Evidence Notes Final 1

Evidence
- a tool used for ascertaining the truth of the matter of fact in a judicial proceedings
- not limited in court trials. ALL proceedings which are quasi-judicial in nature (even admin
proceedings)
*facts arises from pleadings filed in court or complaint
*issues arises when there is denial by the adverse party
2 Kinds of Facts
1. Factum Probandum- Ultimate facts (facts sought to be established)
2. Factum Probands- evidentiary facts which establishes fact sought to be proved
Example:
Crime of robbery (unlawful taking with intent to gain and with force)
FP:
FPs: facts that there was unlawful taking with intent to gain and with force
How? Testimonial evidence (who saw the act committed, regarding factual matters or
confession by co-accused), documentary, things or object recovered
2 Principal problem encountered
1. Which piece of evidence is admissible
2. How to present it in a manner that it will be admitted once it is offered
*Is evidence synonymous with proof? No.
E: facts which tends to convince
P: Convinces
Therefore, without evidence there will be no proof. There may be evidence that will not amount to
proof.
WKOH (Evidence Notes)

Types of Evidence
I. Direct/ Positive
- proves a proposition without relying on any interference
- if shown to be true, is conclusive
II. Indirect/ Circumstantial
*facts must be proved by the quantum of evidence and produce a belief that the accused is guilty of
the crime for which he is charged
Material Evidence- prove the facts as you claim it
Relevant Evidence- *book* (always consider: what is the issue?)
Example:
Real Property Tax Payment Receipt- NOT a proof of ownership but can be used as a basis to
ascertain the intent to retain property to avoid forfeiture die to non-payment of tax.
Birth Certificate
Murder: irrelevant and immaterial (issue is death)
InfanticideL Relevant. Proves relationship and age
Competent Evidence- no rule or law that prohibits the evidence to be presented
Admissibility of evidence: Relevant + Competent
Exclusion
> Hearsay- merely heared/ communicated to the other
- NOT allowed, no evidentiary value because witness has no personal knowledge
> Marital Disqualification-in order to preserve harmony of marriage
> Unreasonable searches and seizure

Corroborative v Cumulative
- both are additional evidence
Co: Different kind and character tending to prove the same point
Cu: same stale of facts
3 Kinds of Evidence
1. testimonial
2. documentary
3. Object
Admissibility- answers the question won the piece of evidence is allowed or not
3 classes of admissibility
1. multiple admissibility- can be used for 2 or more purposes or fact (death certificate: establishes
death, cause of death)
(extrajudicial confession: cannot be used against co-accused unless there must be showing that there
is privity of relationship by reason of conspiracy// can be used as a circumstantial evidence- has
knowledge or consented to the crime)
2. Conditional- by reason of necessity (in order not to delay and let the case proceed)
Example: actionable document. Presented a photocopy of the contract. Opposing counsel interposed
that it is not the best evidence rule since it is merely a copy.
When the inquiry goes into the content of the document, the rule says there will be no evidence that
will be admitted to prove the content of the document except the original document. Judge said the
copy is inadmissible since it was objected based on a valid ground.
Remedy: request that the evidence be conditionally admitted on the premise that you will present
another evidence/witness with personal that will prove the loss of the document. – the court will
rule: admitted conditionally- (can be found under the rule of secondary evidence)
- condition must be complied with before you rest your case. Otherwise, it will be stricken off.

*what happens if you failed to show condition or promise. What must the opposing counsel do?
- have the evidence be stricken off the record
-inadmissible because the counsel failed to comply with his undertaking.
*what if the opposing party forgot about the conditional evidence or failed to oppose. Admissible?
- no.
3. Curative Admissibility- there was an evidence which is improper/inadmissible but the court
erroneously allowed it.
- the adverse party who objected to it will be allowed to present an evidence that is also irrelevant to
cure the defect of the other irrelevant evidence that has been presented by the other party which the
court allowed.
- admitted to cure an evidence which was improperly admitted/ erroneously admitted.
- Example: case of collection of sum of money where the witness testified as that he notoriously fails
to pay the money to his various creditors
> objection: evidence is irrelevant (various creditors not the creditor in the party)
> court overruled
> counsel will counteract the irrelevant evidence.
Purpose: not only to rectify and let the record be stricken off to correct the mistake but also to in
order to prevent such piece of evidence that might influence and prejudice the mind of the Court .
Relevancy of an evidence- piece of evidence tends to prove or disprove the proposition which is the
issue of the case
2 Concepts (relevant because it is)
1. Materiality
- Important/Necessary to prove the issue of the case
2. Probativeness
- piece of evidence is capable and can establish the fact which is sought to be proved
-Probativeness/ provative value of the piece of evidence
Example: Case of rape

> accused presented by way of defense the “sweetheart defense” (accused would be testifying or
showing proof consisting of pictures which depict the intimacy between him and the victim including
love letters to show the intimate relationship between the rape victim and the accused).
- by logic, those pictures or letters showing intimacy would negate sexual intercourse through force,
threat and intimidation. May not directly prove the issue of the case BUT can be introduced in evidence
to deny and defeat such accusation because of the relationship that if ever sexual intercourse took
place, it was by reason of mutual consent.
*Relevancy has different decrees and can be measured by the inference which we can derive
therefrom.
“it varies on decree of relevancy”
- piece of evidence may have a great relevancy but it is less in the sense that the inference upon which
we can derive from does not amount to a great certainty of the fact in issue
Example:
*witness testified that the victim is 2 meters away from the farm of the victim
- testimony is relevant because it places the accused within the scene of the crime. (opportunity- that
he has something to do with the killing)
Vs
* testimony of another witness that he testified that the accused is 50 meters away from the scene of
the crime
- the nearer has greater relevancy (logic and reason)
Section 129
*Evidence is only necessary when there is dispute- when there is an allegation on one hand and denial
on the other hand.
If admission- it is deemed admitted and established. No need of evidence anymore. Matters of fact
which are deemed admitted and established need not be proved anymore.
*allege what you can prove. (do not allege if you cannot prove). Allegation is NOT evidence.
* Rule: every fact that is relevant to the case must be supported by evidence or proof must be
introduced.

3 types of facts which need NOT to be proven (because deemed established/proven as if evidence has
been presented to support the same)—Substitute to evidence
1. matters of facts which can be taken by judicial notice-
- matters which are well-known to the general public and established are deemed to have been
established as if evidence has been presented and proven
- to expedite the presentation of evidence and avoid unnecessary expenses on matters which
is already beyond dispute
Example: original of title of deeds is destroyed due to fire in the provincial Capitol (Register of
Deeds). Legal remedy: reconstitution of title. File a petition for reconstitution based on the
duplicate copy of title. During the presentation of evidence you have to prove the fact of loss.
*the court will take judicial notice*-- no need to present evidence. Established as if you
presented evidence.
- Classification
1. Mandatory- judge has no discretion. He has to allow and admit the evidence. (see
book re matters)
>law of nature ( e.g.: sun rises in the east, there are 24 hours a day, days
follows the night)
h >matters which are beyond question or no longer disputable
2. Discretionary- may or may not be allowed by the Court. Court is given discretion
depending upon the wisdom of the court.
Matters:
a. of public knowledge- notorious or well known by a great number of persons.

Matters that is universally known to a great number of persons.
(example: that rape can be committed in place where people meet like in the
park or the roadside or in the school premises)
Test: whether it is well known or notoriously known to a great number of

person and whether it would be safe to assume the existence without
requiring proof.
b. capable of unquestionable demonstration- can be easily verified or

established by sources that are accurate and true.
(example: time of sunrise at a particular day)—professional or scientific

knowledge. Or exchange or dollar rate 5 years ago.

May the court take judicial notice that a person is a part of the Philippine Bar?
Yes. Can easily be verified by the Supreme Court.
c. known to judges because of their judicial functions- all maters which has to
do with its being member of the judiciary is presumed to know the law.
*Is a personal knowledge be considered as judicial knowledge? No.
*Judge saw a person shot. Can that knowledge that the judge had seen
personally be considered as evidence by way of judicial notice? Personal
knowledge of judge could not supplement the evidence which was not
presented in court during the trial.
Any matter that has not been offered in evidence cannot be admitted on the
basis that the judge has personal knowledge on the matter.
- When judicial notice can be made/ invoked:
*during trial
*after trial but before judgement
* even if already on appeal but before finality of judgement on appeal
- if upon initiative of the court, the latter must announce it to the parties to give a
chance to be heard and to object
2. which were judicially admitted
“admission”- an acknowledgement of existence or truth of the fact in dispute material to the

issue. A statement of facts which do not directly involve an acknowledgement of guilt.
admission v confession: confession is an acknowledgement of guilt. In admission, there is

merely an acknowledgement of fact as true but there is no acknowledgement of guilt.
*in what form? The law does not specify as to what form. Therefore, it may be verbal (example
in the course of trial) or written (example submitted by the parties during the pre trial). May
also be in a written document such as admissions contained in the depositions, written
interrogatories, answers made or request for admission (modes of discovery).
Different kinds of admission:
1. Judicial- pleadings (complaint, answer, counter-claim, bill of particulars, pre-trial

brief, those taken up in the pre trial stage etc.) filed in the court and made during or in
the course of trial. Documents submitted to the court.
- need no proof. The fact that it has been admitted, fact is deemed established.

2. Extrajudicial- those made outside of the court. An admission made before an office
other than the court. Example: during the admission during the investigation made by
the office of police or prosecution’s office.
-Or made in another case pending before another sala other than the case which is
being tried
Importance of difference: in judicial, it is considered as conclusive upon the one who made
such admission. You will not be allowed to deny it later now will you be allowed to introduce
evidence contradicting what you admitted. Proof is no longer necessary.
In an extrajudicial admission, it is disputable. Meaning, in the absence of any contrary evidence,

such admission will stand but the party is not precluded from introducing contradictory
evidence.
Example: admission which was given in the course of investigation of the police officer. Since
the admission is extrajudicial, the accused can introduce evidence contradicting his
extrajudicial evidence. (by reason of intimidation, violence or force)
*Nature of admission in superseded proceedings
- erased
*do you hold any use for the pleading which has already been superseded?
- considered as extrajudicial admission
*Counsel advised to plead guilty. Accused pleaded guilty but realized that hi wants to change
his plea. Will the plea of guilty be used against the accused? (law allows to change plea
during trial)
- No. Because it is allowed by law and cannot be used as evidence. (crim)
BUT (in civil) may still be used as evidence against the one who make such admission.
Civ Pro: parties are now allowed to stipulate of facts. (same as criminal procedure under the
new rules). In order to abbreviate, expedite the presentation of evidence. Only matters denied
are the one to be tried.
*Can the prosecution/ adverse counsel say to the court the testimony that will be made by a
witness?
- No. denial of the accused to confront his accuser

*testimony in one case be introduced in another without presenting the person who testified
in one case?
- Yes.
3. legal presumptions under Rule 131-
example: public officers are presumed to have performed their duty in accordance with the
rule. Because the law itself says so that a public officer performs his functions regularly.
3 Kinds of Evidence
1. Testimonial- given by word of mouth. usually through a witness by question and answer
2. Documentary- in a form of document instrument or written piece of evidence which is

presented to the court
3. Object/ Real/ Physical- things addressed to the senses of the court.
1. Object Evidence
- may consist of an object, solid or liquid, tangible .
- very same thing that has taken the role in the case which is the subject of litigation
Demonstrative Evidence- presented for the appreciation of the court with the use of
his senses. The difference is that a real evidence is an object which has performed a
role in a case subject matter of litigation.
- it suggests that the object/evidence has for its purpose only to illustrate or to be used
as a model to give the court the idea to supplement the testimony of the witness
- no need to authenticate
*Example: Bolo with stain of blood that matches the blood type of diseased (Object
evidence- there is only 1 bolo which is involved in a case being tried)
Sketch being drawn by the witness in the witness stand where the latter is being asked
to illustrate exactly the relative position of the vehicle at the time of impact.
(Demonstrative evidence)
- Witness has to authenticate the object
- purpose of marking: to prevent substitution/ tampering

Mode of authentication
1. Comparison-
2. Chain of custody- requires that the admission of an object evidence or a

thing must be preceded by proof sufficient to support a finding that the
object/thing in question is what the proponent claims it to be.
“introducing proof” of the evidence-letting each and every person who had
contact with the object to testify as he forms the link in the chain of the
custody of the object showing and proving to the court what he did with said
object, from where he accept and how did he safeguard it while it is in his
possession. Every person forming the link of the chain has to be presented to
testify that there was no time or opportunity for anyone that forms the link
that could give him the opportunity to tamper, substitute or alter the thing or
object. It is so for the court to know that the thing taken into custody up tp the
last person who took custody of the same, the object or thing was never
altered, tampered or substituted. In short, the chain of custody has for its
purpose to show that the thing being presented to the court is the very same
thing that was taken into custody by the authority from the time it was
apprehended in the possession of the accused.
*in order to ascertain chain of custody in drug cases- (police) prepared a form
aka “chain of custody form”
Evidentiary value- seen by the court to examine it himself.
* If the object evidence subject of the case is not presented. Example: in the
case of estafa involving the selling of gold ring. The ring can no longer be
recovered. Can you still prosecute?
- Non presentation of the object evidence will only affect weight but not
admissibility of evidence where instead of the object, you allow a witness
testify. It will depend upon the court if it will believe the witness.
“weight”- convincing power of the evidence.
Reason: an object evidence through its evidentiary value on the fact that it can
be seen and verified by the court itself.
Probative value of evidence lies upon the perception by the court of the object
which is presented and addressed to his senses to prove a fact. It can be proven
by other means through testimonial evidence or probably you can present a
picture of the object but it would be less convincing.
Human Body-
Can a person be compelled to be examined? (yes) Would that not

violate himself against self-incrimination?

- No. constitutional prohibition regarding right against self—
incrimination refers to the compulsory testimonial self-incrimination.
Acts that are purely mechanical are not included within the purview of
acts constituting self-incrimination.
However, to require the accused to give a specimen of his handwriting

by jurisprudence, it was held by the Supreme Court that it constitutes
a violation of his right against self-incrimination. Because by requiring
the person to give a sample of his handwriting, such act does not
merely constitutes a mechanical act but it also includes the mental
faculty of the accused which is protected by the constitutional
provision against self-incrimination.
However, if the signature is not the signature of the accused, you can
require the accused to make a sample of his signature. Because he can
no longer be incriminated because the signature showed to him was
already denied by hm. He can no longer be incriminated. *when
presented the signature, immediately invoke the right against self-
incrimination*
Types of object evidence admitted by court:
1. Photographs
2. Motion pictures/ videos
3. Voice tape recording
4. Sketches
5. Maps
*why are they being allowed?
- on the theory that they represent a method of pictorial communication by a

witness to supplement or act to the ordinary manner of giving testimony by
the witness while in the witness stand.
*when considered documentary evidence or object evidence
Example: Tombstone
Documentary: when being presented what is written on the tombstone// content-

there is a need for authenticate, show what is exactly being written (best evidence)
and the tombstone is complete by itself as to what is written (doctrine of
completeness)
Object: when it is presented to prove the condition regardless of what is written on it.
Condition to prove that tombstone is not in accordance of what you have specified to
be. For the court to see that it is not what you have specified.// if presented as a thing
or chattel regardless of the contents.

2. Documentary evidence-writings or any material containing letters, words, numbers, figures,
symbols or other modes of written expressions ordered as proof of their contents.
- Can either be real evidence or documentary evidence
- 3 special rules
1. rules of authentication-
2. best evidence rule- only the original of the document is admissible in evidence when
the purpose of which is to prove the content of said writing. No evidence shall be
allowed to prove the content of a written document except the original of the
document itself. (IMPT)
- original refers to the document itself that is the subject matter of inquiry
Example: what was written by the stenographer in the paper
But! if the issue is the correctness and accuracy of the record as it was transcribed,
then the best evidence the transcript of the stenographer as transcribed
“Original of the document”- the writing itself. Should not be understood as the first
copy of the document.
- 3 concepts of the word “Original”
1. the document itself which is the subject of inquiry
2. executed at or about the same time with identical content (Duplicate

original)
3. when said writing is repeated in the regular course of business, one being
copied from another at or near the time of the transaction. Done
contemporaneously. (example: in banks where the entries are being made
contemporaneously as the transaction takes place. Withdrawal or deposit
recorded in the ledger and at the same time reflected in the passbook of the
depositor)
- applies only matters that is contained in a document. When you are trying to prove
the content of the document.
- when can the best evidence cannot be invoked
1. external facts and collateral matters from the document- existence, manner
of execution or delivery.
Example: was the consideration paid by the buyer to the seller- not covered
by the best evidence rule. Because the manner of payment or person present

could not be seen readily from the document or the content of the document.
External that cannot be written in the document.
- Exceptions to the Best Evidence Rule (Secondary evidence may be presented)
1. lost, destroyed or no longer available
2. In the possession or control of the adverse party who upon due notice
refused or deny to have in his possession the original of the document - the
other party is not automatically allowed to present secondary evidence, you
have to prove and show to the court that the original is with the plaintiff and
that notice was given to the plaintiff for him to produce and notwithstanding
reasonable time to produce the original, said party denied or refused. The
denial is the basis of the law so that the party may adduce secondary evidence.
Possession does not necessarily mean actual possession, as long as the original
is within his control.
- what must be established or prove:
1. party offering the secondary evidence must establish that the

adverse party has in possession or control the original document
2. notice should specify or describe the document (not required to be

in writing)
3. failed or denied to produce the original
4. failed to present a substitutionary document
- what if the refusal is based on justifiable ground (example: he does not have
the original), will the party be allowed secondary evidence? Yes.
- what if the adverse party did not refuse but he does not want to present the
original on the ground that it will incriminate him? Will he be allowed to
produce secondary evidence? Yes. When there is an admission of the existence
of the document but the adverse party refuses on the ground that is justifiable
such as on the ground of self-incrimination, the party will be allowed because
in a case decided by the SC of US, such a situation could be liken as a situation
as if the document is no longer available.
- effect if the document is with the adverse party and he refuse to produce the
original? Party is allowed to present second evidence and the party who
refused to produce the original document is already barred in producing the
original for the purpose of contradicting or defeating the secondary evidence.
Also, his refusal to produce the original is deemed to admit the correctness the
truthfulness of the content of the original document.

