Evidence

EVIDENCE The result or effect of The medium or means by

evidence (Jones on which a fact is proved or
evidence, Volume 1, disproved.
GENERAL PRINCIPLES Fourth Edition, 4, p.5).
Bare allegations
unsubstantiated by
evidence, are not
CONCEPT OF EVIDENCE
equivalent to proof.
(Domingo v. Robles, G.R.
Evidence is the means, sanctioned by the Rules of Court,
No. 153743, March 18,
of ascertaining in a judicial proceeding the truth
2005)
respecting a matter of fact (Sec. 1, Rule 128).
FACTUM PROBANS vs. FACTUM PROBANDUM
NOTE: Evidence is only the means of ascertaining the
truth of a matter of fact. The truth would depend upon the
Factum Probandum Factum Probans
evidence admitted in Court in accordance with the rules.
The fact or proposition to The facts or material
SCOPE OF THE RULES ON EVIDENCE be established evidencing the fact or
proposition to be
Applicability of the Rules on Evidence established.
The fact to be proved, the The probative or
The rules of evidence, being part of the Rules of Court, fact which is in issue and evidentiary fact tending
apply only to judicial proceedings. (Sec. 1, Rule 128) to which the evidence is to prove the fact in issue.
directed.
NOTE: The Rules of Court shall not apply to: (NICOLE) Ultimate Facts Intermediate or
evidentiary facts
1. Naturalization Proceedings; Hypothetical Existent
2. Insolvency Proceedings;
3. Cadastral Proceedings; Illustration: If P claims to have been injured by the
4. Other cases as may be provided by law; negligence of D who denies having been negligent, the
5. Land Registration cases; and negligence is the fact to be established. It is the factum
6. Election cases probandum. The evidence offered by P constitutes the
material to prove the liability of D. The totality of the
Except by analogy or in a suppletory character and evidence to prove the liability is the factum probans
whenever practicable and convenient. (Sec. 4, Rule 1) (Riano, 2016).

Principle of Uniformity ADMISSIBILITY OF EVIDENCE

As a general policy, the rules of evidence shall be same in Requisites for Admissibility of Evidence
all courts and in all trials and hearing. (Sec. 2, Rule 128)
1. The evidence is relevant to the issue; and
EVIDENCE IN CIVIL CASES
vs. EVIDENCE IN CRIMINAL CASE NOTE: It is relevant if “it has such a relation to the
fact in issue as to induce belief in its existence or non-
Evidence in Civil Case Evidence in Criminal existence” (Sec. 4, Rule 128).
Case
The party having the The guilt of the accused 2. The evidence is not excluded by the rules
burden of proof must has to be proven beyond (competent).
prove his claim by a reasonable doubt.
preponderance of (Sec. 1, Rule 133) NOTE: Competency is determined by the prevailing
evidence. exclusionary rules of evidence.
(Sec. 1, Rule 133)
An offer of compromise is The same may be Relevancy is an affair of logic, human experience and
not an admission of any received in evidence as an common sense while competency is determined by
liability, and not admission of guilt except law.
admissible in evidence those involving quasi-
against the offeror. offenses (criminal Illegally obtained evidence cannot be admitted
(Sec. 27, Rule 130) negligence) or those because they are the “fruit of the poisonous tree”.
allowed by law to be Examples of illegally obtained evidence are evidence
compromised. obtained without a valid search warrant (this is
(Sec. 27, Rule 130) however subject to exceptions) (Under Section 3 (2),
Article III of the 1987 Constitution) (2010 Bar)
PROOF vs. EVIDENCE
NOTE: This section could also be the answer to the
Proof Evidence question on the “two kinds of objection” that is the
objection that the evidence is not relevant to the

