko. Ok? Nag titinda sya ng maraming klaseng baril. So now there
is a statement coming from the accused. Yes? Which was based on the gun which was recovered
from him. So now we have two pieces of evidence. You have the gun. You have the statement.
Ok? If you say that the gun is the tree, what will you call the statement?

Ms. M: it will probably be the fruit of the poisonous tree, ma’am.

Judge Mac: OK it will probably be the fruit. Why? It is the derived from the gun. Tama? That
statement would not have been made by the accused had the gun have not been found. Correct?
The gun there is the tree. The statement is the fruit. Since the gun is poisonous because it was
obtained with the violation of the right of the accused. Then the statement will also be tainted. If
the gun is not admissible, what’s the basis of the inadmissibility of the gun? The exclusionary
rule. Yes? If the statement is not admissible that would be based on the doctrine of the fruit of
the poisonous tree. kaya yung doctrine of the poisonous tree and fruit of the poisonous tree. Gets
natin?

So, balik tayo sa dun sating example on multiple admissibility. If the accused has already been
arraigned, the testimony as to the illegality of his arrest, it would no longer be admissible. Tama?
Why? Because there is already a waiver when you let the accused be arraigned. Diba? Diba you
can no longer the validity of the arrest if the accused has already been arraigned? Tama ba? Pa
on tayo ng camera. Inaantok na ako. So that testimony will no longer be relevant to the issue as
to whether or not the accused was unlawfully arrested. Because it is no loinger an issue, kasi
tapos na nga ang arraignment. But you can still offer that in evidence kasi usually, the defense
would present evidence to prove the illegality of his arrest after the arraingment, the prosecution
would object. There has already been a waiver because the accused has already been arraigned.
But, that testimony may also be offered for what purpose? To exclude the evidence that was
unlawfully obtained by reason of the unlawful arrest. So in our example, we have the gun.
Although, we can no longer use the testimony of the accused to prove or question the legality of
his arrest. Why do we raise the illegality of the arrest of the accused? For purposes of quashing
the information sana. But since there is already an arraignment you can no longer quash the
information. But you can still offer that testimony to exclude the gun in evidence for being the
poisoned tree. Although the testimony of the accused may no longer be admitted to prove
something which has been waived, it may still be admitted to prove that the gun is not admissible
in evidence. Ok?

Conditional admissibility. Conditional admissibility is when the piece of evidence is admitted

but upon the happening of a certain condition. Diba? Or a certain event. Yun ba yung definition
ng condition? Like for example, you have a deed of sale and it was offered by the prosecution.
Then the defense lawyer would object. Bakit? According to them the deed of sale is spurious. It
does not indicate the true consideration. It was not notarized properly parang ganun. There is an
objection as to the admissibility of the deed of sale. What I usually do is pag isang side pa kasi
ang naririnig mo, it is only the prosecution which has presented its evidence we would really not
know if it is spurious or not. It is up to the defense to prove that it is spurious. So, subject to
proof later on that that document is not true. The document may in the meantime be admitted in
evidence. There is a condition. If that condition is not met, then the evidence will not be
considered by the court.
Like yung sa case ng reckless imprudence for example, we have the driver who ran over a
pedestrian. Tao ang pedestrian diba? Nasasgasaan nya yung pedestrian while that person was
crossing. And then the prosecution. So it is the accused who is in the witness stand and the
prosecutor will ask, “can you tell me the color of my tie?”. That’s the question. Si defense
lawyer, ano naman kinalaman ng kulay ng tie sa pagkabanga ng tao. Correct? So, objection your
honor, the question is irrelevant. The prosecutor will say, “we will show the relevance.” Sa court
ko, di ko naman alam ipapakita yung relevance, I will usually say “I will give you 5 questions. If
after asking the 5 questions, I do not yet see the relevance then we will expunge thost statements
from the record”. So, on the condition that the prosecutiob will be able to prove the relevance,
the testimony will be allowed by the court. If after 5 qustions, di mo parin makita yung
connections. Then you can expunge that line of questioning from the record. Yung sa kulay kasi,
the prosection was trying to prove the accused is color blind. May relevance naman. But of
course, as a judge, even if you know that kasi nahuhulaan mo na eh. When you become lawyers
dapat parang chess player na kayo. You can anticipate 10, 20 moves. Diba dapat ganun ang
lawyers. So ikaw na judge, dapat ganun ka din. You know the point that he is tring to prove but
you can not use that in rendering a judgment. Yun yung conditional admissibility natin.
And the last one is the curative admissibility.

Mr. D: Question Judge. In that instance Judge, yung kanina Ma’am in the example you have
provided. You know the lawyer is trying to point out something but, through his questioning, he
can not get the idea. But, in your mind as a judge, you know what he is trying to point out but
during his questioning, it does not appear. He can not really get the point himself asking the
questions. But in your end, you know his point. So in that instance Judge, would you, in your
mind “ah ok nagegets ko na. his point”. Will you consider that in your decision if it was not
shown in the questioning?