3. When the original document consist of voluminous/ numerous accounts
and it will be a waste of time when the fact sought to be established is only
the general result
- if what is being sought is the general result or the summary
4. when the original is said to be a public record in the custody of a public

office/r
- example: birth certificate
- just secure a copy duly certified by the custodian of the office.
- Section 8: if I ask the adverse party the production of any document, it does not make you to adapt
the document as your evidence. You may or may not mark it as evidence.
- Parol Evidence/ The rule protecting a complete agreement
“Parol”- something spoken or said or an expression or word of mouth. Synonymous to oral

evidence.
Rationale: when a party agreed to reduce their agreement in writing, under this rule, they are
not permitted to adduce evidence which will alter its term in the assumption that whatever is
not found in the writing should be understood to have not been agreed upon or the parties
have decided to waive it or could be presumed that the parties has decided to just abandon it.
- best evidence rule provides and prohibits any party to a written agreement or their successors
in interest to introduce testimonial as well as documentary evidence when the purpose of said
evidence or the effect of introducing such evidence will alter, modify, change or contradict the
terms and condition of the written agreement or contract.
- cannot introduce testimonial or documentary evidence when the effect will alter, change
modify or contradict what has been written in a contract or agreement.
- difference of best evidence and parol evidence :
* Both: what is the subject matter is a written document
*BE: what is required is to produce the original (unless it falls within the exceptions).
What is prohibited is the substitutionary evidence.
*PE: Will come into play only in cases where the dispute is between the parties to a
written agreement. Applies only if the one testifying oral and documentary evidence
is one of the party in the document subject matter of the case.
- applicable only as against the parties to the contract and can be invoked only by the parties
to a contract or by their successors in interest of which there is a privity of contract

- purpose: maintain the stability of contracts.
3. doctrine of completeness
- does not always come in a piece of paper. As long as there are numbers, letters, symbols or
other mode of expression written or contained in any kind of material.
-it is the prerogative of the lawyer to present the evidence to produce in representing his client.
* Parole evidence will not apply if the ambiguity is intrinsic
Therefore, oral evidence may be allowed to explain said ambiguity.
Example: the document states that the land must be equally divided between X and Y. (no ambiguity
in the terms—will not give rise to any confusion or misunderstanding).
If equally divided by a straight line (2 point monument and a santol tree). However there are two santol
trees. 1st santol tree will be used as a point, cannot be divided equally. 2ns tree can be divided equally.
Testimonial evidence may be presented to justify which point/tree to use in order to divide the land.
*testimonial evidence would not be allowed when the ambiguity is extrinsic.—ambiguous on its face
(Parol evidence rule must apply)
Example: sale entered by parties where the buyer’s name is omitted. Testimonial is not allowed.
Reason: By allowing the parties to produce testimonial evidence, they will be creating a new
agreement.
*Mistake—in order that testimonial evidence be allowed, it must be a mistake of fact not a mistake of
law. Such mistake must be mutual (both of the parties had committed a mistake based on an erroneous
fact). If the mistake is only upon 1, that would fall under the parol evidence rule and will not be allowed
to produce evidence.
- should always be alleged in the complaint. Otherwise, not allowed to prove the same through
evidence aliunde.
- if the defect (ambiguity of terms used in agreement) the mistake of fact which was the basis resulting
to a contract which does not reflect the intention of the parties can be proven by parol evidence, it
must be alleged in the complaint and make it as an issue.
- may also consist of imperfection- the document is incomplete. In the sense that the subject matter
may suffer a defect for lack of particular description such as a piece of land which does not have any
technical description.

Other things that can be proved by parol evidence as an exception from the application of the parole
evidence rule
-parties can testify on matters which constitute as a condition precedent where in the compliance of
which will give effect to the contract itself. That can be proved by parol evidence and will not violate
the rule on parol evidence. The reason for this is because by proving the condition precedent, it would
not result to the alteration, modification of the terms of the written agreement.
- if the validity or execution is questioned as in the case of recission of contract due to fraud, deceit,
lack of consideration or absence of consent on the part of the other contracting party, parol evidence
rule will NOT apply. The parties can introduce testimonial evidence regarding the agreement which
may make the said contract void. (extraneous to the terms and condition of the contract itself)
Example: lack of consent/ vitiated consent—does not appear in the terms of the contract. Matters of
deceit or fraud does not applear in the face of the contract. Extraneous matters which can be testified
on and does not violate the parol evidence rule.
Contract does not exist/ no contract- not covered by the parol evidence rule. Therefore, parties can
present evidence.
- oral stipulation entered by parties which are contemporaneous but does not appear in the written
contract- cannot be proved by oral evidence because it will violate the parol evidence rule. (silent)
Parties however may prove by oral evidence matters for which the written contract is silent about. And
testimonial will not contradict or be inconsistent with the terms of the contract.
Parties decided not to make their written agreement as their final agreement (example: saving clause-
parties will be allowed to introduce evidence)
Things that can be proved by parol evidence:
(by way of testimony of the parties)
1. agreement which constitute a condition precedent for the e
2. when the issue is due execution, validity, enforecebility and effectivity of agreement
3. verbal agreement not inconsisitent with the terms
4. matters for which the contract is silent about
5. when it can be inferred that the parties did not intent the written contract to be the final agreement
6. when the issue is whether there exist a contract or not as in the case of rescission or annulment of
contract
7. when the oral evidence to be introduced is to terminate the contract itself

Is parol evidence allowed for the party to testify that the contract is a fictitious one or lack of variable
consideration?
- Yes. It involves matter which is extraneous to the terms of the agreement. (it cannot be covered by
the parol evidence rule). Existence of the contract itself.
Qualification of a witness
- all who can perceive and make known their perception to others
“witness”- person who gives evidence through oral testimony before a judicial tribunal
Under the new rules on judicial affidavit—reduced in a written form is still considered also considered
as a testimonial evidence. Constitute as direct examination.
- after the witness confirmed his affidavit, he can be cross examined by the adverse counsel by oral
testimony
Judicial affidavit (purpose)- to facilitate introduction of evidence as a direct testimony of the witness
and avoid waste of time.
“testimonial”- given by word of mouth.
“documentary”- any kind of writing.
Qualification
1. ability to perceive (with the use of the senses)
2. must be able to communicate his perception to others
Disqualification
-A person who has been convicted of a crime of moral turpitude (notarial writ)—cannot testify
- a person who is to be drop and be used as state witness
* even if a person has been convicted of perjury, flase testimony blah blah, it is not disqualification as
provided by law,
- conviction of a crime is not a disqualification except if there is an expressed provision of law.

Section 21- a witness may be disqualified by reason of his mental capacity or immaturity
Children who are immature- no age limit.
Insane persons?
* Universally, insanity is NOT a disqualification or mental weakness. The testimony is said to be

admissible in evidence.
An insane person is said to be a qualified witness. Because an insane person is recognized to have some
lucid intervals.
As long as you can intelligently provide or understand the obligation and nature of an oath
Lucid interval- insane person momentarily regain his sanity. Where he thinks or acts just like any
ordinary person who is not suffering from any mental illness.
Prior history of insanity- he does not enjoy the general presumption of law that he is a competent
witness. (confined in the asylum of an insane person)
- but does not disqualify him as a witness
What to do when your witness has a prior history of insanity?
- qualify the witness
- propound questions. (that he was insane but not anymore)
In child in order to qualify as a witness, he must have the mental maturity to understand the nature
and obligation of the oath that he took.
-propound question that would qualify the child
Leading question allowed because of his limited knowledge/ understanding considering his tender age.
*idiot is considered to be an incompetent- under the law classified as insane. A person without any
understanding since birth.

*A deaf mute does not disqualify him as a witness because a deaf and dumb, as long as capable of
communicating by any other method what he has perceived can testify in court.
Competence as a witness may be limited or subject to restriction enforced by law either by relationship
or public policy.
Rule 130 Sec 22- “Marital Disqualification”
(General Rule) - neither the husband or the wife during the marriage may testify for or against the
other spouse without the consent of the other in a case may it be civil or criminal where one or both
of them are parties to the case. Subject to 2 exceptions
1. case is one against the other
2. complainant in a case is the ascendant or ascendant of the other (ex: father upon the
daughter. The wife can testify against the husband)
- can be waived as when the spouse who is a party to the case call the other spouse as his/ witness. It
would constitute to a waiver.
Can the wife take the witness stand to testify in favor of the husband who is a party to the case?
- No.
Suppose the husband who calls the wife to testify in favor of him. What is the effect? Can the husband
object during cross examination?
- No. he already waived the right to invoke the prohibition.
Rationale behind the rule:
- to preserve the marriage which is based on trust and confidence. A relationship which is characterized
with affection and harmony between a man and a woman.
- to protect the family and keep it united. Since under the law, the State has an interest over the family
as a basic social institution./ to maintain the harmonious relationship between members of the family
* not limited to testimonial evidence. That would be used for or against the other spouse- may it be
civil or criminal case.

In order to invoke, they must be legally married.
If neither on of the spouse is a party to the case, you can be asked to be a witness just like any ordinary
witness. (because there is nothing to protect or to preserve)
Summary:
1. Rule is absolute but must be claimed by way of objection otherwise waived.
2. does not define as to what matters
3. may be invoked in both civil or criminal case
4. it will apply if one or both of the spouses are party to the case
5. the spouses must be legally married
6. co-terminus with marriage it end where the marriage ends (death or annulment)
7. by claiming this disqualification would not give rise to any presumption adverse or otherwise
8. as an exception, it will not apply if the case is against one against the other spouse or when it involves
tha ascendant or descendant of the spouse who will be giving his testimony.
9. it applies regardless WON the testimony is for or against the other spouse
“Disqualification by reason of (Marital) privileged communication”
- imposed by law upon husband and wife to be a witness. This is said to be a limited disqualification in
the sense that the husband/wife cannot testify on a very limited matters which are said to be matters
which are privileged communication.
- unlike in the marital disqualification, it does not specify what maters or forms that a husband or wife
cannot testify on.
- the prohibition is limited to matters regarding communication made by one spouse to the other
during or after the marriage which one has received in confidence by reason of their relationship.
Disqualification by marital privileged communication
Not absolute. Only confidential in nature
Confidential- matters that are intended to be kept secret. Not intended for publication and limited
between the husband and wife.
If made in the presence of a third person (overheard) where in the third person acquired knowledge
to the communication, the one making the communication to the other and the other spouse is still
protected.

Third person who overheard it either by accident or purposely, it will not be covered by the privilege
communication. If placed in the witness stand, he cannot invoke the martial privilege communication.
It applies only to husband and wife.
> prohibition applies even if neither husband or wife is a party to the case. (unlike marital
disqualification wherein husband or wife must be a party to the case)
> limited only to matters which are confidential in nature/ intended to be kept secret.
Rationale: In order to protect the relationship between husband and wife which is based on trust and
confidence. Which matters when disclosed would affect the relationship between the husband and
wife. Which is based on trust confidence and affection.
>burden of proof to show that the matter communicated is not confidential.
> any mode of expression: oral or written
Q: is an action or conduct covered by this privileged marital communication. Limited only to those said
by word of mouth or document? Does it include action or conduct?
A: yes. Actions are more eloquent than words.
People v Carlos (47 PHIL 626)
Letter written by the wife to the husband the content of which will prove premeditation thereby
qualifying the crime for which the husband is charged of homicide to murder. Seized by the police by
warrantless arrest of the husband when the husband was frisked.
Q: Can the wife who made the communication or the husband to whom the communication was made
may object to the presentation of the letter and is it admissible in evidence?
A: Yes. Because it came to the possession of the third person. Section 24 is limited only upon husband
and wife. Unless (exception), third person acted as an agent. Of if there is a voluntary disclosure by one
spouse to third person (third person becomes an agent of the spouse).
Because of a collusion or voluntary disclosure by one of the spouse, the third person even if considered
a stranger becomes an agent and therefore covered by the marital privilege communication
Q: when does the prohibition seizes?
A: Continues even if the marriage was already nullified or one of the spouse is already dead.

Disqualification by reason of death or insanity of a party of transaction a.k.a “the dead man’s rule/
statute”
- out of public policy and fair dealing
Example: A transaction with B (died). A filed a case against the estate of B (A vs estate of B from a claim
out of a transaction by them while B is still alive). during the hearing of the case, the estate of B is
represented by the executor. Since B is already dead, A was presented as witness to prove his claim
against B and/or his estate.
Under the dead man’s rule, A cannot testify on matters arising from the transaction which they had.
Object of the rule is to guard against the temptation to give false testimony.
Purpose: 1. to put the parties in equal footing.
2.To avoid the strong temptation of committing perjury
- the rule puts a limit upon a surviving party in a transaction I giving his testimony in court on matters
of fact involving a claim arising from a transaction with the person who is already dead or insane who
can no longer defend himself from unwarranted claims.
- what is prohibited is the testimonial evidence which occurred between the parties to the transaction
before the death of the other party.
Q: against whom is the prohibition imposed by law?
A: surviving party and the surviving party must be the one who initiated the complaint. He must be the
plaintiff or his assignor (ex: child)
If the action has been commenced by the deceased through his representative, the dead man’s statute
will NOT apply.
- if the case was filed when B is still alive but in the course of the proceedings, before A could take the
witness stand, B died. Will the case be dismissed?
A: No.
Q: will the dead man’s statute be applied?
A: Yes. The crucial period is at the time when the other party (who is A) will take the witness stand and
testify.
- how to state the ded man’s rule: a person or his assignee who have had a previous transaction with
another who is now dead or insane or incapacitated cannot testify on matters appertaining to the
transaction that occur prior to the dead of the other party in a subsequent case filed by the surviving
party which constitutes a claim or demand against the estate, the representative of said deceased the
executor, admin or heirs.

*heirs referred to must be in the capacity as a representative. If personal capacity being the recipient
of the property of the deceased by way on inheritance, dead man’s statute will not apply. Because they
are not being sued in the capacity as representative therefore not representative of the deceased.
* if there is already a distribution of property among the heirs. And where the plaintiff has a claim,
dead man’s statute will no longer apply. The heir is being sued on his own personal capacity as a
possessor and recipient of the property because there was already a distribution of inheritance.
*If the party-plaintiff has pursued a case as assignee of the contracting party, the rule would still be
applicable.
Q: who is the person that is being protected by the prohibition
A: the representative of the decedent or party who has become insane
Q; is that limited to the successors who are the heirs of the decease person? A suit against the heir of
the deceased person.
A: yes. Even if the right of the decedent has been acquired not necessarily by an heir.
Can an ordinary person who is not an heir but to whom the right of the deceased person be protected
by the prohibition? (example: person who bought the land of the deceased- the land being the issue in
a case)
- dead man’s statute will still be applicable. Because the subsequent person who acquires interest of
the decedent has merely stepped into the shoes of the deceased by reason of being a successor in
interest to the right of the decedent.
- the representative referred to by the rule is not limited to a relative of the decedent.
Required that the claim must arise from the transaction while both of them are still alive.
“claim/demand”- any action or proceedings which will affect the personal or real property of a
deceased person.
- in effect lessen or reduce the asset or property. May it be real or personal, would fall under the term
“claim” or “demand”
*this right is said to be waived when you failed to object

EXCEPTIONS: (surviving party may testify on matters though occurring prior to the death or during the
transaction they had entered into)
1. claim is said to be very much less than what may be warranted by a clear evidence-
example:
A lawyer has filed a case for collection of sum of money against his client who already
died. There is an evidence consisting of a letter contract wherein the client agreed to pay his
counsel in the amount of 120k. however the claim seek to collect only the balance of P20k. will
the plaintiff (lawyer) be allowed to testify that only the amount of P120k was paid to him?
- the claim of the lawyer is very much less than what a clear evidence show which is he is
entitled to P120k.
* the law allows it because in this particular case, it will not prejudice the estate of the
deceased for the reason than it could not be possible that the claim of the plaintiff is said to be
taking advantage of the fact that the deceased can no longer contradict. The evil sought to be
avoided by this rule is far remote/ absent.
2. fact did not occur/ transpire
- would not cause any prejudice against the estate/ deceased
3. transaction of the defendant which is fraudulent perpetuated by the defendant who is

already dead
- cannot use the rule to shield the fraudulent deed of the defendant
4. if the action is commenced but the decease or representative
5. Cadastral cases
- no plaintiff
6. plaintiff is the corporation/ partnership??
7. who is not a party to the transaction

* rule must be strictly construed in favor of the dead man’s statute- in case there is doubt that
the testimony to be given by the plaintiff who is the surviving party would violate the dead
man’s statute. He should be not allowed.
Because of the unfairness it will result.
Disqualification by reason of privilege communication (attorney-client relationship)
-Disqualification by reason of public policy
- in order to preserve the trust and confidence that is created between the lawyer and the
client.
- has been extended to the employees of the lawyer who are the secretary, stenographer and
the clerk.
- lawyer cannot (without the consent of client) testify on the ff:
1. intended to be kept secret
2. advice given by the lawyer to his client which was given by the lawyer in the pursuit
of his professional employment- matters which are legal in nature
3 any matters coming from a lawyer may it be in a form of an opinion or advice by

reason of the existence of the client- attorney relationship
- persons covered by the prohibition: (confidential employees 2-4)
1. lawyer- as long as he is the member of the bar. Won practicing or an employee of

the office, as long as member of the bar.
2. stenographer
3. secretary
4. clerk
5. agents acting in behalf of the lawyer
*not all employees of the firm are covered by the prohibition by reason of their
employment. Example: janitor of the office
- person being protected: the client. But it may be invoked. Usually it is being claimed by the
lawyer in behalf of his client.
- who could be a client?
May refer to an individual person or a group of person like an association (natural or

juridical)
“juridical” (like corporation)- Regardless of the position as long as he is authorized to

disclose an information

The client may not be examined as to what opinion or legal advice was given by the lawyer to him. This
is covered by the privileged communication.
Rationale:
1. In order to encourage the client to freely disclose all the facts or circumstances attendant to
the right with the view to enforce and protect the rights of the client in accordance with the
law;
2. It is important that the client will be able to freely disclose all facts and with out fear, all matters
which are disclosed by a client to his lawyer in the witness stand, for the better administration
of justice where it requires the client to an unrestricted and unbounded confidence in his
attorney thereby allowing him to disclose matters affecting his rights and obligations.
3. Without the privilege, the administration of justice will not be free, unrestricted, and there will
be uncertainty in attending the enforcement of ones right.
Essential requisites to bind the lawyer to the attorney-client privileged communication.