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 REMEDIAL LAW
issue and secondly that is excluded by the rules (Rule
128, Sec. 3)
RELEVANCE OF EVIDENCE
AND COLLATERAL MATTERS
Relevancy of Evidence
Evidence must have such a relation to the fact in issue as
to induce belief in its existence or non-existence. (Sec. 4,
Rule 128)
Collateral matters
GR: Evidence on collateral matters is not allowed.
XPN: Evidence on collateral matters shall be allowed
when it tends in any reasonable degree to establish the
probability or improbability of fact in issue.
Illustration: Although evidence of character is generally
inadmissible (Sec. 51, Rule 130), the accused may prove
his good moral character which is pertinent to the moral
trait involved in the offense charged. (Sec. 51(a)(1), Rule
130)
MULTIPLE ADMISSIBILITY
Where the evidence is relevant and competent for two or
more purposes, such evidence should be admitted for any
or all purposes for which it is offered provided it satisfies
all the requirements of law for its admissibility therefor.
(Regalado, 2008)
Illustration: Thus, depending upon circumstances, the
declaration of a dying person may be admissible for two
or more purposes. It may be offered as a dying declaration
under Sec. 37 of Rule 130, as part of res gestae under Sec.
42 of Rule 130. The statement by a bus driver immediately
after the collision that he dozed off in the wheel while
driving may be admissible as an admission under Sec. 26
of Rule 130 or as part of res gestae pursuant to Sec. 42 of
Rule 130.
CONDITIONAL ADMISSIBILITY
Where the evidence at the time of its offer appears to be
immaterial or irrelevant unless it is connected with the
other facts to be subsequently proved, such evidence may
be received on condition that the other facts will be
proved thereafter, otherwise the evidence already given
will be stricken out (Regalado, 2008).
CURATIVE ADMISSIBILITY
It allows a party to introduce otherwise inadmissible
evidence to answer the opposing party’s previous
introduction of inadmissible evidence if it would remove
any unfair prejudice caused by the admission of the
earlier inadmissible evidence. (Adams v. Burlington N. R.R.
Co., 865 S.W. 2d 748, 751 (Mo. App. 1993))
Thus, a party who first introduces either irrelevant or
incompetent evidence into the trial cannot complain of
the subsequent admission of similar evidence from the
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adverse party relating to the subject matter
(Commonwealth v. Alexander, K., 5 S.W. rd104, 105 (1999),
citing Dunaway v. Commonwealth, 239 Ky. 166, 39 S.W. 2d
242, 243 (1931); Smith vs. Commonwealth, Ky., 904 S.W. 2d
220, 222 (1995)). Conversely, the doctrine should not be
invoked where evidence was properly admitted.
DIRECT AND CIRCUMSTANTIAL EVIDENCE
Direct Evidence proves a fact without the need to make an
inference from another fact (Riano, 2016).
Circumstantial Evidence or indirect evidence proves a fact
in issue indirectly through an inference which the fact
finder draws from the evidence established. (People v.
Matito, G.R. No. 144405, February 24, 2004)
CUMULATIVE EVIDENCE AND
CORROBORATIVE EVIDENCE
Cumulative evidence refers to evidence of the same kind
and character as that already given and that tends to
prove the same proposition. (Wyne v. Newman, 75 Va.,
811, 817)
Corroborative evidence is one that is supplementary to
that already given tending to strengthen or confirm it. It
is additional evidence of a different character to the same
point (Edwards v. Edwards, Tenn. App., 501 S.W. 2d 283.
289).
POSITIVE AND NEGATIVE EVIDENCE
Positive Evidence exists when the witness affirms in the
stand that a certain state of facts does not exist or that a
certain event happened.
Negative evidence exists when the witness states that an
event did not occur or that the state of facts alleged to
exist does not actually exist. (Riano, 2016)
Greater probative value is given to evidence that is
positive in nature than that which is accorded to evidence
that is negative in character. (Republic vs Bautista, G.R. No.
169801, September 11, 2007)
NOTE: When a witness declares of his personal
knowledge that a fact did not take place that is actually
positive testimony since it is an affirmation of the truth of
a negative fact. (Regalado, 2008)
