15.

Meaning of Positive and Negative Defenses

In Philippine jurisprudence, a positive testimony normally enjoys more weight

than a negative testimony. In short, a testimony that a fact exists enjoys more
weight than a testimony that asserts that the same fact does not exist. A denial
evidence is merely a negative evidence.

Positive evidence is, as a general rule, more credible than negative evidence.
However, the reason for this rule is that the witness who testifies to a negative
may have forgotten what actually occurred, while it is impossible to remember
what never existed (Gomez v. Gomez-Samson, G.R. No. 156284, February 6,
2007).

A denial evidence is the weakest defense and can never overcome a positive
testimony particularly when it comes from the mouth of a credible witness
(People v. Mendoza, 450 SCRA 328). Evidence that is negative is self-serving in
nature and cannot attain more credibility than the testimonies of witnesses who
testify on clear and positive evidence (People v. Larranaga, supra). Denial, like
alibi is an inherently weak defense vis-a-vis positive identification (People v.
Guambor, 420 SCRA 677; People v. Guevarra, G.R. No. 182192, October 29,
2008; People v. Montesa, G.R. No. 181899, November 27, 2008)

16. Defense of Denial

Denial is a weak form of defense, particularly when it is not substantiated by

clear and convincing evidence. The defense of denial or frame-up, like alibi, has
been invariably viewed by the courts with disfavor for it can just as easily be
concocted and is a common and standard defense ploy in most prosecutions for
violation of the Dangerous Drugs Act. Accused-appellant claims that he was
framed and that the arresting officers' motive in framing him is to extort P I million
from him. This defense requires strong and convincing evidence because of the
presumption that the law enforcement agents acted in the regular performance of
their official duties (People v. Mustapa, 352 SCRA 252).

A denial is a negative evidence. It is considered by the Court to be a very weak

form of defense and can never overcome an affirmative or positive testimony
particularly when the latter comes from the mouth of a credible witness (People
v. Mendoza, 450 SCRA 328). It is negative and self-serving which cannot be
given greater weight than the testimony of credible witnesses who testified on
affirmative matters (People v. Malicsi, G.R. No. 175833, January 29, 2008).
Already beyond cavil is the evidentiary rule that mere denial does not overturn
the relative weight and probative value of an affirmative assertion. Denial is
inherently a weak defense. To be believed, it must be buttressed by strong
evidence of non-culpability; otherwise, such denial is purely self-serving and is
with no evidentiary value. Like the defense of alibi, denial crumbles in the light of
positive declarations. Denial cannot prevail over the positive identification of the
accused by the witnesses who had no ill motive to testify falsely (Tan v.
Pacuribot, A.M. No. RTJ-06-1982, December 14, 2007; Villafranca v. Pacuribot,
A.M. No. RTJ-06-1983, December 14, 2007).

17. What is factum probandum and factum probans?

(a) the fact or proposition to be established (factum probandum); and

(b) the facts or material evidencing the fact or proposition to be established

(factum probans)

(Wigmore, Principles of Judicial Proof, 5).

Stated in another way, the factum probandum is the fact to be proved; the fact
which is in issue and to which the evidence is directed. On the other hand,
factum probans is the probative or evidentiary part tending to prove the fact in
issue

18. Meaning of Admissibility of evidence

Basically, if evidence is to be admitted at court, it must be relevant, material, and

competent. To be considered relevant, it must have some reasonable tendency
to help prove or disprove some fact. It need not make the fact certain, but at least
it must tend to increase or decrease the likelihood of some fact.

Regalado:

Evidence is admissible when it is-'relevant to the issue and is not excluded by the
law or these rules

19. When is evidence admissible?

"SECTION 3. Admissibility of evidence. — Evidence is admissible when it is

relevant to the issue and is not excluded by the law or these rules."

Thus, for evidence to be admissible, two elements must concur, namely:

(a) the evidence is relevant, and

(b) the evidence is not excluded by the rules (competent).

20. Admissibility and Weight of the Evidence

The admissibility of evidence should not be confused with its probative value.
Admissibility refers to the question of whether certain pieces of evidence are to
be considered at all, while probative value refers to the question of whether the
admitted evidence proves an issue. Thus, a particular item of evidence may be
admissible, but its evidentiary weight depends on judicial evaluation within the
guidelines provided by the rules of evidence (Heirs of Lourdes Saez Sabanpan v.
Cormoposa, 408 SCRA 692). Admissibility is one thing, weight is another. To
admit evidence and not to believe it are not incompatible with each other
(Calamba Steel Center, Inc. v. Commissioner of Internal Revenue, G.R. No.
151857, April 28, 2005).

Stated in another way, the admissibility of evidence should not be equated with
the weight of the evidence. The admissibility of the evidence depends on its
relevance and competence while the weight of evidence pertains to its tendency
to convince and persuade. A particular item of evidence may be admissible but
its evidentiary weight depends on judicial evaluation with the guidelines provided
by the rules of evidence (Tating v. Marcella, G.R. No. 155208, March 27, 2007).