1. There must be a professional employment. Without this relationship between the lawyer and
the client, there can no longer be privileged communication. This is deemed to exist form the
very moment there is a professional employment by the client wherein the client secures the
services or when the client contracts with the lawyer for the latter to be the former's legal
adviser. When the client sought the professional advice of the lawyer, there is an attorney-
client relationship. Any information and matters communicated by the client to his lawyer and
legal advices given by the lawyer to the client are now considered privileged communication,
even if later on, after listening to the opinion given by the lawyer, or after the client has finished
communication the facts of the matter, or a legal advice which the client was not convinced
off.
2. Though there is no actual engagement of his services, both matters or communication were
made to the lawyer in the course of conversation which are us"...........
These matters of facts need not even be related to a case. It is not necessary that there be a case as
long as the client engage his services to give Legal advice.
Test:
If the communication given has for its purpose to obtain professional advice in his capacity as legal
professional, then it is covered by the privileged communication between lawyer and client.
Voluntary statements made after the lawyer has already refused or declined to accept employment is
not anymore covered by the privileged communication between attorney and client.
Lawyers covered:
1. all members of the IBP
What form of communication is protected?

A: Any form of communication or mode of expression: written, verbal.

Confidential in nature - matters which would not have been relayed to the lawyer if he were not a
lawyer, or if services will not have been engaged as a lawyer.
Abstract or general question of law is not covered by this privileged communication.
Matters on which lawyers cannot testify:

1. Communication intended to be confidential
2. Advice made by the lawyer to his client which advice is in the pursuit of his professional
employment.
3. On any matter communicated by one to the other by reason of the existence of the client-
attorney relationship
4. Or though there exist no actual relationship, the information was given by the client towards
the pursuit of professional employment.
5. Or even after communication of said information there was actually no attorney-client
relationship that was his cabris.
Burden of proof that a communication is a privileged communication: the client
Includes documents- depending on the contents of the documents. If it contains confidential matters
will cause a breach of trust, it will be covered by the privilege.
Matters of facts which are communicated which are not confidential in nature ( by communicating it
to the lawyer), does not make it confidential.
Who is protected by the privilege: the lawyer.
How long does the prohibition last: until death. Even when the lawyer is disbarred. By reason of public
policy- to enable the client to fully disclose the facts for an effective service to be rendered by the
lawyer to his client.
Privilege between patient and a physician
Purpose: to protect him from embarrassment or his name or reputation and tends to blacken the
reputation of the patient. Affects the good name of the patient when he was still living.
Requisites:
1. In an action which is civil in nature
2. Patient- doctor relationship
3. Advice or treatment acquired was during the time when he is professionally attending to
his patient
4. Necessary for the performance of the professional duty
5. Disclosure of the information would tend to blacken the reputation of the patient
When does the relationship deemed established?

- When the patient seeks the services of the physician or services was employed by the
representative fo the patient

- To render curative or palliative treatment
“Person authorized to practice medicine”

- One who is licensed to engage in the practice of medicine ( passed the board examination)
- Faith healer does not fall under the definition of practice of medicine
What id he does not pass the examination but attends to the patient. Will he be covered by the
privilege?
- Yes as long as the patient in good faith believes that the duly person is licensed to practice
medicine
“ professionally attending to his patient”

- His services was secured by the patient for curative preventive or palliative treatment
*In order that an information or disclosure will be protected, these are matters that are necessary for
the performance of his duty
*Information given by the patient out of ignorance but believing that it is necessary for his treatment
is considered as a privileged communication
* includes observations made by the doctor
* methods employed by the doctor to determine the correct diagnosis or prescription to be given to
the patient
* not limited to what the patient disclosed or communicated to his doctor
* includes:
- the information the doctor had made himself
-laboratory results
-includes medicines prescribed
-information communicated by the third person
Is the doctor free to disclose what he has observed the cadaver of a person in a civil case. Can the heirs
of the dead person invoke the privilege?
- No. A dead man is no longer a patient. Not longer falls within the definition of a patient.
- Subsequent death of the patient would not allow to disclose those matters which he learned while
he was till treating his patient
Does a psychiatrist falls under the practice fo medicine?

(Case): 23 scra 146 a psychotherapist is covered by the privilege.
Cron v CA: in a case of annulment. The husband produced the copy of a report by a psychiatrist who
examined the wife. The privilege was invoked
Sc: admissible. It does not fall under the privileged communication. Because the one who is testifying
is not the doctor.
The proper objection should have been hearsay.

* if he is testifying as an expert witness- merely hypothetical questions. Does not violate the
confidentiality. ( not covered by the privilege)
Minister and penitent

- Confession made or advice given by the minister
- Acquired during confession
- Applicable to all kind of action (civil or criminal) whether the penitent who made such confession
is a party to the case or not
“Penitential in character”
That he will ask fro the forgiveness of his sin.
* an inmate in a bilibid prison w the chaplain. Told the priest that he is ready to settle with the family
of the victim in order to put an end to the case. Begged the priest to negotiate with the family to have
the case settled and in the course of the confession he confessed that he stabbed the victim. Can the
priest testify that the accused admitted, will that be covered.
- No. The confession that was made is not penitential in nature because the disclosure by the inmate
was not for the purpose to absolve him and ask for forgiveness
Public official
-official confided to him during his incumbency that would prejudice the public interest
- to protect public interest and safety
Requisites:
1. Communication was made to a public officer- protection is granted to the government and not
to the witness. It is the government that is being protected.
2. Made to said officer by reason of his office
3. Disclosure of such information ma endanger public safety or security of the state or public
interest would suffer
”executive privilege”
- The power fo to withhold information from the court public or congress. Power pf president and
high level official of executive branch
- The president cannot be compelled to disclose informations which are natters within their
jurisdiction. It is a privilege granted to the president and the higher level officials of said branch
Who determines won such disclosure will prejudice public interest?

-Court
Example: during executive meeting

Other matters which are considered as privilege communication
1. Editors and publishers of newspapers may not be compelled to disclose the source of the
published news which includes accredited reporter
Exemptions: when the security of the state demands
2. Voters cannot be compelled by the court or in any quasi judicial proceedings to disclose for
whom they have voted. To protect the secrecy of the ballot which privilege may be waived.
3. Those engaged in business. Not to disclose their trade secrets. (Formulas of manufacturers,
Price list or Customer’s list)
4. Bank deposit (RA 1405): info re bank deposits are being protected and it cannot be disclosed
without the consent of the depositors and it covers all kinds of deposit. Covers all transaction
made by a citizen with the bank.
Exception:
1. A case involving impeachment
2. Bribery
3. Cases involving money deposited or invested in the bank which is the subject matter
of litigation the very subject of the case is the property consisting of money deposited
or invested in the bank. Or even bank safety deposit no, covered by the secrecy of bank
deposit.
4. Anti graft and corrupt practices
5. Unexplained wealth
 There must be an order coming from a competent court (impt)
 In order that inquiry would be allowed, there must be an order coming from a
competent court. Subpoena doe not come within the meaning as an order coming
from a competent court because the prosecutors office is not a county. The bank can
refuse if subpoenaed
 If part of the estate, falls within the meaning that the money in the bank is the subject
matter of litigation
 Bouncing check- falls within the phrase “subject matter of litigation”.
Filial Privilege
- No person may be compelled to testify against his parents
- includes grand parents because within the meaning of ascendants
- or any direct descendants like grand children
- not a disqualification nor prohibition But a privilege (grant of the right to choose: testify or not to
testify)
- if they voluntarily submit themselves from testifying against the parents, nobody can’t stop them.
-ask preliminary question that the witness s not forced to testify.
Purpose: to protect and preserve the harmieny unity and trust reposed by the members of the family
- Civil or criminal case
- Grants a freedom from compulsion
Exemption:
1. When the testimony is said to be indispensable or when the case is one against the other
Reason: the evil which is sought to be prevented does no longer exist.

Admission and Confession
- When there is an admission, there is an acknowledgement of a fact and such fact is said to be against
the interest of the person making such admission. Because of the fact admitted which existence and
the truth is favorable to the one making admission, self- serving and inadmissible in evidence.
- If contrary to your interest, It may be admitted in evidence.
- What the law tells us is that the person cant create an evidence against himself through his act or
declaration or commission to perform an act
Example: law provides that through an act of a person, He may create an evidence against
himself
Compromise agreement in a criminal case is an implied admission of guilt. ( can be used an evidence
to prove that you are guilty)
Failure to act may also be an admission through omission.

Example: unexplained delay in filing the criminal case without any justification. Gives or creates
impression to the court that the offended party does not believe that he has a meritorious case.may
be done through declaration, omission or by action
May be expressed or implied
Admission (judicial and extra judicial)

Difference: j: no further proof and deemed established
Ej: must be offered in evidence
Confession: there is a direct acknowledgment of guilt. The person admit that he has committed a
wrong amounting to a crime or participated in the commission thereof
Admission v confession
A: does not involve a direct acknowledgement of guilt but there is an acknowledgment as to the
existence and the trust of the matter which is material to the issue of the case
C: direct acknowledgement or participated in the commission of the crime
“I shot the victim”: admission.

“I shot the victim dead”: confession. Directly acknowledging the guilt
No such thing as implied confession. Always expressed.
Self serving evidence is inadmissible in evidence. But an admission being contrary to one’s self interest
is admissible in evidence on the proposition that there is no normal or sane person who would testify
against himself and if it is untrue, it is his fault
Rule 130, Sec. 27 Offer of compromise not admissible. - In civil cases, an offer of compromise is not an
admission of any liability, and is not admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law
to be compromised, an offer of compromise by the accused may be received in evidence as an implied
admission of guilt.

A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, is not
admissible in evidence against the accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not
admissible in evidence as proof of civil or criminal liability for the injury. (24a)
An offer of compromise in civil cases does not amount to an admission of liability. It is not admissible
in evidence against the offeror.
Whenever there is an offer of compromise in a criminal case, it is an implied admission of guilt, except
for: (1) quasi-delict; or
(2) those allowed by law to be compromised.
Implied admission of guilt.

The offeror is not precluded nor estopped from explaining the reason that prompted him to
make an offer to compromise. The offer of compromise according to the rule where it is involves a
criminal case is an implied admission of guilt because the rule says it is merely an implied admission,
the offeror is not precluded nor estopped that the offer is being made to compromise, not because he
admits his guilt but for some other reason such as:
(1) humanitarian reason; or
(2) to ease his conscience; or
(3) to avoid inconvenience brought about by litigation which may result to.
The offer of the compromise need not be made by the accused himself, it may be made by the:
(1) lawyer;
(2) relative; or
(3) other person, as long it is made with the consent or knowledge of the accused.
Rule 130, Sec. 28. Admission by third party

-The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as
hereinafter provided. (25a)
The rule of res inter alios acta

- The right or interest of a person shall not be prejudiced by the declaration, by the act, by the omission
of another person.
Gen. Rule: The act of a person could not prejudice the rights or interest of another person.
Exceptions: Sec. 29-31
If a party makes a declaration amounting to an admission of guilt, such can only be used as evidence
against the same party.
No sane or normal person would be testifying contradictory to/or against himself if it is not true.
*self-serving evidence -Inadmissible as evidence because such kind of evidence can easily be
fabricated or concocted, and hence, unreliable. This rule is applicable only to declaration which are

self-serving when made extra-judicially. Therefore, when self-serving evidence is made in the course
of trial, this is admissible as evidence.
During trial, any declaration made by the witness or the party, whether self-serving or otherwise can
be subjected to cross-examination which will allow the parties to test the veracity, the truthfulness, or
the correctness of the testimony made.
Example: An affidavit of the person. Is a "hearsay evidence" hence, inadmissible UNLESS the affiant
who made the affidavit presents this in court will the parties may examine it.
Exception:
1. Rule 130 Sec. 29. Admission by co-partners or agent

- The act or declaration of a partner or agent of the party within the scope of his authority
and during the existence of the partnership or agency, may be given in evidence against
such party after the partnership or agency is shown by evidence other than such act or
declaration. The same rule applies to the act or declaration of a joint owner, joint debtor,
or other person jointly interested with the party. (26a)
The act or declaration made by a partner within the scope of their authority and while
the partnership. is still existing may be given in evidence against such party. The act of the
partner can be binding against the partnership. His admissions which amounts to an
admission will not prejudice the other persons unless there is a partnership which is
organized under the NCC.
2. A partner acts as an agent of the partnership

-Ordinarily, an act, declaration, omission, or statement of a partner will constitute as an act,
declaration, omission, or statement of the partnership.
Provided that in case of an agency or partnership:

(1) such act or declaration should be made while the partnership or agency is still existing;
(2) the act or statement in order to be binding upon the other partner must be within the scope
of his authority or, in case of an agency, the agent is granted authority by the principal and the
former acted upon that authority; and
(3) the relationship of being a partner of one by the other should be established by an
independent evidence--the person making such statement must be shown that he is a partner
not by mere statement of someone declaring that he is a partner but by more than what the
declarant has declared. i.e. Present the articles of co-partnership, or the SPA in case of an
agency--there must be a more tangible evidence other than the declaration of the person
himself
*can there be a agent- principal relationship that is made orally? Yes.

Example: no agency established by virtue of a document (spa) when a person however
expressly refer to another person for an answer while being examined in the witness stand for
an answer to a particular matter in dispute, the answer fo that person referred to for an answer
by the witness is thereby constituted as his duly authorized representative as an accredited
agent.

- By designating or referring a particular person to answer a question for him, an implied agency
is thereby created. It is not necessary that there must always be a SPA or document creating
agency between the 2.
3. Admission by conspirators
Rule regarding their liability: if you are a conspirator, the act of one shall be considered as the
act of all
- when conspiracy is established by evidence, the act of one is the act of all
- “May be given in evidence as against his co conspirators after the conspiracy is proven and
established”
- Unless conspiracy is established, the act, declaration or action of one is said to be inadmissible
as to his co accused
Example: before the formation of the conspiracy, one recruited X to rob the bank. In the course
of the recruitment he made a statement that X joined the group to rob because they have as a
mastermind the nephew of the governor of the Bank. Would the statement made by the
accused after they are apprehended after robbing the bank be admissible against the
mastermind of the group (made before recruiting the members of the group?
- Yes. It was made in the furtherance or creation of the coup or conspiracy.
“ conspiracy” there must be an agreement between two or more person in the commission of a
crime. Must prove agreement otherwise no conspiracy
- can be inferred from their actins or conduct of words. ( one desire or purpose where they seek
to achieve)
- The burden of proof is upon the prosecution. It must be shown by evidence which is clear and
convincing
- At what point of time conspiracy could be shown or established? Only during the trial.
Therefore a statement made extrajudicially and not during the trial could not be considered
ass an exception to res inter alios alta. The rule will apply only to extrajudicial declaration made
by co conspirators but not testimony given on the witness stand during the trial s a direct
testimony. It simply means that if this admission by one of the co accused during the trial or in
the course of the trial, it would be admissible in evidence as against his co accused even
without proof of conspiracy as long as the evidence against him is said to be competent and
given by a competent witness. However with establishment of conspiracy, its conspirators
becomes a privy to each other which binds others. It could be admissible in evidence because
his other co accused would have the right to cross examine with the co accuse making such
statement or declaration
Summary
- Requisites
1. Conspiracy must be established by evidence other than the admission made by said accused
of the existence of conspiracy
2. That the admission mad must relate to the common objective, purpose or desire which they
seek to achieve. Must relate therefore to the objective of their agreement
3. Such admission was made during existence of conspiracy wale the declarant is engaged in
carrying out their common design or made in furtherance of the conspiracy

* if made after the of purpose could no longer be admissible in evidence
* made prior to the formation of the conspiracy is likewise not admissible as against his co
accused because such act would be said to be a res inter alios acta as against the other co
accused
An admission made by a person would be hearsay so far as the other person is concern unless there is
a privity of relationship shown.
What is being contemplated is a situation wherein there are several accused who are said to be
conspirators in a conspiracy in a commission of a crime
- Made an admission extrajudicially during an investigation. If that admission was made

extrajudicially it would be res inter alios acta insofar his co conspirators are concerned.
However when the following requisites are present, such admission made extrajudicially
1. There must be a clear and independent evidence of conspiracy- to establish the privity of
relationship
2. Admission was made while the conspiracy is still existing or the purpose of conspiracy has
not yet been attained or such admission was made even prior to the formation of
conspiracy but was made in the course of furtherance of conspiracy or admission
 If during trial one of the co accused in a conspiracy made an admission implicating his
co accused, the admission shall be admissible to his co accused.

Reason: such testimony is given in the course fo trial when the co accused could
examine said witness who testify and made an admission
Admission by Privies
- One person is an owner of a property and makes a declaration or statement against his interest
- Binding to his successor in interest
- Rationale: being the former owner, he is so situated to assume that we can assume that he knows
all matters appertaining to his property. So any declaration made by his is assumed to be true.
- Why considered evidence against former owner and against his successor in interest?
Being a successor in interest they share a common interest brought about by mutual
succession.
- Example: father did not pay tax of real property. His father himself did not believe that he is not
the owner of the property. In evidence, act or omission made regarding matters of fact
appertaining to a real property could be used as evidence against his successors-in interest.
- Such statement or declaration by the former owner must have been made when he was still the
owner. If after transfer ownership, no longer binding to his successors in interest.

- Exception (even if the former owner has already transferred his ownership, statement made by
him thereafter on matters concerning the real property could still bean evidence against the
person from whom who have derived title from him)
1. When there is a estoppel- when one makes a representation of matters of fact as true and
other has relied on such representation to be true and had acted on it. That person to make
such representation is barred…..
2. When there is a fraudulent transfer or conspiracy to defraud- ex: fictitious sale
Admission by Silence
- Silence means concurrence of what was stated

- Rationale: based on a fact that it is instinctive and a natural for a person to react on unfounded
claim or demand or when the assertion is untruthful in accordance with the saying “ silence means
yes”
- Applicable in both civil and criminal cases
- Requisites:
1. Statement made within the hearing distance of the party/ heard and understood the statement
2. Statements calls for a reply which is the proper thing to do
3. There should be an inference that can be drawn to his silence that is material to the issue
- Exception ( ay not be construed as admission)

1. When the silence was brought about by lack of knowledge to whom the imputation is being
made as when he is completely ignorant on the matter imputed
2. Such declaration does not need a reply
3. Statement is doubtful
4. Silence brought about by restrain
5. Statement is not addressed directly to said person
6. Constitutional right- investigation being conducted by the prosecution or agency charged with
investigation.
7. To answer statement or claim will cause an interruption to an orderly proceedings- to make an
answer would be improper since your turn has not yet come. Not yet your turn to answer
question. Example: clarificatory investigation before prosecution’s office where you are given
a turn on when to speak.
Confession
- Declaration of an accused acknowledging his guilt for the offense for which he is charged in any
offense or felony necessarily included
- Person who is arrested has the following right: (miranda v arizona)
1. Be informed of the accusation
2. To remain silent
3. Any statement or declaration made by him could be used an evidence against himself
4. Right to counsel of his own choice-state will provide him with a lawyer for free
** cannot be waived.
** without such warning, all proceedings shall be considered as null and void and evidence will
become inadmissible
** what may be waive is the right to counsel and right against self- incrimination

- There is no such things as implied confession
- Why admissible in evidence?
Because confession if made voluntarily and freely, it is said to be an evidence of the highest
form. No normal and sane person would admit a commission of a crime unless he is impelled
by truth.
- Required legal form/ language in order for the confession to be admissible

In writing especially when it is an extrajudicial confession
- As to the form, it does not require a particular form or must be under oath
- It must be shown that the same must be explained and the confessant had understood
the consequences of his act.
- If made in a language not spoken by the confessant, it must be shown that it was
translated to said confessant prior to his affixing of signature
- Provided it is duly signed by the confessant
- Must be shown that the accused had voluntarily( was made, knowingly and freely given
such a confession
- The law presumes that every confession is voluntarily made by the confessant. It is therefore
required that of you question the validity of a confession made by your client, it is required
that at the very first opportunity, you have to register your objection
- Indications that the confession was made voluntarily

1. Conduct or actuation by the confessant
Example: while the accused claim that he was tortured that forced him to give a confession.
Yet no case was filed nor initiated by said accused against the police. Neither can he name
the policeman who allegedly torture him.— voluntary
Or did not complain to the prosecution that he was tortured
2. When the confession is detailed (detailed narration of facts)
- Should the confession be spontaneous in order to be considered voluntary?