Judge Mac: First, ok. If based on that alone, yung he was not able to elicit the information that
he wants from the witness. Of course , the judge can not take judicial notice of whatever is in his
or her mind. So it has to come out to be placed on record. What we usually do is we ask
questions. There is the border between clarificatory questions from question that would already
be prosecturial in nature. Yun yung. Dati, a judge is just a passive observer of the proceedings. If
the lawyer can not bring out the point that he wants to be brought out. Walang magagawa si
Judge, but now, judges should be pro-active. Yun ang sabi ng Supreme Court. Why?
Mahihirapan ka din magdecide if you don’t have the facts before you. So you can ask
calificatory questions but you should know when to stop. So pagnapalabas mo na yung point na
gusto ipalabas ng lawyer. Magstop ka na. Don’t proceed with your questioning to the point that
you will already be siding with one of the parties.
We can not take judicial notice pag nagstop yung questioning dun. The witness was not able to
bring out the point that the lawyer was intending to bring out, the judge should give a
supplemental question to bring out the point. But up to a certain extent only for purposes of
clarification. Ok? Walang judicial notice duon. Ok. Two minutes nalang.

Curative admissibility. You admit a piece of evidence to cure something. What are you going to
cure? It’s the admission of an inadmissible evidence. Ok? So if it so happened that a piece of
evidence which should have been objected to for being inadmissible was admitted. Then the
other party may be allowed to present a piece of evidence which should also be inadmissible, but
you allow it to cure the defect. Diba? Just to counter the effect of the admission of a piece of
inadmissible evidence. Paano daw yun?
Kunwari, the accused or the witness is on the witness stand and he keeps on giving hearsay
statements. Objct ng object si lawyer pero si Judge eh overruled lahat. Kasi ang alam lang ni
judge eh overruled. Di nya alam yung opposite ng overruled. Ano opposite ng overruled?
Sustained.

So pag ang feel kunwari on that day is to say overruled. Objection. Overruled. Objection.
Overruled. Your honor we’re entering a continuing objection on this line of questioning.
Everything that he is saying is hearsay. Diba? He is incompetent. Overruled kunan jay Judge. Ay
apo. If it turns out that the testimony is really hearsay, si judge pagbabasahin ng TSN ng
Supreme Court. Ano ba naman si Judge. Nag admit sya ng hearsay evidence. So, under the
concept of curative admissibility, since the court allowed that the admission of that hearsay
evidence, it should also allow the adverse party to present kahit hearsay evidence then just to
counter the effect of the hearsay evidence that was already introduced. We see that in our rules of
court. Sabi natin justice is blind. Why? It does not see the character of the accused. Yes. It does
not base its decision on the character of the accused unless the character is made an issue.
Kunwarid adultery. The prosecution can not present evidence to prove that the wife really has a
propensity for men other that her husband. You should object to that if they will present dancer1
dance2 dancer3 all from samurai. Ok. Pag ang purpose daw is to prove that the accused is really
into dating men other than her husband. You do not allow that because it goes int other character,
but if the accused will testify that she does not go out on dates with other men. Now she is
opening the door . she herself is introducing evidences as to her character which should normally
be inadmissible. Since that piece of evidence was already introduced into the record then the
prosecution should be given the chance to rebut that evidence on character by presenting
dancer1, dancer2 ,dancer 3. Just to disprove the allegation of the accused na she does not go out
with other men yun yung curative natin.
Now, there are 3 schools of thought when it comes to curative admissibility of evidence. You
have your English. English ba yun? You have your American then there is the Massachusetts.
Sino nakabasa nun? Magkapareho yung English at tsaka Massachusetts and then yung American
magkaiba. Yung American yata, I will try to see later but the concept yata sa American is there
should be a timely objection to the presentation of the inadmissible evidence. If there was no
objection then you will not be allowed to present inadmissible evidence just to rebut that
inadmissible evidence that was already admitted. Diba? That’s why it is, by the way etong
curative admissibility natin is fighting fire with fire. You are fighting an inadmissbke evidence
with another piece of inadmissible evidence. Ok? So, it is also called opening the door to the
admission of inadmissible evidence.
The rationale behind the American school of thought as regards the curative admissibility of
evidence is that eto yung there should be an objection in order for the party to present
inadmissible evidence. That should be a condition otherwise, the adverse party might take the
opportunity to introduce inadmissible evidence. He will just let the inadmissible evidence to be
admitted on record because he also has this hearsay evidence that he wants to be introduced.
Tatahimik lang siya. And then once the inadmissible evidence is admitted by the court, then it
opens the door for him to introduce his inadmissible evidence. Ok? So para maiwasan yun. Sabi
ng American rule natin on curative admissibility, there has to be an objection. Pag naoverrule
yung objection, wala ng choice si adverse lawyer kung hindi ipresent din yung inadmissible
evidence nya.

Yung sa English at tsaka Massachusetts na parang pareho, whether or notthere is an objection,

the inadmissible evidence may be presented for as long as a piece of inadmissible evidence has
been previously allowed by court. Yun yung curative natin. Ok?
Kunwari naintindihan natin. Tama? Dun tayo magstop kasi may nag knoknock na may isang
zoom sa remedial review ko.