21. Explain the Two Axioms of admissibility

Wigmore's two axiomsof admissibility:

(a) That none but facts having rational probative value are admissible; and (b)
That all facts having rational probative value are admissible unless some specific
rule forbids them (I Wigmore, §§9-10, 289-295). The first axiom is, in substance,
the axiom of relevance while the second is the axiom of competence.

2. No evidence is admissible unless it is relevant. However, relevancy alone does

not make the evidence admissible. An item of evidence may be relevant but not
admissible. It is not admissible because although relevant, it may be
incompetent, i.e., it is excluded by law or by a particular rule or by both. Neither is
evidence admissible merely because it is competent. Although evidence is
competent, it is still inadmissible if it is not relevant. The formula for admissibility
is a simple one. To be admissible, the evidence must be both relevant and
competent.

22. When is evidence relevant?

“Relevant evidence” includes any evidence that would make the existence of a
material fact “more probable or less probable than it would be without the
evidence.”

- to prove a particular fact (factum probandum)

Regalado:
Relevant evidence is evidence having any value in reason as tending to prove
any matter provable in an action.

23. When is evidence material?

A given piece of evidence is considered material if it is offered to prove a fact that

is in dispute in a case.

Evidence is “material” if it is being offered to prove an element of a claim or

defense that needs to be established for one side or the other to prevail

Relevant – to prove factum probans

Regalado:

Material evidence is evidence directed to prove a fact in issue as determined by

the rules of substantiveTawrand pleadings

24.

a. Multiple Admissibility

There are times when a proffered evidenceis admissible for two or more
purposes. Thus, depending upon the circumstances, the declaration of a dying
person may be admissible for several purposes. It may be offered as a dying
declaration (Sec. 37, Rule 130, Rules of Court), as part of the res gestae (Sec.
42, Rule 130, Rules of Court) or as a declaration against interest (Sec. 38, Rule
130, Rules of Court). The statement by a bus driver immediately after the
collision that he dozed off in the wheel while driving may be admissible as an
admission under Sec. 26 of Rule 130 or as part of the res gestae pursuant to
Sec. 42 of Rule 130.

Sometimes it is inadmissible for one purpose but admissible for another or vice
versa. For instance, evidence of a person's bad general reputation for truth,
honesty, or integrity is objectionable if offered to prove that he committed the
crime charged but it may be admissible to impeach the credibility of a witness
under the authority of Sec. 11 of Rule 132.

Evidence may also be admissible against one party but not against another. An
extrajudicial statement of a robbery suspect is not admissible against his co-
accused under the res inter alios acta rule but may be admissible against the
declarant himself as an admission pursuant to Sec. 26 of Rule 130.

The various situations abovementioned illustrate the concept of multiple

admissibility.
If testimony is offered to prove that the project was completed pursuant to the
contract, it cannot be offered to prove that the project was delayed. It must be
remembered that the purpose for which evidence is offered must be specified
because such evidence may be admissible for several purposes under the
doctrine of multiple admissibility, or may be admissible for one purpose and not
for another, otherwise the adverse party cannot interpose the proper objection
(Uniwide Sales Realty and Resources Corporation v. Titan-Ikeda Construction
and Development Corporation, G.R. No. 126619, December 20, 2006).

b. Conditional Admissibility

It happens frequently enough that the relevance of a piece of evidence is not

apparent at the time it is offered, but the relevance of which will readily be seen
when connected to other pieces of evidence not yet offered. The proponent of
the evidence may ask that the evidence be conditionally admitted in the
meantime subject to the condition that he is going to establish its relevancy and
competency at a later time. If the connection is not shown as promised, the court
may, upon motion of the adverse party, strike out from the record the evidence
that was previously conditionally admitted.

c. Curative Admissibility

The doctrine of curative admissibility allows a party to introduce otherwise

inadmissible evidence to answer the opposing party's previous introduction of
inadmissible evidence if it would remove any unfair prejudice caused by the
admission of the earlier inadmissible evidence (Adams v. Burlington N. R.R. Co.,
865 S.W.2d 748, 751 [Mo. App. 1993]). Thus, a party who first introduces either
irrelevant or incompetent evidence into the trial cannot complain of the
subsequent admission of similar evidence from the adverse party relating to the
same subject matter (Commonwealth v. Alexander, Ky., 5 S.W.3d 104, 105
[1999] quoting Dunaway v. Commonwealth, 239 Ky 166, 39 S.W.2d 242, 243
[1931]; Smith v. Commonwealth, Ky., 904 S.W.2d 220, 222 [1995]). Conversely,
the doctrine should not be invoked where evidence was properly admitted.