If made through repetitious questioning by the investigator and the questioning was persistent
and finally the accused gives the facts which conforms the truth, it will still be considered as
voluntary
- What the law rejects are confessions which are involuntarily obtained through force and
intimidation, violence or threat or confession obtained by inducement because confessions
which are involuntary are inadmissible for reason that they are more often false and therefore
unreliable.
- Evidence obtained illegally are said to be inadmissible
- Any evidence illegally obtained and one of which is a confession which is involuntarily is
inadmissible for any purpose and in any proceedings (consti)
- Distinguish whether the inducement would tend to obtain false confession or true confession
Example: inducement made by a public officer who has no authority to exempt a person from
criminal liability and the basis that he would be excluded from the case that will be filed made
by a person that has no authority to decide. Such inducement and confession obtained shall be
considered ADMISSIBLE in evidence.

If an inducement is made by a person who has the authority to make good of what he has
promised, the confession is inadmissible because such confession was a direct effect of an
inducement
- By trickery or fraud is admissible: does not tent to result to the making of a false confession.
- Confession obtained on a promise of immunity. Depend if the person making promise has
authority to grant such immunity and the accused believes so. Any confession would be
INADMISSIBLE.
Reason: such confession would be considered as a direct result of an inducement
- Confession made by a accuse implicating a co-accused

If made in an extrajudicial confession: with respect to the other co accused, such confession
will be considered as res inter alias acta.
EXCEPT when during the trial the following requisites are established
1. Existence of conspiracy
- That the declaration made or participation by said accused was done when the
conspiracy still exist
2. Made in the course of trial- as long as the evidence is competent and material to the issue
** where lies the difference if made extrajudicial/ judicial:
If the confession is made extrajudicially, that lt is considered hearsay because the co accused
is not given the opportunity to cross-examine the person who made a confession extrajudicially
You have to comply with the requirement rule 130 section 30
If the confession made in the course of trial, it is admissible against the confessant himself and
competent evidence against his co accused. (Through cross-examination)
- In case of conflict as to the facts of the several confessions made, one confession would not render
the other confession inadmissible. But it is an obligation upon the court to havre it reconciled in
order to arrive as to the truth of the matter of fact subject of said confession.
- Confession is the evidence of the highest order against the declarant. Yet, when it comes to
extrajudicial confession, an accused cannot be convicted on the basis of his extrajudicial confession
because under rule 133 section 3, the law requires that the prosecution must establish or introduce
proof of the purpose of corpus delicti.
Extrajudicial confession alone without proof of corpus delcti, an accused cannot be convicted of
what he had admitted.
However, a confession made in the course of trial by the accused. It is said that such a confession
being judicial in nature, need no further proof.
- Legal consequence where the accused made a confession in the course of trial=
Equivalent to a plea of guilt. No need to conduct any hearing or trial because there is nothing to
prove anymore. Because admission is already an evidence sufficient to overcome the presumption
of innocence
- Complies with the required quantum of evidence (proof beyond reasonable doubt)

Summary (confession to be admissible)
1. Expressed
2. Voluntary (1987 consti)
3. Presence of counsel (consti)
4. In writing (ra7438- june 9,2000)
5. Usual practice of governmental agencies like the NBI or CIDG, where you are sent an invitation
for an investigation comes with it the meaning of custodial investigation (Ra 7434)
Custodial investigation- conducted by a governmental agency after a person has been taken
into custody or deprive of freedom in any significant way.
Only during custodial investigation would entitle a person to the right of an accused (miranda
rights)
When CI starts?
Any waiver of the right to counsel must be in writing (ra 7438)

The lawyer must be present to assist you to make such waiver. Otherwise, waiver is null and
void.
How? Police will summon the lawyer whom the accused have chosen to assist him. Lawyer
should come in the place where the investigation is conducted. Before the commencement of
the investigation the investigator should propound question to the accused who wish to make
confession. If the accused waive his right to counsel, at the time he waives it, it must be in the
presence of the lawyer. The latter must hear from the mouth of the accused that he waives
the right to counsel and be on the records that ……. He should sign the waiver in the presence
of the lawyer and the lawyer should also sign.
But if the accused doesn’t waive his right, the lawyer from the start up to the finish of the q
and a must be present.
Section 34- Similar Acts as Evidence/ Rule on previous conduct

One crime committed at a previous occasion would not prove the commission by the said accused at
the same crime for which he is being charged
- One crime does not prove another unless it can be shown that there is a relationship which provides
the prove of one tends to prove another
- Inadmissible
- Surgeon was convicted on the crime of rape and victim was mutilated. Subsequently a rape victim
was discovered by the police and the rape victim was mutilated and the doctor was the suspect. Can
the previous conduct of the doctor (rape) be used that the present subject of the case has been
committed by the same person? No.
- An act done by one constituting an offense could not be introduced in evidence to trove what he did
or did not do an act of another crime
- Rationale: previous act against the accused for an act committed thereafter now subject of the case.
The previous act of the accused would be considered irrelevant and immaterial. It is objectionable.
Because the act being introduced is an act different from what is being litigated and has nothing to
do with the present act for which the accused is being charged. Objectionable as irrelevant and
immaterial.
- Rationale: it would be unfair for the accused to prepare his defense. There might arise a confusion
on what crime committed to defend.
- Example: ask if you have a pending case in another sala. Object- irrelevant and immaterial
- Previous conduct is considered as collateral maters.

- Because the law does not allow it
Collateral matters- those facts other than what is at issue and they are usually being offered as a
basis for inference as to the existence and non existence of the fact in issue.
- As a rule under section 34, it is not admissible as a proof to prove that the accused committed an act
for which he is now presently charge because on previous occasion that there are evidence to show
that he has committed the same or similar act.
- This previous conduct however under section 34 may be used as proof of specific intent, knowledge,
identity, plan, system, habit, custom, usage etc and the like (like the modus operandi)
- Objection on collateral matters: irrelevant and immaterial
Why? His previous act which is also similar to the act being charged has nothing to do with his present
case.
- Even if it is not allowed as direct evidence, it could be used as a basis to infer to make an assumption
to arrive at a conclusion. To prove identity, intent, motive etc
- Example: to prove specific intent, where a person is charged of theft. His defense is that the wallet
was found by him lying on the side walk. Defense is lack of intent to gain.
The prosecution introduced evidence that the accused has a previous conviction of theft and pending
cases of robbery in manila and quezon city.
Is the previous conviction and pending case be admissible as evidence for the crime of theft? No.
But under section 34 rule 130, such previous conduct may be used to make an inference on the intent.
You destroyed the defense of the accused of lack of intent to gan
- Effect of the remoteness in point of time in the previous offense to the present offense?
Example: convicted of murder in 1980 (life in insurance taken by the husband wherein he is a
beneficiary) but on technicality he was acquitted. In 1990 accused for the death of his second wife
(also he is the beneficiary)
Is the previous conduct of the accused where the wife died by poisoning and that insurance was taken
be introduced as evidence considering that it was 10 years ago have any effect? No effect. It is still
allowed to be introduced to prove specific intent or motive.
It goes to the credibility snd weight on the convincing power of the evidence. But as to whether it is
admissible or allowed, it is allowed.
Section 35- Unaccepted Offer
- What kind of evidence to present to prove compliance of the obligation a sum of money, to
deliver an instrument or property that was not accepted by the obligor or creditor (unjustified
refusal)
- Written letter addressed to the obligor or creditor
- Have the offer consigned in court
Section 36- Testimony of a witness

- A witness may only testify on facts acquired by his own perception
- Matters of fact which he acquired from other person is inadmissible in evidence— Hearsay evidence
- Hearsay evidence WON objected is considered as inadmissible evidence because it is considered as
incompetent (excluded by the rule)
- Lack of objection to a hearsay testimony does not make the evidence competent
- Hearsay evidence- facts which are not what the witness knows himself through his personal
knowledge but what he heard from others.

- Why not admissible as evidence?
- Since he has no personal knowledge and merely echo what he had acquired from another
person, it is very difficult to ascertain the truth of the matter and credibility and integrity of the
person who has the personal knowledge of the fact being testified to by the witness.
- In relation to a criminal case would be violative of the right of the accused to confront his accuser
(cross examine).
- X witnessed that according to Y it was mr X who received the check. Hearsay?
It depends. If the testimony of the witness is being presented to prove or establish the truth that X
received the check according to Y then it is hearsay evidence.
If said testimony of the witness has for its purpose to establish what has been said to him by X
regardless whether it is truth or not, it is not hearsay evidence. When it pertains only to the tenor.
(Independently relevant matters)
- Depends upon its relevancy of the issue of the case
- Exception
1. Independently relevant statement
- 2 kinds
1. If relevant to the issue/ It is the very issue itself in the case
- When the fact sought to be established to prove that those were the words
and utterances made by a third person and not the truth of the utterances or
his statement, his testimony is not hearsay evidence.
- Primary evidence not merely secondary
- Example: oral defamation or slander cases
The very issue of the case is WON the utterance made by the accused is
derogatory or slanderous.
You have to prove the utterance and for that purpose you need a witness to
testify. The witness who heard the slanderous or derogatory utterances made
by the accused.
The statement of the witness is the very issue of the case of oral defamation
- Not a hearsay evidence

2. Statements which one can used as an inference to prove the issue if the case
- Circumstantial but relevant in the sense that based on the statement, you can
infer the very issue in the case under litigation
- Example: witness in case of homicide. Prosecution asked what utterances was
made the accused when he attacked the victim. The witness testified that the
accuse was shouting “papatayin kita! Traydor ka”. (Intent to kill)
- Purpose of the statement as testified by the witness is to prove by inference
the state of mind of the person. In short, intent to kill.
- Not a hearsay evidence but independently relevant statement from where the
court may infer as to the issue relevant to the case.
- Example: To prove conspiracy, the prosecution asked the question to the
witness “what did the other accused do after X punched the victim on his
face?” “Accused Y delivered a kick on his chest and fell down on the ground
hitting his head on cement and said “maraya ka pa””

- Is that a hearsay evidence? No. considered as independently relevant
statement to prove the state of mind of the person
Summary on independently relevant statement/ mattes:

- Exception to the hearsay rule
If
1. It is the very issue of the case ( example: oral defamation case above-mentioned)
2. It is being introduced as from where we can infer as to the issue of the case
- Testimony of the dead witness ( only evidence that would convict the accused) with an affidavit
under oath before taking the witness stand. As a defense counsel, object as hearsay evidence.
Cannot present the affidavit even if sworn. That does not make an affidavit admissible.
Because the witness cannot be subjected to the truth or falsity of his testimony
- Newspaper article to prove the guilt of accuse because the newspaper published that he is the
robber? No. Hearsay evidence
- Unless the affiant can be presented in court and be subjected to the test of the truth or falsity of
his statement
- Footage (news channel) of the accused admitting his fault? Considered as extrajudicial admission.
Can be introduced as evidence as long as it can be authenticated properly.
How to determine if a statement is hearsay?

1. Form or question and answer
2. Context of the testimony of the witness- as when the question is “what did he tell you” “what did
he say” “what dod you hear when they were conversing”
- Presumption: When a witness testify, he testifies based on personal knowledge
- What if the expert witness died or can no longer testifies but the medical record remains in the hospital
Prosecution usually asks for a subpoena to testify on the medical report prepared by another doctor.
Issue: is the testimony of a physician who interprets the medical record done by another doctor
admissible as evidence being a hearsay evidence?
Inadmissible (hearsay evidence). Medical records not the primary evidence when the witness testifies,
it is the testimony being given by the doctor who actually conducted the examination. The medical
certificate merely constitutes a memorandum or an aid for him to recall as to his findings when he
conducted the examination of the victim.
Another doctor testifying on the work of another is considered a hearsay evidence.
The other doctor may only testify the genuineness of the signature. But the findings in the certificate
may not be testified by him, hearsay evidence. The examination of a patient is dependent upon the
assessment of an individual who personally conducted the examination.
Findings may vary between different medical experts.

- Even if you do not object would not have any evidentiary value because lack of objection on evidence
which are purely hearsay does not make an evidence which is incompetent competent.
- Rule excludes hearsay evidence- incompetent
Exceptions: (certain evidence which are purely hearsay yet considered by the court as admissible)
1. Anti Mortem Statement/ Dying Declaration ( Section 37 Rule 130)

- Statement made by a victim of homicide or person inflicted with a mortal wound under a firm
belief that death is impending or inevitable or it will follow as a matter of course, makes such
statement admissible as an exception to the hearsay rule when introduced in a case where the
issue concerns the surrounding circumstances if the death of the declarant in a case where the
subject matter is the death of the declarant
- Situation being contemplated:

A person who is dying, before he died, had communicated to another person regarding the cause
of the injury he sustained as to the circumstances that led to the injury before the person who
sustained the fatal wound, believing that he would die and death is a matter of time, made a
statement to another person as to the circumstances of his injury before he die.
Subsequently there is a case. The person to whom the declaration was made before the victim
dies takes the witness stand to testify as to what the dead person before he died had
communicated to him regarding the identity, manner, circumstances that cause fatal injury.
He will be testifying on matters on which he has no personal knowledge (hearsay).
- “impending death”- death is said to be forthcoming. Not the same as immediate death
- Rationale:
1. by reason of necessity- because the victim who could identify the assailant is already dead
and thus, cannot take the witness stand. Otherwise, the person liable will go scot-free.
At the tine when the victim made such statement, there is no such reason for him to tell a lie
or fabricate a story just to hold any person liable for his death.
Every motive to falsehood is silences, and the mind is induced by the most powerful
consideration to speak the truth.
2. It is trust worthy
- If there is a showing that the dying person is hoping that he will survive, such declaration made by
him though he later on died will NOT be considered as a dying declaration.
Because the solemnity that is created by that circumstance or moment when a person is about to
die is not present which is the very reason that a dying declaration is admissible
- What is important is at that time when he made such declaration, he is conscious that he will die
- If he survives for another week, it would not affect the declaration because at the moment he
made such declaration , the solemnity that creates the state of mind of the person that he cannot
tell a lie because he will be meeting his “creator”.

- It is the belief of the person of an impending death which makes the declaration as a dying
declaration trustworthy.
And being trustworthy, it is admissible as evidence.
- How to determine if the dying person has that state of mind in making such declaration?
Words, conduct or nature and extent or seriousness of the injury sustained.
Or may be induced by the victim himself or outside factor (example: he heard the doctor that he
has no chance of living)
- If the declarant would have survived, he must have been a competent witness. (Example when he
was insane)
Or cannot testify because the injury he sustained rendered him unconscious that he could not
identify the assailant
- Present rule: admissible in civil or criminal case

Before: criminal case only
Reason: a dying declaration can do mist harm if unreliable in a criminal case. In a criminal case life,
liberty is at stake. Right or property in a civil case.
If it is more risky to accept or admit this kind of evidence and turn out to be unreliable, it has more
serious/ destructive effect.
Requisites:
1. Declaration is made by a dying person

2. Declaration is made under a consciousness of impending death
3. Declarant is competent had he survived
4. Declaration must be complete itself (doctrine of completeness) – may be subject to some
classification but was prevented to fully communicate or complete the expression that he wished
to convey and the court cannot stipulate or guess what the complete statement is
5. Must be introduced in evidence in a case the issue of which is the death of the declarant- may
be a civil or criminal case
(example: A witnessed B with a gunshot wound. A asked B”who shot him?” B answered “X”
because according to him, He caught X having carnal knowledge with the wife of H. In a case
for adultery, the husband presented A (the witness to whom B revealed that it was X who
shot him because he caught the wife and X having carnal knowledge amounting to adultery)
is the testimony of A admissible in a case of adultery.
No. Dying declaration may only be admissible when the case under litigation refers to the
death of the declarant. What is being litigated here is the unfaithfulness of the wife. B has
nothing to do with it). Therefore, mere hearsay.
- Form of a dying declaration: no particular form (oral or written). As long as the gist of the statement
made by the declarant is there
- How to introduce dying declaration in evidence?

Propound questions that would illicit from the witness as to the condition or state of mind of the
person when he made such statement and that the person is aware that he has no chance of living

- How about who does not believe in God or who does not believe in reward in the afterlife. Would
that nullify his dying declaration?
No. It might only affect the weight.
- If written, need not be under oath.
- Not only to identify the authorship of the crime or to be used an evidence for the conviction of an
accused as the one who committed the act. It can also be utilized as an evidence to exculpate/
exonerate the accused. Because the law does not differentiate or distinguish whether the dying
declaration will result to a acquittal or convicted. As long as it is competent and relevant, it would be
admitted in evidence.
- Could you impeach a dying declaration? Yes. By showing that the declarant is not credible.
- Can the declaration which was made by a person before he went into coma which is now introduced
into evidence be admissible?
- Should the victim or the declarant who made declaration to another person be dead before the
person to whom he made such declaration could testify by way of a dying declaration?
Yes. Otherwise, use res gestae instead
2. Res Gestae (Section 42)- “things done”
- 2 parts
1. Spontaneous Statement/ Startling occurrence
- verbal expression or utterance made as a result of being surprised or shocked by an event

which is said to be startling
- exclamatory statement
- could also be an act or words uttered by the victim himself, a person who is just observing as
a bystander. As an instinctive reaction to a starling occurrence
“Startling occurrence”- event or happening which cause a sudden surprise or a cause a great
alarm sufficient to produce nervous excitement
Example: “juan shot me!”. Victim did not die but rendered in comatose. Res gestae. What was the
starling occurrence?
- When the person was shot. At the time the victim made the statement, he has no time to
fabricate a story.
Police responded to a call for assistance where a person was stabbed while sitting inside a
tryk. He was brought to the hospital by the driver. The police asked the victim who stabbed
him but the victim did not identify the stabber. During the hearing of the case, the victim

testified that he identified the assailant. The defense averred that the police said, the victim
did not know who the assailant was. Objection: hearsay. Defense said that the testimony of
the police is considered as res gestae.
The statement of the complainant was made during the startling occurrence due to the
stabbing. At that time it can be presumed that the complainant has no time to fabricate the
answer that he will give.
The testimony will be admissible as an exception to the hearsay rule.
- What actually comes out from the mouth of the person is what he has observed, brought about
that shocking occurrence or experience. Admissible in evidence because since the utterance
was spontaneous in the sense that the mind was bot given the opportunity to deliberate or
analyze what has been observed of the occurrence that caused some nervous excitement.
Moreover, what has been declared is true.
- Example: murder case. He saw a woman holding a knife and blood was all over her body. While
crying and shaking in fear, he heard the woman continuously murmuring and repeatedly saying
“linapastangan niya ako salbahe siya. Binastos niya ako. Hayop siya” is that a hearsay evidence?
No. Because at that time th woman was uttering the words expressing hatred and anger, would
prove lack of intent to kill. These words were uttered while the nervous or fear was still working
on the person that she has no time to invent or contrive or fabricate what she is going to say.it
is just but a reaction brought about by a shocking experience she underwent. Such declaration
of the witness of what the woman has stated while still under the great excitmenet brought
about what happened to her couldbe considered as an evidence that the woman killed the
deceased not because of her intent to kill but for justifying and exempting circumstances,
defense of one’s honor.
- Example: her grandmother heard him shouting “si itay sinasakal si inay papatayin daw kami”.
The grandmother testified what the granddaughter had uttered while running upstairs to
inform the grandmother. To establish the identity of the assailant. (What she saw was the dead
body of the wife) based on what she heard from the granddaughter which utterance was made
while the starling occurrence was still in place downstairs.
The statement or testimony of the grandmother on what she heard from the granddaughter
could also be introduced to prove the state of mind of the father as it was observed by the
daughter while he was strangling the wife.
(Hearsay because the grandmother did not see what happened?)
No. Exception to the hearsay rule as part of the res gestae. Reliable and trustworthy. Because
the utterance made by the daughter could be the real belief of the daughter as to the event
taking place as she observed it while the father was strangling the mother and there was no
time or opportunity for the daughter to contrive. The utterance therefore was spontaneous
brought about by the alarming event which leaves the daughter no opportunity to invent
- Who determines whether it is a spontaneous exclamation caused by the starling occurrence?

The court. It will depend on the appreciation of the court. And will depend on how you will
present it to the court to show that the declarant had made those utterances jnder the
circumstance that he has no time to invent what he has declared or uttered.

3. Declaration Against Interest (Section 38)
- Declaration made a person who is already dead or no longer capable of testifying.

- Any declaration made by them which is so adverse to his interest/ unfavorable/ will subject that
person to any liability, such declaration must be true. Because normally, a person will not be saying
or admitting things which is prejudicial to him and his successor in interest and against a third
person.
- While he was still living who is now dead or cannot longer testify, where the statement is SO
ADVERSE which one would not do if he believes that it is false.
- An affidavit executed by a person even if he dies, will be inadmissible if it is favorable to the affiant.
- But if it is so adverse which a reasonable man would not make if he does not believe to be true,
then the affidavit, while it contains some favorable statement, the portion which is adverse to his
interest could be used as an evidence if that person is already dead.
- If still alive, would it be an evidence against such person or interest?
No need for the declaration made in writing. Put him in the witness stand. The evidentiary value of
the statement reduced in writing would be used to impeach him if later on he denies what he said
before.
- Usually in a form of an entry in the diary.
- Rationale: out of necessity- the only known proof left or available because the one who made such
declaration is already dead or can no longer testify.
- Is it trustworthy? Yes on the proposition that man will not falsify when such falsehood is prejudicial
to his won interest (pecuniary, moral, penal interest)
- Requisites
1. Declarant must be dead or can no longer testify
2. Relates to facts against the interest of declarant
3. Declarant was aware that his declaration/ statement is contrary or prejudicial to his interest
4. Declarant made such declaration where there can be no motive to falsify but said declarant
made such declaration because he believes that he is true
- Declaration must concern facts of which he is cognizance about- he must be familiar of by reason
of his position, it could be presumed that he is knowledgeable about the matter which concerns
facts contained in his statement or declaration
- Example: husband declared that the property where the conjugal home is constructed is actually
owned by the wife as paraphernal property. Husband is knowledgeable about the ownership of the
property by reason of him being the husband.
- Declarant must have no motive to falsify ( circumstantial guaranty of trustworthiness)
Example: declaration of the husband that the land where the family home is erected is owned by
the wife is an exclusive property of his wife. Such declaration or statement was made by the
husband in a meeting with the close relative of the family in a reunion where they talk about the
partition of properties among the siblings of the wife.
Cannot be said that the husband is joking or making a mistake in making such statements. Because
declaring such property as paraphernal, he is depriving himself any share on the property which

appears to be conjugal but actually an exclusive property of the wife. Admitted in evidence against
his declarant, heirs or third person.
4. Declaration about pedigree
- Provided that such declaration was made prior to the occurrence of controversy concerning the
pedigree of said person and the relationship of the person whose pedigree in question and the
person who made such declaration must be established by an independent evidence not by the
declaration or statement by said person
- Situation wherein the issue on the pedigree
- “Pedigree”- relationship, family history, genealogy, birth, marriage, death, places where birth
marriages of death occurred and the names of the relatives. Family lineage, descent and
succession.
- Concerns the relationship of the ancestors to his successors of descents
- Includes family history, names of relatives, history which is intimately connected with pedigree
concerning paternity and legitimacy
- Example: when were you born? March 18, 1996 (hearsay- no personal knowledge) (exception)
- Example: A made a declaration during the family gathering where X (close family friend was
present and heard the declaration of A that B is the illegitimate son of C. A is the daughter of C. (B
is the half brother of A). X is now in the witness stand.
The testimony of X regarding regarding a member of a family regarding the pedigree of B who is
related to A by blood could be admitted in evidence as an exception to the hearsay rule.
** A is already dead and could no longer testify
- The law requires that the one who made the declaration must be related to the person whose
pedigree is involved or in question. That gives him circumstantial qualification
- Rationale: by necessity and trustworthy.
Necessity- we have to relax the rule on hearsay because these facts by its very nature are usually
have occurred many years ago and it is hardly known only to some or very few person. They
consider it as private matters which are usually confined within the knowledge of its members.
Trustworthy- by experience, it tells us that those who talk about family affairs has no special
reason to be biased and no reason to falsify facts which are of serious consequences.
- Law requires that the declarant must be Dead or incapacitated or outside of the jurisdiction of the
court
- But if there is a better way to prove the pedigree of that particular person, such declaration should
be dispensed with.
- The availability of a witness who is also a relative if a person whose pedigree is in question would
not be a ground to exclude the declaration made by the person who is already dead.
- The issue of the case is the pedigree of said person or it is relevant to the issue as when there is a
case of paternity.
- The declarant must be a relative either by blood of affinity by reason of marriage
- The witness may be a stranger who is not at all related to the declarant or the person whose
pedigree is in question.

- Requisites:
1. Declaration must be made before the controversy occurred- to ensure that the act or
declaration regarding the pedigree has not been purposely made. (ante litem motam)
2. Relationship of the declarant and the person whose pedigree is at issue must be proved by
an independent evidence other than the act or declaration made by the person (example:
they are using the same family name or some other documentary evidence)
- may be used as negative or affirmative allegation
Example: a person denies that he is the father of the child
5. Family reputation/ tradition regarding pedigree/ family history

- Past events of which the witness testifying has no personal knowledge but he is testifying on
the basis of what he come to know as a member of that family.
- and nobody knows as to who of the members of the family or what generation or time this
tradition had started and it was handed down from one generation to the other
- Parentage?, descent, heirship? Which are matters only known to and within the family
members
- Example: family bible (with family tree). The person testifying has no personal knowledge as to
its content and may not even know the people or who made such entries
- a witness who is a member of a family would testify regarding family history where he has no
personal knowledge but it is admissible as an exception to the hearsay rule
- Rationale- the situation regarding family history could be liken/ analogous to the situation
where we, the present generation, have learned from science and history which our
predecessors or scientist had told us.
- Difference between section 39 and section 40
39: witness testifying regarding the pedigree of another person need not be related or a
relative pf the one who made such declaration or to the person whose pedigree is the subject
matter of the case. He could be a stranger.
40: the witness who is testifying regarding family tradition must be a member of the family.
Otherwise, his testimony would be inadmissible for being hearsay evidence.
6. Common Reputation
- Matters of fact that affects or which is significant to the life of these persons in a certain community
or members of the general public
- Common reputation must exist prior to the controversy (ante litem motam)
- More than 30 years or older (“ancient document”). Applies to those which are of general interest. If
regarding to reputation as to marriage, 30 years does not apply.
- Usually useful in cases involving land registration proceedings (30 years- period of prescription which
is extraordinary prescription)
- Also, Matters of fact respecting marriage. That a man and woman living together under one roof and
seen by the public to be together going to church or attending parties or gatherings where they
represent themselves as husband and wife, gives the presumption that they are lawfully married.
Such reputation NEED NOT be 30 years old.

- Also, moral character. Need not be in his residence. Said person may have stayed in his place of work
wherein his officemates may testify by way of reputation as to the person’s moral character.
- Reputation and character are two different aspect of personality

Reputation- opinion which others may have formed and express of the person’s character. Usually
that which the person is known within the community or reported to be
Character- inherent quality of the person rather than what other person thinks about him or regarded
him as such.
- “public or general interest”- does not require that everyone must unanimously have the same
opinion on the matter of fact which is sought to be proved. It is enough that it is an undivided opinion
of the majority.
7. Statement Accompanying an Equivocal Act Material to the Issue (Section 42- Second part of res gestae)
- “Equivocal”- Act susceptible to different interpretation
- Utterances made while an act or conduct is taking place which has no legal significance unless the
words accompanying it is considered.
- Example: when you see a man holding some bills and one by one he is counting the bills and handing
it to a young beautiful woman without hearing what the man said as he delivers it to the woman.
Such act could be susceptible to different interpretation.
Other person my thinks it is a fee or financial aid arising from the illicit relationship from the old man
with the young woman.
Or it can be interpreted as a payment being made to the woman for the loan for the services rendered
by way of salary or compensation.
Unless you hear the accompanying words together or simultaneously with the act of delivering the
money to the woman, you will never know what was that act for or the significance of that act. But if
you heard the accompanying word when he gave the money where the old man uttered “bigay mo
to sa mama mo sabihan mo bayad na ako sa utang ko sakanya”, that gives meaning to the act or
conduct which was otherwise equivocal or doubtful.
- It is the statement which is admissible in evidence as part of res gestae which is necessary to
understand the meaning of the act.
- How does it work in a real court trial?
As in the case of an oral defamation. While at the place of the incident, the witness observed that he
saw the accused while pointing his finger at the private complainant was uttering “puta, malandi ka!
Walang hiya!”
It is part of res gestae because it illustrates what the complainant did while uttering the words
- It is the equivocal act which is the part of res gestae which must be contemporaneous or
accompanying with the equivocal act.
- If there is a period of time that lapsed between the equivocal act and the verbal act, it could not be
considered as part of res gestae because the time period that has lapsed might have given the witness
the opportunity to deliberate or invent the utterance that would explain the act.
(Unlike the first res gestate which can be before, during or after)
8. Entries or Recordings Made in the ordinary course of business (Section 43)

- “Prima facie evidence of the facts as stated therein”- in the absence of any contrary evidence, that
entries or record shall stand as proof of the fact as what is recorded or purports to portray by said
document.
- Example: police blotter- considered as proof of what is stated. The person who is aggrieved is not
precluded from introducing evidence to contradict what is stated therein being prima facie, it is
conclusive and admits contradictory evidence.

- In order that the entries may be admitted as an exception to the hearsay rule, the one who has made
it or prepared it must already be dead or can no longer testify or no longer available to testify on his
work. But at the time he made such entries or recording, he made it so because it is his duty to do it.
Example: bank employee (accountant) who makes entries on a day to day basis in the ordinary course
of a banking business.
What happen if the person dies and the entries or transaction which the accountant has prepared
while he was still an accountant of the bank is no longer available. Can another officer of the bank or
an accountant who replaced such person be competent to testify on the work of another person?
Yes. Because of necessity
Ordinarily, anyone who testify on matters or work of which he has no person knowledge would
amount to a hearsay testimony ( because since he was not the one who prepare, he has no knowledge
of what the deceased accountant had made)
- Rationale: necessity- such entries made by the predecessor might be the only evidence available and
if you do not relax the rule on hearsay evidence, there might be a miscarriage of justice or it might
result to a more serious consequence.
- Trustworthy? Yes. Because the person who made such entry have made it as part of his work by
reason of his position. He has no motive or intention to falsify or misrepresent. Being part of his work,
it becomes routinary over which he has no personal interest to protect.
- The act of making those entries by the person in the ordinary and regular course of business must
therefore be characterized as regular and usual. Making those entries and recording must be
customary in that kind of business.
- It gives rise to the presumption that those entries made by said person, being part of his duty or work
by reason of his position, could be accurate and truthful
9. Entries in Official Records (Section 44)

- Certified copy would be sufficient to prove the facts therein stated when the document is a public
record. Not required to be a true copy, a machine copy will do as long as certified by the custodian of
the record.
- Custodian of the record- usually the head of the office.
- Why should the court rely on the trustworthiness of the record which is merely a certified copy unlike
in a private document (original is the best evidence which is authenticated by a witness in order to be
admitted in evidence)
Officer is enjoined by the law to keep a record, his non-performance of his duty would subject
him to a legal sanctioned or be penalized. Said public officer has discharged his duty faithfully
and regularly. (Legal Presumption)
- Why public records may be admitted in evidence without the necessity of presenting the person who
have caused the entries thereto
Because since the work is routinary, they do not have any special interest over the matter that
is being recorded. So, they could not be biased to commit falsification.
Since it is open to the public as a public record, any error made can easily be discovered
- Even if the civil registrar who made such entries during his term if office is still alive, mere certified
copy will be sufficient. You are not required to present the civil registrar himself.

- What if the one who made such recording is a private person but under the law he is enjoined to make
a recording or entries in an official record (example: private officer like the minister or a priest of a
particular church under the new family code are under obligation to prepare and record all marriages
and death that had been solemnized or taken place in their jurisdiction)
Certificate issued by the parochial office is still considered as a private document. Therefore it must be
properly authenticated. Not considered as official record under section 44.
10. Commercial list and the like (section 45)

- Compilations of data that are made as references. Business directories, trade journals made by some
authors or compilers or publishers which are relevant to your case which you may make as basis to
prove a certain fact.
- You can present the work of these authors, compilers or publishers
- Example: supreme court annotated report (scra). Not a publication of the supreme court but a work by
a very enterprising individual who have thought of this skill to make money by compiling decisions
rendered by the supreme court rendered in a period of time. The cause fo their being accurate and
trustworthy, the supreme court itself use it as reference because otherwise, if you need an authority
to back up your motion or argument in your pleadings you have to request a copy from the clerk of
court and supreme court.
Or the official gazette (official publication of the government of the republic of the philippines)
- The rule allows to just present their works without the necessity of presenting the author who made
such compilation or work.
- These authors or publishers are busy persons, you cannot just pull them out of the office in order to
testify. Also, it is not cheap to secure their presence in order to testify. To avoid unnecessary delay and
expenses.
- What is important in presenting these references is to prove and show that the publication has been
regularly publishes who possess expertise in the particular field and being used as references by person
who are engaged in the same occupation or activities like lawyers who use scra as references.
11. Learned Treaties (Section 46)

12. Testimony/ Deposition at a former proceeding
- These transcript of records may be presented for two purposes:
1. When used as a basis for impeaching the witnesses- to impeach the witness is to charge the
witness (sudyaon) with what he has previously testified to act and what he is currently testifying,
to contradict any consistencies of proof of fact has testified. To put into question the veracity of
truthfulness of his testimony. This is done to cause some doubt in his testimony
2. To establish a certain fact relevant to the issue which can no longer be established through the
witness because he is unavailable because he is already dead, and what is left is his testimony
given before.

Opinion of a witness
General rule: opinion of a witness is not admissible in evidence
Exception:
1. Section 49- Opinion of Expert Witness

Opinion- the testimony of the witness on what he believes to be so other than which he has inferred or
draw with regards to a fact in dispute as distinguished from the personal knowledge of the fact as perceived
by his senses
- Expert evidence - one that is given by an expert witness

- Expert witness- one who gives testimony in court with regard to matter of facts which he is particularly
skilled or experienced
- Could be introduced in both civil and criminal cases
- By reason fo his core knowledge, he could make an opinion with some probative value whose skill is not
ordinarily possessed by an ordinary man in the streets
- It is court who determines won the person is an expert or not
- “Shown to possess”- he must be qualified. Without qualifying the witness, he would only be testifying as
an ordinary witness.
- He is being ask to testify on his opinion. Unlike an ordinary witness, to be qualified, he must have
personal knowledge. 1
- You can ask questions that are purely hypothetical (“supposing …”). 2
- He can testify on his conclusion on matters of fact which he is testifying. 3
- Opinion- when you characterize something based on what you believe or think
- How do you qualify the witness?
Propound question and show to the court that he is indeed in possession of the knowledge, skill and
experience in a particular field in which he is going to testify.
Example: when did you graduate, where did you graduate, what did you do after graduation, did you
pass the board exam, how long have you been working with the Philippine eye research institute, what
special training have you undergone etc.
- What us important is before your expert witness opens his mouth, present the witness as an expert
witness by way of stipulation (defense admitted his qualification as an expert) that he is an expert or
qualify the witness as an expert witness
- After you have qualified your witness. Before you start asking question regarding th subject matter, do
NOT ask the court if it is satisfied in qualifying the witness. Let the judge decide and assess.
- Nature and purpose: in order to serve as an aid for the court as well as the counsel to understand matters
of which, being an ordinary person does not possess those knowledge possessed by the experts. To let
the court understand technical matters.
- The evidentiary value of the expert witness lies on the knowledge of the witness.
- The testimony of an expert is said to be advisory in nature. In the sense that the court may or may not
consider it. Depending on how convincing the witness is.
- Not binding if there are discrepancies or contradictory statement made by said expert. Because his
judgement is not based on facts hence null and void.
- Hypothetical questions must be based on facts
Example: medico legal and ballistic expert- death due to gunshot wound
He can testify that the bullet fired came from the same gun.