25. Flight or Non-flight of the Accused

The fact that appellants never fled the locality where the crime was committed is
not by itself a valid defense against the prosecution's allegations because non-
flight does not signify innocence. Non-flight is simply inaction, which may be
due~to~several factors. It cannot be singularly considered as evidence or as a
manifestation determinative of innocence (People v. Amodia, G.R. No. 177356,
November 20, 2008). It is established in this jurisdiction that while flight indicates
guilt, non-flight does not mean innocence (Gulmatico v. People, G.R. No.
146296, October 15, 2007).
There is no law or principle holding that non-flight per se is proof, let alone
conclusive proof, of innocence. Much like the defense of alibi, the defense of
non-flight cannot prevail against the weight of positive identification of the
appellants (People v. Dacibar, 325 SCRA 725). On the other hand, flight per se is
not synonymous with guilt and must not always be attributed to one's
consciousness of guilt. Flight alone is not a reliable indicator of guilt without other
circumstances because flight alone is inherently ambiguous (Valdez v. People,
G.R. No. 170180, November 23, 2007). However, in a case where the accused
escaped from detention during the pendency of the case, flight was considered
as an indication of guilt or of his guilty mind: "x x x the wicked flee even when no
man pursues, but the righteous stand fast as bold as a lion" (People v. Isang,
G.R. No. 18307, December 4, 2008).

26. Cumulative Evidence and Corroborative Evidence

Cumulative evidence refers to evidence of the same kind and character as that
already given and that tends to prove the same proposition (Wyne v. Newman,
75 Va., 811, 817 as cited in Moran, Comments on the Rules of Court, Vol. 5,
1980, p. 3). For example, when a witness testifies that he saw the event testified
to and two other witnesses testify having seen the same event which the first
witness claimed he saw, the subsequent testimonies constitute cumulative
evidence.

Corroborative evidence is one that is supplementary to that already given tending

to strengthen or confirm it. lt is additional evidence of a different character to the
same point (Edwards v. Edwards, Tenn. App., 501 S.W. 2d 283. 289 as cited in
Black's Law Dictionary, 5th Ed., p. 311). As commonly used, the term connotes
evidence which tends to confirm, validate, or strengthen evidence already
presented. Thus, if W testifies that the gun marked as Exhibit "A" was the
weapon used in the shooting of the victim, the findings of the crime laboratory
that the gun bears only the fingerprints of the accused corroborates the testimony
of W. Corroborative evidence is usually of a different type from that previously
offered but which tends to prove the same fact. For instance, a witness claims
that he saw Mr. X sign the document subject of the action. Mr. X denies the
authenticity of his signature. Evidence by a handwriting expert that the signature
is indeed that of Mr. X is corroborative evidence. Here, we have a testimonial
evidence from an eyewitness, and a testimony from an expert who did not
personally witness the signing of the document.

Regalado:

Cumulative evidence is evidence qf-the same kind and to the same state of facts,
while/^6rroborative evidence is additional evidence of a different character to the
same_ polnt_/

27. Liberal Construction of the Rules of Evidence

Like all other provisions under the Rules of Court, the rules of evidence must be
liberally construed (Sec. 6, Rule 1, Rules of Court). Rules of Procedure are mere
tools intended to facilitate rather than to frustrate the attainment of justice. A strict
and rigid application of the rules must always be eschewed if it would subvert
their primary objective of enhancing substantial justice.

Procedural rules must be liberally interpreted and applied so as not to frustrate

substantial justice (Quiambao v. Court of Appeals, 454 SCRA 17). However, to
justify relaxation of the rules, a satisfactory explanation and a subsequent
fulfillment of the requirements have always been required (Barcenas v. Tomas,
454 SCRA 593).

The Rules on Electronic Evidence shall likewise be construed liberally (Sec. 2,

Rule 2, Rules on Electronic Evidence).

28. Absence of a Vested Right in the Rules of Evidence

There is no vested right in the rules of evidence (Ayala de Roxas v. Case, 8 Phil.
197) because the rules of evidence are subject to change by the Supreme Court
pursuant to its powers to promulgate rules concerning pleading, practice and
procedure (Sec. 5[5], Constitution of the Philippines). The change in the rules of
evidence is however, subject to the constitutional limitation on the enactment of
ex post facto laws (Art. Ill, Sec. 22, Bill of Rights, Constitution of the Philippines).
An ex post facto law includes that which alters the rules of evidence and receives
less or different testimony than that required at the time of the commission of the
offense in order to convict the accused (Mekin v. Wolfe, 2 Phil. 74).

29. Waiver of the Rules of Evidence

The rules of evidence may be waived. When an otherwise objectionable

evidence is not objected to, the evidence becomes admissible because of
waiver. For instance, while as a rule hearsay evidence is excluded and carries no
probative value, the rule admits of an exception. Where a party failed to object to
hearsay evidence, then the same is admissible (SSS Chemicals Corporation v.
Court of Appeals, G.R. No. 128538, February 28, 2001).

May the parties stipulate waiving the rules of evidence?

The Civil Code of the Philippines (Art. 6) provides that "rights may be waived,
unless the waiver is contrary to law, public order, public policy, morals, or good
customs or prejudicial to a third person with a right recognized by law." As long
as no law or principles of morality, good customs and public policy are
transgressed or no rights of third persons are violated, the rules of evidence may
be waived by the parties. However, it is submitted that a failure to object with
respect to a privileged communication involving state secrets communicated to a
public officer in official confidence should not be construed as a waiver of the
privileged character of the communication because of public policy
considerations as when the state secret is one involving national defense and
security.