- 2 things that he cannot testify
1. On domestic or international laws to be applied or what the law is- within the prerogative of the Court
only
2. Ultimate facts of the case- because although courts are entitled to the aid of the expert on the
existence or non-existence of facts. He cannot express his opinion on the ultimate facts of the case
(won the accused is guilty or not). Because that prerogative belongs to the court.
Example: do not ask the physician whether an abortion was committed- that is for the court to decide,
expert merely has the authority to tell what was his findings.
Proper question: based on the examination of the uterus and the extent of the injury that it sustained,
what would happen to the fetus inside the uterus?
- Is the testimony subject to impeachment? Yes. (Subject to cross examination and impeachment)
- How?
Showing to the court the contradiction to the testimonies or inconsistencies in his statements.
Show that he is a biased witness
2. Section 50- testimony of an ordinary witness

- Ordinary witness- witness who is not an expert
- Can give his opinion only on a very limited scale/ matters provided under section 50
1. Identity of a person whom he has adequate knowledge
2. Handwriting of a person which he has sufficient familiarity
3. Mental sanity of a person
4. His impression with respect to the emotion, behavior, condition and appearance of a person
- Basis or predicate that you have to lay down before the testimony or opinion of an ordinary witness
may be admitted as evidence:
Identity- refer to the person with whom said witness has adequate knowledge. Only the identity of the
person may be admitted in evidence by way of an opinion when said person’s identity is being
established.
Adequate Knowledge- quite familiar with said person. By his own knowledge, he can identify
the person even without the use of his eyes (by mere listening to the voice)
Handwriting- do not need an expert to identify the handwriting. Provided that the witness has
sufficient familiarity (he knows very well and will be able to identify) the handwriting of a certain
person. Propound question (why can you say that it is the handwriting of mr. X- “I am quite familiar
with the signature of mr X” )
Sanity/ Mental State- sufficiently acquainted with. Must be be supported by citing an instance or an
event that could clearly show the mental state of said person whether he is sane or insane.
Example: 2 friends who went to a cockpit. According to the friend, there was a time when he
and his friend (whose mental sanity is in question). He brought his fighting cock while his friend
brought a duck.

That is how you would testify by way of opinion. Bot only that you have sufficiently acquainted
with person, but it must always be supported by an event or situation where it could clearly
show the state of mind of said person.
Impression with respect to the emotion, behavior, condition or appearance- reason for this is because
it is an ordinary matters or aspect of life which does not require a special training or knowledge to tell
whether the persons happy, nervous, fat, healthy, young, old, tall, small etc.
Section 51- The character evidence

- Not admissible- would not be sufficient to prove that said person acted in conformity with his
character. It does not follow that the accused have committed the offense because of his bad
character
- “ character”- simply refers to the qualities of the mind and moral aspect of a person. It is what a
person really is.
- Character of a person signifies the reality of a human being whether he is good or bad.
- vs “reputation”- what other thinks about what kind of person he is. May also be good or bad.
- Character and reputation therefore are not the same.
- General Rule: character of a person could not be admitted in evidence.
Exception (1):
in criminal cases, the accused may prove his good moral character which is pertinent to the moral
traits of the offense charged.
Rationale of the exception: Because in a criminal case, by proving that the accused has a good moral
character, it operates as an appropriate and substantial defense. A good and honest person or a god-
fearing person would most likely not commit a wring doing that would amount as an offense unless
he commits an offense by reason of temptation.
Example: crime of rape.

The moral trait that is involved of which the good moral character of the accused may be introduced
in evidence: respectable, god-fearing, loving father of a family, religious person who always goes to
church.
Estafa or swindling: Can introduce evidence to show that he is an honest, truthful or fair in his dealings
with other people
Exception (2):
Prosecution cannot initiate or begin with the evidence showing that the person has a bad character
except on rebuttal.
If the defense did not introduce any evidence regarding the good moral of the accused, the
prosecution cannot present evidence regarding the bad character fo the accused during the rebuttal.
While a good character of the accused may constitute a substantial defense, the bad character of a
person could be a weapon of offense that might prejudice or unnecessarily influence the mind of the
judge by initially destroying the accused through proof of bad moral character

Rationale (why it is only on rebuttal): this presupposes that in the examination in chief by the defense,
they opened up the issue on good moral character.
Only matters of facts which has been taken up by the presentation of evidence in chief by the defensr
Exception (3):
Good or bad character of the complainant or offended party
If the good or bad character of the offended party tends to establish in any reasonable degree of the
probability or improbability of the commission the offense charged
May be admitted in evidence if it will prove or disprove that the crime has been committed
Example: in the case of seduction of a woman

A woman of loose morals, if you can prove that she is known to be such could be used as an evidence
to prove that there was no seduction. It could have been the woman who seduced the accused
because of her moral character.
Crime of rape
Because of the loose moral of the woman, it can be used as an evidence that if ever sexual intercourse
has taken place, it was brought by mutual lust. There was actually no force, intimidation or violence.
Applicable to civil case?

Yes. Only when said characters pertinent to the issue involved in the case
Example: in the case of oral defamation (damages)

If you can show that the complainant who was allegedly humiliated through the utterances which is
defamatory in nature is a respectable woman, she would be entitled to a higher damage than a
woman whose character is not as good as she portrays herself.
- Character of a witness
Rule: Not allowed. It is not necessary under the law. Because the law presume that every witness who is
called to the witness stand enjoys the presumption that said witness is a truthful person with a good
moral character.
Exception: When the credibility or character of the witness is impeached or attempt, the proponent of
the witness can now introduce evidence to prove the good character of his witness. (Done during the
cross examination of the witness)
- Summary
Whose character may be proved in evidence?
1. Good character of the accused if his moral trait is pertinent with the offense charged
2. Good or bad character the offended party if it would establish the probability or improbability of
the offense charged
3. Character of a witness when such character is impeached otherwise, the good character of a
witness is always presumed by law

4. Moral character of a party in a case when pertinent to an issue of the case (example: damages
arising from oral defamation- the reputation of a person WON good bad could be the basis of how
much does he or she deserves for having been destroyed by such defamatory utterance)
5. You cannot prove the bad character of the accused except on rebuttal.
If the accused chooses not to put in issue his character, no inference can be drawn against said
accused for his omission of failure to offer in evidence his good character.
- Can you introduce in evidence other crimes committed by the accused on a previous occasions? Or in
the course of proving the bad character of the accused, could you introduce evidence of a wrongful act
committed act by the accused on a previous occasion?
No (when the purpose of which is to prove that by reason of the wrongful act, it would be an evidence
that this time he acted inconformity in being an indecent and immoral person).
Objectionable: previous conduct as evidence is inadmissible (immaterial and irrelevant)
Burden of Proof
“Burden of evidence/ going forward with the evidence”- obligation of the party to adduce evidence
which would create the prima facie case in his favor or on the part pf the defendant, the burden of
evidence refers to the duty or obligation of the defendant to overthrow or defeat the case that was
created against him.
- General rule: in a case whether it is a criminal or civil case, the burden of proof lies on the party
who initiated the action. (Civil- plaintiff; criminal- prosecution)
- Test for determining who has the burden of proof:
The one who alleges the affirmative of the issue.
Example: complaint for recovery of possession
The complaint provides that the herein plaintiff is the real owner of the piece of property
consisting of a residential house and lot situated in Naga and that as an owner, he is entitled to
the possession as incident of his ownership. (Affirmative allegation- the one who alleges the
affirmative shall have the burden of proof)
The real test to resort to for purposes of determining who between the two parties has the
burden of proof:
Who between the two will stand to lose if no evidence is presented.
Criminal case: if the prosecution will not introduce evidence, the case will be dismissed for failure
to prosecute or lack of evidence.
- Effect when there is a legal presumption with respect to the burden of proof/ what does the
legal presumption has to do as to the issue of the case:
The law itself by way of presumption establishes a certain fact as true and it remains to be so
until such time that contradictory evidence is presented.
Example: case of unexplained wealth

There is that provision which provides that the money of a certain public officer is manifestly
out of proportion with his salary, it is a prima facie evidence of unexplained wealth.

If no contradictory evidence that would defeat matter of fact established by the legal
presumption, it becomes a conclusive evidence.
Based on that presumption, the law already establishes a certain fact.
What is the effect of the legal presumption?

It merely relieve the prosecution from introducing any evidence for the time being. But it does
not completely excuse the prosecution from the burden or duty to introduce evidence because
as the law says, it merely establishes a prima facie case or proof of unexplained wealth. If the
defense introduced an evidence that will contradict the presumption or defeat the
presumption created by the law, the accused is entitled to the acquittal. But if the accused
failed to introduce evidence to contradict the presumption established by the law, it will be
considered sufficient evidence.
If no evidence is introduce that would contradict that presumption, the accused will be
convicted based on the presumption.
- General rule in criminal case: prosecution has the burden of proof to prove the essential
elements of the offense charged.
The law fixes the quantum of evidence required to warrant conviction. The law requires
evidence beyond reasonable doubt (criminal); preponderance or overwhelming evidence
(civil); substantial evidence (administrative).
- What happen if there is negative averment/ allegation in the complaint or information?

As a rule, negative averment need not be proven. Because by its nature, it is difficult to prove.
(Civil or Criminal)
Where the fact are more within the knowledge of the accused, the burden of proof rest on the
accused.
Example: illegal practice of medicine

The information will allege that the accused knowingly feloniously and willfully practiced
medicine without the required license to practice the same to the prejudice of the public.
The negative averment there is without the necessary license to practice medicine.
Example: Collection of sum of money

Need to prove non-payment. (Negative averment)
Rules:
1. Negative of an issue which does not permit a direct proof or where the facts appertaining
thereto are more immediate and accessible to the accused or within the knowledge of the
accused, the burden of proof is not on the prosecution but is on the accused.
Example: non filing of income tax return

The fact of payment of income tax is what is a matter of fact which is immediate and known to
the accused. If the accused have paid his income tax, he can easily produce the receipt and that
settles the dispute. (“When the facts is more immediate and within the knowledge of the
accused”)
It is the accused who has the burden of proof. Under the circumstances, what is required from
the prosecution is merely to establish a prima facie case that the accused has not filed his
income tax for the year 2016 and 2017.
Example: illegal possession of firearms

The mere fact that the accused cannot produce his license when demanded is not sufficient.
Possessing a license or not is within the knowledge of the accused. The prosecution is required
merely to introduce evidence obtainable under circumstances. ( certification from the office
from camp crame that the person is not authorized to possess or own a gun). Accused cannot
insist that the prosecution introduce evidence which is beyond reasonable doubt because the
law says, when it comes to negative averment, the prosecution must only establish a prima
facie case and not required to adduce evidence beyond reasonable doubt.
Rule 132- Presumptions

- “Presumptions”- the result of the inference that we derive based on a fact which is unknown, which
usually arises through the usual connection with another fact which is known.
- Example: a man and a woman living in a community, sharing one roof. Whenever they go out, they
are seen walking together holding hand. Whenever they attend social gatherings iin their
community, they are being addressed as mr and mrs.
The unknown fact is their relationship. (Husband and wife or siblings.
The known facts is that they are living together in one roof and always together holding hands. And
when they are attending social gathering, they are addressed as mr and mrs.
From the known facts, we can infer through their actuation the conduct that they have displayed
could only be attributed to a man and a woman legally married.
- 3 Kinds of Presumption
1. Conclusive- presumption or inference on which the law makes it final and not subject to dispute
not it is still debatable.
- Admits no contrary proof. Could not be overthrown or defeated by any proof
however strong it may be.
- Example: presumption mentioned in section 2 paragraph B- tenant is not
permitted to deny the title of his landlord at the time of the relationship of
landlord-tenant. If you admit that you are a tenant, you can never claim nor
introduce evidence to prove that you are the owner of the property which is
subject to tenancy. By admitting that you are a tenant, you are also admitting
that you are not the owner.
2. Disputable/ Rebuttable- may be accepted or acted upon in the absence of any contradictory
evidence. But it may be overcome by a more superior or stringer evidence.

- Example: presumption of innocence.
3. Quasi Conclusive Presumption- one where an inference derived therefrom may become
conclusive when certain conditions which are provided for by law has been complied with or are
present.
- Example: presumption of legitimacy or illegitimacy.
- No presumption of legitimacy or illegitimacy born after 30 days following the dissolution
of marriage or separation of the spouses. Whoever allege the legitimacy or illegitimacy
must prove his allegation.
- Conclusive if facts or elements are said to be present.
“Principle of estoppel”
- A person is barred from denying anything to the contrary that which has been established as the
truth of the matter upon which other has relied upon it as true.
- When a person misrepresented himself that he has the capacity to transact a certain parcel of
land being the owner and having the legal capacity to enter into a contract.
Barred from denying what you have led another person to believe as true.
- It is based on fair- dealing, justice and equity

- The law makes it as true, because if the law would hold otherwise, the person who in good faith
relied upon such representation will unnecessarily be prejudiced or suffer injury.
- The one who relied on the misrepresentation must be innocent in order to involve the protection
provided for by law under the principle of estoppel.
- Whenever the principle is being invoked, there is always some fraud or deceit that was
employed. It frequently carries the imputation of fraud arising from some misleading conduct.
- What could be the essence of estoppel?
Inducement of another person to act to his prejudice which is contrary to fair dealing and
morality.
- Example: person represent himself as the owner of the land and he sold it to another person
through installment and this person represented that the title of the property is in his name.
When the time comes when the purchase price has been fully paid, the buyer demands that a
deed of absolute sale be issued in his favor and that the title be issued in his name. When they
filed a case, the seller denied liability because the actual owner of the land is a corporation of
which he is the president. Though he is the president, he is not authorized to sell. There was
misrepresentation or fraud.
By estoppel, that person who said that it is the corporation who owns it is now barred from
raising the issue that the sale was null and void. It is just but right, based on justice, equity and
fair dealing that he is barred from denying such fact of which he allowed others to believe as
true.
- Kinds of Estoppel
1. By conduct/ in pais- one where a party, by his own declaration, act or omission, intentionally
led another to believe a fact as true is not permitted thereafter to deny of falsify the fact
which he led another to believe as true in any litigation or dispute arising from such
misrepresentation.
Purpose: to preserve the right of said person which he has already acquired on the basis of
what he was made to believe as true and correct

2. By deeds
3. By judgement
- Does not apply to acts which is illegal by itself.
Example: married man who contracted a subsequent marriage while the first marriage is still
subsisting. (Bigamy)
The one who initiated the action was the second wife. Husband raised the defense that since
the first marriage is still existing at the time when he got married, the subsequent marriage is
therefore null and void.
You cannot make use of your own wrong doing as a defense for an act which is illegal.
- In order that principle would apply, the following elements must be present
1. Concealment of material fact (not merely incidental)
2. One who misrepresent has the knowledge of what the truth or the fact is
3. The person to whom the representation was made must be ignorant of such fact (if the
person to whom such fact was represented knew for a fact that it is false and yet acted
upon it, the principle would not apply)
4. That misrepresentation was intended by the other party for the person to whom he
made such representation to act upon it. (If the other did not act upon what was
misrepresented, there will be no estoppel)
- Note: prescription and laches does not run against the government
- Estoppel cannot be invoked against the government in the exercise of its sovereign power.
The latter shall not be held on estoppel for the mistake or error committed by its employee
or agent.
Reason: by public policy. If the government would be held liable under the principle, ….
- Example: under the city ordinance, vending along the sidewalk is prohibited. But every
morning or afternoon, there is a market collector. By collecting P20 from each vendor, if later
on one of this vendor is apprehended and his goods are confiscated, he cannot put up the
defense of estoppel on the part of the government.
Rule 132 Section 1- Examination of Witness

- Examination of witnesses during the trial shall be done in open court under oath under the witness
is incapable to speak or the question calls for a different mode of answer, the answer of the
witness must be given orally.
- “Must be in open court”- nobody is prohibited. The judge cannot stop anyone who would like to
attend and be present during the hearing. It is open to the public as long as you conduct yourself
with the proper decorum.
- “Must be made orally”- purpose: in order to give the court a clear view of the demeanor of the
witness. The conduct, manner on how the witness answers the question. And also to determine
the credibility of the witness.
- ”credibility of the witness”- tendency of the witness to tell the truth or to tell a lie. Can be observed
firsthand by the trial court.
- “Must be under oath”- why? In order to affect the conscience of the witness.
- Difference between oath and affirmation?
Oath- ended with a praise “so help me God”
Affirmation- merely affirms the fact that the witness will tell the truth and that he will not lie.

Example: a witness refuses to take his oath on the ground that it is against their religion. Can he
be allowed to testify as a witness?
Yes. By placing him under affirmation
- Rule: witness can testify only in the form of question and answer (1 question= 1 answer). He will
not be allowed to testify in a narrative or continuous testimony. Because allowing the witness to
testify in a narrative form will deprive the other counsel to interpose his objection because there
are matters of facts on which the witness cannot testify on.
Section 3- Rights and Obligations of a Witness

- Obligation to answer questions although such question intends to establish a claim against him.
But not when the question calls for an incriminating answer.
- When is a question incriminatory which the law prohibits or does not allow?
One that calls for a compulsory testimonial self-incrimination. You may not answer the question.
- Ordinary witness cannot refuse to take the witness stand.
- Witness should be protected from irrelevant and improper questions which are demeaning,
improper and insulting
- How to protect witness from irrelevant, improper, demeaning questions?
By interposing a timely objection.
- Once a witness is discharged, you cannot call him back. Except on grounds that would justify his
recall
Example: overlooked question: regarding damages concerning attorney’s fees
Section 4- Order of Trial

- “Trial”-held for the purpose of presenting and adducing evidence to support matters or issues
arising in the allegation which are denied by the accused
- 4 stages of examination
1. Direct- conducted by plaintiff/ proponent
2. Cross- conducted by counsel of adverse party
3. Re-direct-proponent
4. Re-cross- adverse counsel
- After?
Witness is discharged unless upon the discretion of the court you be allowed to asking questions
on matters which are important/ justifiable.
- Court may propound clarificatory questions. You do not examine the witness as if you are the
lawyer. Court will only interfere for the purpose of clarification
Direct Examination
- First stage- easiest among the stages. Because proponent has all the time to prepare what to be
answered and how to be answered
- Every question propounded by the lawyer has its purpose to establish as to constitute its case
- What to present during direct examination?
Matters which are alleged in your complaint. Or matters which consist your case
- Anything not alleged, cannot be proved.
Examination of witness during cross examination

- You cannot cross examine on matters which were never touched on during direct examination
- Scope: matters taken during direct examination and necessarily connected or issues arising
therefrom
- Function of cross examination:
Cross examiner (adverse counsel) would be propounding questions that would test the truth of
the statement made by said witness on direct examination. Also the stage where you can
propound question for the purpose of discrediting the witness by showing that his testimony or
the substance of his testimony cannot be relied upon as true. This is also the the stage that you
try to weaken or disprove matters of facts which os proven or substantiated during the direct
examination. You also propound question to test the recollection (how good is the memory of the
witness) the accuracy and honesty, truthfulness of the witness in his testimony. Also illicit the
witness on the source of the information, the motive of the party. (See book of francisco)
It is the stage in the examination of witness where you try to destroy the case that was built up by
the plaintiff through his witness by way of direct examination
- The cross examiner has only 2 objective
1. To destroy the case built up by the plaintiff/ discredit the theory that was proved by the
plaintiff
2. Destroy the witness himself (credibility and integrity of the witness- impeaching the witness)
- The right to cross examine the witness cannot be denied by the court. It is part of the due process
of the law. But there is no law that prohibits you from waiving your right to cross examine.
- What happens to a direct examination which was never subjected to a cross examination or only
part of it was cross examined?
Such testimony shall be stricken off the record. It would be unfair for the adverse party.
But if failure to cross was due to the fault of the defendant, testimony of the witness must remain
in the record of the case. It is discretionary of the court to take cognizance of it or not
Witness refuses testifying on cross, the cross examiner of the adverse party may move for the
testimony to be stricken off the record
“Striking off from the record”- deemed to have not given any testimonial evidence. But there
must be an order coming from the court
- Nature or tenor of the question during the cross examination

Direct, confrontational and leading
Allowed to propound leading questions on the assumption that the witness is not a cooperating
witness. And not given the opportunity to explain.
Example: homicide
During the direct the tenor or the substance of his testimony is that it is the victim who attacked
him, he just merely defended himself and unfortunately he was able to stab the private
complainant.
Cross: you will start the question “is it not that you are at the corner of the street waiting for the
victim before you stabbed him?” (Assume that he was the one who stabbed the victim but do not
ask why he stabbed him). “And after stabbing the victim you ran away trying to the escape from
the police”. And the knife that you used belongs to you and you were carrying it at the time of the

incident”. “If that is true, that the knife does not belong to you, did you surrender the knife?”. “If
it is true that you stabbed the victim in self defense, why did you run away?”
Example of leading question:

When you reach the pedestrian lane, you did stop the car is it not? Leading. Question that suggest
to the witness what answer does the lawyer expect from him. It is actually the lawyer who testified
the the witness stopped when he reached the pedestrian lane. The role of the witness was merely
to affirm.
- Never conduct a cross examination wherein you only make the witness to repeat the testimony
of the witness during the direct. By asking him to repeat, you are just emphasizing those matters
of facts which certainly is not favorable to your case
- What state of the examination will the proponent will have the chance to rehabilitate was what
destroyed by the cross examiner? Redirect.
Redirect
- The opportunity or time for the proponent to propound questions to his witness to enable him to
explain matters which was elicited during the cross of which he was not given that opportunity to
explain.
- To let the witness rebut and further explain and make his testimony hold again, consistent and
clear.
Re-Cross
- Purpose: to once again destroy what has been rehabilitated by the proponent during the re direct
After recross, end of the presentation of the witness.
Section 9- recall of the witness

- General: witness cannot be recalled without the leave of court (with justifiable ground)
- “Leave of court”- permission of the court. Discretionary
- Exception: rebuttal or sub-rebuttal
Section 10- Leading Questions

- When the question practically put into the mouth of the witness the answer or facts the lawyer
wants him to give.
- Not allowed during direct examination
- In all other matters, leading question may be allowed (cross examination)
- Because in cross, you will not expect the witness to be cooperative.
- When the witness is said to be a hostile witness or unwilling witness, you can ask leading
questions.
- Even if he is your witness but who turned hostile you can even cross examine him.
- Generally a proponent of a witness cannot cross examine his own witness. Because a witness is
presumed to be familiar with the truthfulness of the witness.

Except: 1. when the witness has turned hostile or has misled you or uncooperative
- You are not prohibited by law or by the rules to prove or disprove the testimony given by your
witness which is prejudicial to your case.???
- Questions which are answerable by a yes or no is considered as a leading question (general)
Except:2 when the witness lacks intelligence
Example: a child or a foreigner who does not understand English nor Filipino
Misleading questions- question which assumes a true even of not yet established. Or has not yet been
testified or proved by evidence (objectionable). Not allowed.
- When answer without objection, shall not constitute as sole basis for conviction because it has
misled the witness. And since the question is misleading, the answer could not be considered as
true or cannot be taken as true.
Impeachment of a witness
- Reason: when a person presents a witness in the witness stand, the person is presumed to be
truthful.
- When the good moral of the person has been impeached whether such impeachment did not
succeed as when there was only an attempt to show that the witness is not worthy of belief as to
his testimony, you are not allowed to introduce evidence of good moral character.
- If the credibility of the witness or integrity has not been impeached, the proponent cannot
introduce evidence of good moral character. It is only when an attempt to discredit the witness
that you are allowed to prove the good moral character
- When you impeach a witness, it simply means you discredit the witness. You put into question his
credibility
- “Credibility of a witness”- the tendency or intention of the witness to tell a the truth in his
testimony which he is about to give or has give .
- Rule: you cannot cross examine your witness. When you ask question to your witness, it must not
be phrased in a cross-examination tenor.
- Rule: you cannot impeach your own witness. Until there is such a declaration that he is a hostile
witness or has become a hostile witness or a witness who has an adverse interest.
Remedy: terminate examination and discharge witness so that the adverse counsel would not
have chance to cross examine him.
- Effect of impeachment of credibility of witness?
His testimony and facts he has established during the direct examination shall be considered
destroyed or contradicted. It losses its evidentiary value.
- How to impeach a witness? ( Section 11 Rule 132)
1. Engage him in contradiction or inconsistency- example: there must be some basis for you to
show to the court that at one time, the witness testified that the horse is black, now he is
testifying that the horse is white.

In order to engage the witness in contradiction, you have to lay the basis by letting the witness
recall or remember.
It will create an impression that he is not sure or certain of what he is testifying to. Or if not,
he has no personal knowledge.
2. Introduce evidence that the witness is a paid witness- ask question to prove that the witness
is motivated by his own interest over the subject matter of the case. Ill will, self interest, boas
or prejudice.
3. Show through your question the improbability of his testimony
- Can you impeach a witness by asking him whether what he testified is true or not (regarding a
wrongful act that he has done in the past— no case was filed)?
No.
Can you impeach a witness by asking him whether not it is a fact that he has been convicted of a
criminal case?
Yes.
Reason: a person may not at all times be ready to defend himself on a particular wrongful act he
has done before.
Section 12- a party may not impeach his own witness except when he has become hostile or unwilling.
- There must be a declaration to that effect by the court
Section 13- how to impeach the witness by his inconsistent statements

- Show him evidence and propound question on what statement is true.
Section 15- witnesses who has not testified yet in court may be asked to step out when a witness takes
the witness stand or to be excluded
- Court trial is open to everyone as long as you conduct yourself in a proper decorum.
- But the court has the authority to exclude witnesses who are not or has not testified when a
witness will be giving his testimony
- The only person that cannot be excluded is the party and the lawyer of the parties.
- 1. Witness who has not taken the witness stand
2. Cannot exclude the parties but can exclude persons who have interest on the case
3. Who does not observe proper decorum
4. When the testimony of the witness about to be given is sensitive to the decency or a testimony
which will be given a child witness. And the child witness is either the victim, the witness or the
party to the case.
- Reason (who has not yet testified): in order to prevent the witness from being influenced by the
statement of other witnesses or from the suggestion of the counsel. In order to avoid pollution or
concerted testimony.
- If the witness did not stay out of the court. The sanction would depend upon the discretion of the
court.
- Right to exclude a person does NOT apply to the party litigants, to an expert witness, witness to
be a witness on rebuttal, a representative of a party (agent by SPA)

Rule 132 Section 16
- Ordinarily, a witness cannot be coached during the direct examination. Example: while reading
the question and answer the counsel prepared. (Will be held in contempt)
- A witness can only testify on his own personal knowledge as well as based in his own recollection
(general rule)
- 2 instances where the rule allow the witness to refer to a memorandum, note or document for
purposes of giving an answer
1. Present recollection revived- an instance where a witness will be allowed to refer to a note
which note was prepared by him personally or by some other person upon his direction and
made at the time when the incident is still fresh in his mind or memory in which case the
note, memorandum will serve merely as an aid to help him recall and to enable him to give
an answer. The evidence here is testimonial. The note/memorandum referred to by the
witness in order to give an answer is NOT the evidence. It merely helped him to remember
the incident.
Example: when a police has responded to a call for a police assistance, interview witnesses,
take down notes, date , time, addressees, incident and detail or the incident.
2. Past recollection recorded-
17-18 rule 131
Examination of a child witness

- May be examined by leading questions at any stage of the trial
- The rule laid down under this Administrative memorandum applies as well in the examination of
a child either as a witness to a crime, an accused in a crime, or a victim of a crime.
- Applicable to all kinds of criminal and non-criminal or civil cases
- In a form appropriate to the developmental level of the child- adjust with respect to the use of
terms or words in a manner where it could be easily understood by the child in level to his
intelligence or maturity
- Court may exclude the public, media or persons which has no interest in the case. More so, when
the nature of the testimony of the child is so delicate as it is offensive to the decency of the general
public or would affect public morals. This can be done upon motion by the accused.
- When the child is a victim or witness only, the child through his guardian ad litem may request
that his testimony may be done outside the court. (If it can be shown that the child would not
freely and completely testify due to the presence of the accused or his counsel which could
traumatize the child. And the trauma being contemplated refers to the feeling that would impair
for the child in completely testifying the truth of the incident)
- Another way of protecting the child and testify freely: through a one way mirror.
- When a child is a witness or victim, the law allows him to testify not in open court. He may be
allowed to testify in a room with no audience except the judge who supervises the questioning or
examination of the child. If ever the examination of the child is not in open court, his testimony or
deposition shall be taken via videotape. Such proceedings shall be stenographically recorded
- Child may testify on matters which are ordinarily hearsay evidence. But under the rule, the court
may consider and take cognizance of the testimony of a child which is otherwise hearsay if the
court has a sufficient basis as shown by the circumstances that the testimony of the witness
though hearsay, it is reliable.
- Indication that the child is telling the truth:
1. No motive to lie
2. Such statement is said to be spontaneous

3. No showing that the child has a faulty recollection
- When may a child be not in court when testifying or to attend
1. When already dead
2. He is suffering from physical infirmity
3. Under traumatic experience
4. Memory loss/amnesia
5. Afflicted by some mental illness/ became insane
- Section 3: rule applicable in child abuse cases where in the defense or prosecution may not
introduce evidence to prove sexual predisposition of the victim-child where the evidence is being
presented to prove that the victim has engaged in other sexual behavior
Example: a child filed an action against the accused for act of lasciviousness. The accused in
defense could not put up a defense by proving that the woman who is the victim has a history
of having intimate relationship with other men. Such kind of evidence is prohibited even if the
purpose is to show that if ever there was such an act committed, it was because of the loose
moral character of the child. The law explicitly prohibits such kind of evidence to be introduced
in child abuse cases. “Sexual abuse shield”
- Before you introduce such kind of evidence, there shall be a preliminary investigation or hearing
with the judge in his chamber where the judge will decide whether to allow such evidence or
not. File a motion for a preliminary hearing in a chamber with regards to the evidence which will
prove previous sexual behavior or predisposition of the child victim. This is to protect the privacy
and interest of the child.
- “Confidential and privileged”- not readily available to the public to see or read or have access to
the case folder of said case. The case shall be disposed only after 5 years
(Notes ni Maree re: Child Witness)
EXAMINATION of CHILD WITNESSES
- The rule laid down under this Administrative memorandum applies as well in the examination of a
child either as a witness to a crime, an accused in a crime, or a victim of a crime.
- This rule comes into play when there is a child who is placed int he witness stand to testify on the
witness stand.
- This is applicable to all kinds of criminal and non-criminal or civil cases.
- Objective:
1. To allow the child to give a reliable and complete evidence free from any fear, threat, or
trauma.
The nature (adversarial) of the judicial system in the country is not conducive for young people
to observe and from which they are ordinarily protected. Hence, the courts came up with this
rule, to encourage the child to testify in legal proceedings and to allow the court to ascertain
the truth of the matter involved in the case.
- Child. Defined as:

1. A person below 18 years old; or
2. A person 18 years old or above who cannot protect himself brought about by (a) mental
disability, as in the case of a retardate, or (b) by a physical disability.
- Persons who a the court may allow to assist the child in his/her testimony:
a. A support person who the child may choose to accompany him or her in the witness stand. The
purpose it to provide emotional support.
b. An interpreter. There are children who can communicate but may not be understood by others.
c. A facilitator. A person who may assists the child on his/her testimony. The facilitator may be in
the form of a psychologist, psychiatrist, a guardian, a relative, or a teacher who poses the
question to the child.
- Has for its purpose to provide emotional support and to make the child feel that he is in a safe
environment.
- Testimony of a child: In a narrative form.
- The court is given a wide latitude in exercising control over the proceedings. They may disregard
certain technicalities in the proceedings (direct, cross).
- The questions should be so framed in a form appropriate to the developmental level of the child. Do
not use technical words which the child may not understand. The questions should be so framed that
it is within the level of intellect of the child.
- Where a child is a victim or a witness, the child through his guardian ad litem may apply that his
testimony be done in a separate room and be televised can be done if it can be shown that the child
cannot testify freely or may be traumatized if he testifies inside the court.
- Another way for a child to testify is through a one-way mirror where the child can see but the audience
cannot see the witness who testifies.
- When there are times that a child cannot be present to testify in open court, the law allows him to
testify not in open court. He may be allowed to testify in a separate room without audience on the
presence of the judge who supervises the examination of the child. If not done in open court, his
testimony or deposition to be given shall be taken via video cam and saved in a video tape, and such
proceedings should be stenographically recorded. These should be submitted to the court.
- The child under these circumstances may testify on what are ordinarily considered as hearsay
evidence in both criminal and non-criminal cases. Provided however, the court can ascertain the
existence of sufficient indentia or indication of reliability, or the court has sufficient basis that though
the testimony is hearsay, it is reliable.
1. It was shown that the child has no reason to tell a lie;

2. When such statement given by the child is said to be spontaneous;
3. There is no showing that the child has a faulty recollection.
- The presence of the child inside the court room may be dispensed with when he is said to be
unavailable:

1. The child is already dead;
2. He is suffering from a physical infirmity;
3. He is suffering a trauma;
4. Has lost his memory, or suffering from amnesia;
5. Has been afflicted with some mental illness.
Sexual abuse shield.
Section 3. A rule applicable in a child abuse case wherein the defense or the prosecution may not
introduce evidence of sexual free disposition of the child where the evidence is presented to prove
that the victim (child) has engaged in other sexual behavior.
Previous offenses or behavior of the child-victim may not be used as a defense.
Confidential and privileged. Not readily available to the public.
Section 19 Rule 132- public documents

- Under the law, when the document which is being presented in evidence, the rule says, to be
admissible it must be properly authenticated, identified and prove its genuineness and due
execution. (Impt)
- Except when the document is considered as a public document.
- What the law requires to be authenticated reefers only to private document
- Falsification: higher penalty if the public document is being falsified. Compared to a private
document.
- Importance: because of the reliability, trust and integrity accorded by law
- What are considered as public document:
1. Records of official acts of the sovereign authority
2. Documents which are acknowledged before a notary public. Except for notarial last will and
testament (only documents which bears the acknowledgement of a notary public shall be
considered as a public document) (if it contains a jurat, not converted to a public document.
It remains to be a private document. For purposes of admissibility of evidence, follow the
procedure of admission and identification of document)
3. Public records kept in the Philippines of private document which the law requires to be
entered into as official record (such as: death certificate, birth certificate, bar examination
paper of barristers)
- Evidentiary value of a public document:
Prima facie as to the fact therein stated. Proof enough of what is written therein.
- Also considered as evidence even against third person
- “Genuineness”- the document is said to be not spurious, it is true, it is not a counterfeit not is
it a falsified document
- “Due execution”- the document or writing has been executed out of the free will and volition
of the parties, should therefore be a voluntary act free from any vitiated consent, intimidation
or fraud. The document is said to be complete, and it has all what is necessary to consider it as
a complete document. (example: all parties signatures have been affixed)
- When the document is private, the law requires authentication aside from identification (prove
due execution and genuineness”

- How to prove due execution for purposes of authentication
1. Witness that you have to present is one who has personal knowledge and present at the
time the document was executed or prepared (the parties); or
2. Presents instrumental witness who signed as witnesses or the person of the notary
public who notarized the document
3. Anyone who saw the preparation of said document is the person who can testify and
establish die execution
4. Person with sufficient knowledge and familiarity that the handwriting or signature
belongs to a particular person
Section 50 rule 130: ordinary witness can testify as to the handwriting of the person with
whim he has sufficient familiarity
- Under the rule, public document introduced in evidence without further proof of its
genuineness and due execution
- Exception (where a private document does not require authentication to be admissible in
evidence)
1. Document is said to be an ancient document (more than 30 years old- in the face of the
document)
** Ancient document rule applies only to private document- because public document
does not need authentication. It does not become stale because of the recording in the
notarial registry.
Reason: by the age of the document itself, it proves its authenticity. On the assumption
that it is difficult to find a person who could authenticate the same. For the convenience
of the parties.
“When it is found in the custody who would naturally have in possession of said
document if it is genuine”
Assumption: the person who participated or has knowledge of the execution or
preparation of the document is already dead
Example: deed of sale
Between the buyer and the seller, the buyer would naturally have it in possession
Example: promissory note prior to the payment, the creditor.
Even if you can prove that the witness is still alive, it will not destroy the presumption
that there is no more person living to identify or authenticate and prove its due
execution and genuineness.
2. When due execution and genuineness is admitted

Example: promissory note- actionable document (rule 8 section 8: actionable document
if denied or question as to its genuineness or due execution, you have to deny it under
oath. Otherwise, it shall be deemed to have been admitted as to its genuineness and due
execution)
Or during the pre trial you presented a document and the plaintiff admit the document
(not notarized)

3. When due execution and genuineness is said to be immaterial
- Whether that document is a forgery or a falsification, that is not the issue.but it is being
presented to prove that there is such a document that exists regardless the truth or
falsity of its content
Example: drug cases
Entered into stipulation. The document is the chemistry report prepared by the
forensic chemist. To dispense with the presentation of the chemist and to testify as to
the outcome of the examination, we allow the stipulation and the usual thing that the
defense would do is that admit the existence of the examination and result and now
contained in the document.
Example: libelous publication

What presented is the document that presented the libelous writing (example:
newspaper). In order to prove publication, you have to produce a copy of the paper. In
such a case, you produce the copy for purposes of showing that the libelous writing
was indeed published in a newspaper and that constitute publication which is an
element of libel. The newspaper therefore is being presented only for the purpose of
showing that indeed it as published of which it is being circulated in a certain area.
4. Document written in foreign language must be offered together with the translation
(english or filipino).
- Who can do the translation? Any person who has the knowledge of the language. Not
necessary to be under oath.
Rule: if you have the translation, you produce your own evidence. Otherwise, the court
will consider that you agree that the translation submitted by the party is correct.
Section 24 rule 132- Proof of Official Record

- Written official records such as official bodies tribunal, local ordinances including those of any
foreign country may be proved by its official publication
- Example: official gazette: official publication of the Republic of the Philippines
- Or documents coming from the Supreme Court or any court (certification by the
clerk/custodian + dry seal of that court)
- How to prove public document
Certified copy from the register deeds (whoever has the legal custody)
- How to prove private document:
Produce the original (best evidence rule). If you cannot secure the original, result to secondary
evidence.
Section 34- Offer of Evidence

- Evidence not formally offered, as if it was never presented at all. The court cannot take cognizance
and be considered by the court
- If there was no evidence formally offered, court cannot render judgement (dismissal- due to lack
of evidence)
- Applies to both documentary and object evidence and testimonial evidence
- When making an offer, you must specify the purpose (applies to documentary and testimonial
evidence

- When to make a formal offer?
It would depend of the nature of the evidence (2 kinds of evidence being presented during trial
testimonial or documentary)
Testimonial- offered at the time when the witness is called to the witness stand to testify. Before
the witness to start testifying. This formal offer of testimonial evidence is usually made orally. You
do that on every witness placed kn the witness stand (even in judicial affidavit)
Purpose: by informing the court what the witness will testify. And to apprise the adverse party
which may or may not lead to admission.
Make a manifestation (your honor, we are presenting the witness to prove…..). Give the gist or
substance on the purpose why you are presenting the witness
Documentary or Object- after all of your witnesses has already testified. Usually being done in
writing or orally (if there are only very few).
You have describe and the purpose for which said piece of evidence is being offered. Because
without stating the purpose, it is not a complete offer of evidence.
Why are you required to state the purpose: because it is the party who has the prerogative as well
as the obligation to select and decide which evidence he consider competent to support or prove
the facts for which said piece of evidence is being presented.
Section 36- Objection

- In object/ documentary evidence, you can register your objection on 2 occasions
1. When that document is being presented in the course of the examination
2. When it is formally offered in evidence
- What is the purpose of an objection?

1. In order to prevent the testimony or documentary evidence to be part of the record
2. In order to allow the court the opportunity to rule on the objection before said document or
evidence is admitted to be part of the record of the case
3. To use it as a foundation/ basis in the event that adverse decision is rendered against you so
that you can use that on appeal as one of the assigned error
- Evidence not objected to ate deemed admitted (lack of objection).
- Testimonial evidence:
1. at the time when it is being offered
2. When the witness is already testifying in court
( as soon as the ground shall become reasonably apparent but before the witness could
testify or answer the question)
An answer given by a witness without allowing the adverse counsel to interpose his
objection will be stricken.

When the question is propounded on him, he should not immediately answer. Adverse
counsel must object after the counsel asks his question.
- Kinds of objection that are allowed under the rules

1. Formal
- When the objection is based on the defective form of the question that is
asked
- Example: “Objection your honor, leading/ compound question (duwa ang
hapot).”
1. Substantive
- When it is based on the inadmissibility of evidence.
- Such as irrelevant, immaterial, hearsay, calls for an opinion, private document
not properly authenticated
- Why should the objection be seasonable or done just in time?
To prevent smart/gullible lawyer to stipulate and speculate what will be the answer of the witness.
Lawyers should not be allowed to gamble on the answers of the witness
- Failure to object to a hearsay evidence will not give it a probative value. But the same does not
apply to relevant evidence; it will be admitted into evidence.
- Documentary:
When?
“Proper time”- when there is that formal offer of evidence by the proponent (after all the
witnesses of the part has already testified)
An objection not made at a proper time where the rule allows, it is as if no objection was made.
“Of the nature of the evidence is that it is admissible and would have been rejected had you
made an objection at a proper time”
Best evidence (secondary evidence- plaintiff failed to comply when the evidence was allowed
conditionally) - ask for the striking out of that piece of evidence
Right to interpose an objection is not a mere privilege, it is a right. Court cannot tell you to stop
objecting.
- Relevant but incompetent evidence. Husband and wife party to a case. Communication made by
one to the other in confidence is said to privileged. Cannot be compelled to disclose such. If
introduced but no one objected, while seen as incompetent, will be admissible. Privilege deemed
waived.
Section 38- Ruling

- If objection is sustained= correct; overruled= objection is wrong
- Ruling must be definite. Unequivocal. Admit or disallow. Sustain or overrule. No middle ground.
Ruling must be such that it will dispose of the issue and parties not left hanging in the air.
- If in doubt, allow the evidence.
Section 39- Striking out answer

- Whether correct or wrong, an answer cannot be simply be stricken off the record
- Answers stricken off the record, are for legal intent and purpose considered as if it did not exist at all

- Occasions when answers may be stricken out
1. Answers given prematurely. Answers should be made seasonably (see notes above)
Failure of the counsel to pose seasonable objection will constitute a waiver of the right to
make an objection.
2. Where the evidence is admitted conditionally and the counsel, later on fails to comply with
the condition by his failure to support the connection or relevancy of said testimony or
evidence based on the condition.
3. When the answer given is not responsive to the question.
Section 40- Tender of excluded evidence

- A document or evidence cannot be simply attached to the record unless admitted—admitted as
offered.
- This evidence may be an object, documentary, or a testimony rejected by the court either upon behest
of the court because the court believes it is immaterial, irrelevant, and unnecessary.
- Old rule: The usual remedy of a lawyer whose evidence has been excluded, disallowed or rejected by
the court when offered, which piece of document the lawyer believes is material to his case, is to bring
the issue or matter to the Supreme Court by way of certiorari. This is in order for the highest court to
rule on the ruling of the lower courts.—this usually will take the case into a stand still: the case is left
pending or in abeyance.
In order to avoid this situation, unnecessary expenses, etc, a new rule has been promulgated.
- Tender of excluded evidence may come in two forms:
1. Offer of proof. Where the evidence is testimonial.

2. Profer. Where the evidence excluded is documentary.
- What is meant by offer of proof and profer?
Answer: These are the methods provided for by the rule on evidence of preserving into the record of
the case the evidence consisting of testimony. Documents and/or object evidence which was excluded
by the court because in the mind of the court, said piece of evidence is irrelevant, immaterial, or
inadmissible with the crew that on appeal, the appellate court could review or pass upon the propriety
or impropriety of the disallowance or exclusion of said piece of evidence by the trial court.
In real practice, when the court has ruled that the document which is adduced consisting of a document
or an object which the court ruled inadmissible, the necessary manifestations should be made in order
for the court to make an order to have such document or evidence attached to the records.
If this rule has not been availed of, said document cannot be attached to the record without the
permission of the court. Since this has not been availed of, the appealing court will never have the
opportunity to examine or see for themselves why the evidence has been excluded.
- When evidence are of equal level, there is an equiponderance of evidence. In equal points
- Effect: The party who holds the affirmative, the party who has the burden of proof—in Civil case, loses
the case. Because there was no change brought about by the evidence of the plaintiff.

What would be the decision of the court? Dismissal for the reason of insufficiency or lack of evidence.
- How preponderance of evidence is determined in civil cases
Strong, overwhelming evidence- when the court is swayed by the evidence
Based on logic, common sense, based on day to day experience. Based on that, legal maxims
are made which serves as our guide to determine whether the evidence is true, sufficient to
prove the facts for which it is being offered.
- Testimonies/ evidence should be weight, not numbered. It is not the number of witnesses which
determines the outcome, it is the weight of his testimonies, taking into account the credibility of such
testimony.
- Written evidence is more superior than oral evidence.
- When it comes to conflicting testimonies, it is the duty of the court to consolidate the evidence. Or
even to reject those which it finds as irrelevant
- For a criminal case, the quantum of poof needed is proof beyond reasonable doubt. It is the degree
of evidence which produces a conviction to a reasonable, unbiased mind. Required only moral certainty
which excludes the possibility of error. Moral certainty therefore is certainty that satisfies the reason
and conscience of those who act upon it.
- Even the strongest motive to inflict upon another mortal wounds would not be considered as proof
beyond reasonable doubt if there is no evidence supporting such suspicion.
- The prosecution must rely on its own evidence not upon the weakness of the evidence of the defense
1. The law set forth what quantum of evidence the prosecution should adduce in order for it
to be entitled to a conviction—proof beyond reasonable doubt
2. Unless the prosecution adduced the evidence set forth by law, the legal presumption of
innocence remain to not have been controverted
3.
Rule 133- Weight and Sufficiency of Evidence

Section 1- Preponderance of Evidence, how determined
- In civil cases, the quantum of evidence required by the rules so that a party maybe entitled to
favorable judgment is preponderance of evidence.
In criminal cases, the quantum of evidence required in order to be a valid conviction is proof beyond
reasonable doubt.
Where the case is administrative in nature tried before an administrative body, the quantum of proof
required is substantial evidence.
The quantum of evidence which lies between proof of reasonable doubt and preponderance of
evidence is clear and convincing evidence.

“Preponderance of Evidence”
- superiority of weight
- is synonymous to evidence which is overwhelming.
- that kind of evidence which as a whole, adduced by one party is more superior to that of the
evidence adduced by the adverse party. The weight of evidence of one is greater than the
weight of evidence produced by the other party.
- Evidence produced by one outweigh the evidence of the other. The quantum of evidence required by
law is already attained when the equilibrium of proof is already destroyed.
- There is no particular degree of measurement of weight of evidence.
- Principles:
1. Witnesses are to be weighted and not numbered.

2. Evidence should not only be strong, but also sufficient.
- For civil cases, the defendant is required only to present evidence which will neutralize the evidence
presented by the plaintiff
- For criminal cases, the accused should produce
- When it comes to self-defense, the quantum of proof required is clear and convincing evidence. The
intermediate quantum of evidence between proof beyond reasonable doubt and preponderance of
evidence. As long as all the elements of self-defense are present and the proof required is one that is
clear and not doubtful as to its veracity, possibility that it convinces the mind of the court, the accused
should be entitled to acquittal, otherwise if he fails to adduce the required evidence, conviction should
follow.
- “Equipoise”- The evidence of the plaintiff and the evidence of the defendant are on equal level.
Hence, the verdict will be that the plaintiff losses, and the case will be dismissed. In this particular
situation, the plaintiff and the defendant are in the same position as when the case has started. (Status
quo)—-the plaintiff was not able to comply with his duty to produce evidence which is
preponderance of evidence to be entitled to a favorable judgment.
Section 3- Extrajudicial Confession

- You must introduce independent evidence to corroborate with the extrajudicial confession.
- “Corpus Delicti”- body of the crime. Consists of sets of facts which prove that the crime was
committed. Acts that establish that in fact, a crime was committed. The actual commission of the crime
by the accused through a particular act constituting a felony. May refer to subject of the crime of the
visible effect of the crime. Different from substance of the crime.
Example: drug Peddling. Corpus Delicti is drug itself

- Elements of Corpus Delicti:
1. Result- dead body in homicide. Ruins, in a crime of arson
2. Particular act of person which constitutes a crime- a wound on the cadaver, caused by an
act which is felonious
- no body no crime. No gun, no crime?

False. Even without the body, as long as somebody can establish the fact how the person was
killed and how the body was disposed of. Body of corpus delicti is the fact that was testified by
the witness of their account as to how the crime was committed.
- The weapon used in killing or taking the life of the person is not an element in the crime of homicide.
It is used to prove who committed the crime, not the existence of the crime.
Extrajudicial Confession
- Must be established by evidence other than the confession of the accused/ witness.
- Independent evidence must be presented to corroborate such.
- “Independent Evidence”- evidence that would establish the facts as contained in the confession
- must be corroborated by the corpus delicti, without which there can be no conviction on the basis of
the extrajudicial confession
- Reason: In order to prevent false confession which the police usually obtain through torture or
violence. Also, on the theory that if indeed the confession is true, there would be no problem in
presenting an independent evidence.
Example: death by poison can be proven by presenting the medico legal who conducted the autopsy
“Confession”- highest form of evidence that may be used against the confessant
Confession made judicially

- requires no further proof and accused may immediately be sentenced on the theory that a confession
is a direct acknowledgment of guilt.
Section 4- Circumstantial Evidence

- has reference to series of facts other than the fact in issue. From these series circumstances, we can
make an inference and arrive at a conclusion.
- Must be likened to a rope. Clear evidence rule applies
- Requisites of a circumstances to be sufficient
1. There must be more than one circumstance- must be a chain of circumstance, one after the
other.
2. Clear evidence rule applies
Section 5- Substantial Evidence

- “Substantial Evidence”- that amount of relevant evidence which a reasonable mind might accept as
sufficient to support a conclusion.
- What is important is that it is acceptable by reason (with basis)
- Not necessary that a substantial evidence must be such that it is overwhelming or preponderating
evidence. It is enough as long as it could afford as a substantial basis for which the fact in issue can be
reasonably inferred.
Section 7- Evidence on Motion

- There are instances where we file a motion in court such as motion to dismiss or demurer to evidence.
- Evidence can be presented to prove or establish facts necessary to have a favorable ruling motion

Rule 134- Perpetuation of testimony
- When resorted to?
When there is a danger of losing that person when you are to use him or has information useful
to you in a case which is pending or a case that you are to file or cannot yet commence or start.
- How?
File a petition for perpetuation of testimony to allow you to take deposition.
- Proceeding: Summary in nature
*written interrogatories/oral
- When availed of:
1. During pendency of action for fear of losing him at the time you would present him
2. Pending appeal
3. For a case to be filed in some future time
- Different from mode of discovery under Rule 23
- Rule 134 is for the purpose of preserving. May not be utilized to acquire information or facts to form
a complaint or use a defense.
- Probative value of testimony perpetuated under Rule 134:
Since it contains merely facts, it does not prove the existence of a right. It is not an assertion
of a right. It is more of a fact gathering.
- Whatever facts that you have secured from the witness from the perpetuation of the testimony is not
binding upon the court. It is not conclusive proof of what he has stated in his testimony. But when not
objected to when offered, it is considered prima facie evidence of the fact referred to in his deposition.
- Can be done through a Judicial Affidavit for purposes of presenting the perpetuated testimony of the
person
“Being well prepared is a better substitute to knowledge”

- Judge Manuel Rosales

Evidence Notes Final 1

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Evidence Notes Final 1

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Evidence

*facts arises from pleadings filed in court or complaint

*issues arises when there is denial by the adverse party

1. Factum Probandum- Ultimate facts (facts sought to be established)

2. Factum Probands- evidentiary facts which establishes fact sought to be proved

2 Principal problem encountered

1. Which piece of evidence is admissible

2. How to present it in a manner that it will be admitted once it is offered

*Is evidence synonymous with proof? No.

E: facts which tends to convince

WKOH (Evidence Notes)

- proves a proposition without relying on any interference

- if shown to be true, is conclusive

II. Indirect/ Circumstantial

Material Evidence- prove the facts as you claim it

Relevant Evidence- *book* (always consider: what is the issue?)

Murder: irrelevant and immaterial (issue is death)

InfanticideL Relevant. Proves relationship and age

Competent Evidence- no rule or law that prohibits the evidence to be presented

Admissibility of evidence: Relevant + Competent

> Hearsay- merely heared/ communicated to the other

- NOT allowed, no evidentiary value because witness has no personal knowledge

> Marital Disqualification-in order to preserve harmony of marriage

> Unreasonable searches and seizure

WKOH (Evidence Notes)

- both are additional evidence

Cu: same stale of facts

WKOH (Evidence Notes)

- have the evidence be stricken off the record

-inadmissible because the counsel failed to comply with his undertaking.

- admitted to cure an evidence which was improperly admitted/ erroneously admitted.

> court overruled

> counsel will counteract the irrelevant evidence.

2 Concepts (relevant because it is)

- Important/Necessary to prove the issue of the case

-Probativeness/ provative value of the piece of evidence

Example: Case of rape

WKOH (Evidence Notes)

“it varies on decree of relevancy”

- the nearer has greater relevancy (logic and reason)

WKOH (Evidence Notes)

1. matters of facts which can be taken by judicial notice-

h >matters which are beyond question or no longer disputable

a. of public knowledge- notorious or well known by a great number of persons.

Test: whether it is well known or notoriously known to a great number of

b. capable of unquestionable demonstration- can be easily verified or

(example: time of sunrise at a particular day)—professional or scientific

WKOH (Evidence Notes)

*Is a personal knowledge be considered as judicial knowledge? No.

- When judicial notice can be made/ invoked:

*after trial but before judgement

* even if already on appeal but before finality of judgement on appeal

2. which were judicially admitted

“admission”- an acknowledgement of existence or truth of the fact in dispute material to the

admission v confession: confession is an acknowledgement of guilt. In admission, there is

Different kinds of admission:

1. Judicial- pleadings (complaint, answer, counter-claim, bill of particulars, pre-trial

WKOH (Evidence Notes)

In an extrajudicial admission, it is disputable. Meaning, in the absence of any contrary evidence,

*Nature of admission in superseded proceedings

- considered as extrajudicial admission

- No. Because it is allowed by law and cannot be used as evidence. (crim)

- No. denial of the accused to confront his accuser

Relevant Evidence- book (always consider: what is the issue?)