Denial as negative evidence
A denial is negative evidence. It is considered by the Court
to be a very weak form of defense and can never overcome
an affirmative or positive testimony particularly when the
latter comes from the mouth of a credible witness. (People
v. Mendoza, G.R. No. 146693-94, July 31, 2003)
COMPETENT AND CREDIBLE EVIDENCE
Competent evidence is one that is not excluded by law in
a particular case. If the test of relevance is logic and
common sense, the test of competence is the law or the
 Evidence
rules. Competence, in relation to evidence in general, doubt on which side the evidence preponderates (or
refers to eligibility of an evidence to be received as such. weighs more heavily) (Rivera v. Court of Appeals January
23, 1998.)
ADMISSIBLE EVIDENCE AND
CREDIBLE EVIDENCE It is based on the principle that no one shall be deprived
of his life, liberty or property without due process of law
Evidence is admissible when it is relevant to the issue and (Sec. 1, Art III, Constitution of thr Philippines.)
is not excluded by the law or rules. (Sec. 3, Rule 128)
PRESUMPTIONS
NOTE: Admissible evidence is not necessarily credible
evidence. Admissibility does not guarantee credibility. These are inferences of the existence or non-existence of
(Riano, 2016) a fact which courts are permitted to draw from the proof
of other facts. (In the matter of the Intestate Estates of
Credibility refers to worthiness of belief, that quality Delgado and Rustia, G.R. No. 175733, January 27, 2006)
which renders a witness worthy of belief. (Black’s Law
Dictionary, 5th Ed., p.330) NOTE: A presumption shifts the burden of going forward
with the evidence. It imposes on the party against whom
BURDEN OF PROOF it is directed the burden of going forward with evidence
AND BURDEN OF EVIDENCE to meet or rebut the presumption (Bautista, 2004, citing
Mueller and Kirkpatrick, §3.4.)
Burden of proof Burden of evidence
Burden of proof or “onus Burden of evidence is that Presumption vs. Inference
probandi” traditionally logical necessity which
refers to the obligation of rests upon a party at any Presumption Inference
a party to the litigation to particular time during the It is mandated by law and It is a factual conclusion
persuade the court that trial to create a prima establishes a legal that can rationally be
he is entitled to relief facie case in his favor or to relation between or drawn from other facts
overthrow one created among the facts. (Riano, 2016).
against him.
Duty of a party to present Duty of the party to go Is a deduction directed by It is a permissive
evidence to establish his forward with the law. deduction (Francisco,
claim or evidence by the evidence to overthrow 1996).
amount of evidence the prima facie evidence
required by law, which is against him. (Bautista v. Effect of presumption
preponderance of Sarmiento, G.R. No. L-
evidence in civil cases. 45137, September, 23, A party in whose favor the legal presumption exists may
(Supreme Transliner, Inc. 1985) rely on and invoke such legal presumption to establish a
v. CA, G.R. No. 125356, fact in issue. One need not introduce evidence to prove the
November 21, 2001) fact for a presumption is prima facie proof of the fact
Does not shift and The burden of going presumed. (Diesel Construction, Inc v. UPSI Property
remains throughout the forward with the Holdings, Inc., G.R. No. 154937, March 24, 2008)
entire case exactly where evidence may shift from
the pleadings originally party to party as the Presumption of law vs. Presumption of fact
placed it. exigencies of the trial
require. (Chamberlayne, Presumption of Law Presumption of Fact
Sec. 203, 108, 169) (Praesumptiones Juris) (Praesumptiones
Generally determined by Generally determined by Hominis)
the pleadings filed by the the developments of the It is a deduction which the It is a deduction which
party. trial, or by the provisions law expressly directs to be reason draws from the
of substantive law or made from particular facts. facts proved without an
procedural rules which express direction from
may relieve the party law to that effect.
from presenting evidence
on the facts alleged. A certain inference must be Discretion is vested in the
made whenever the facts tribunal as to drawing the
Test for determining where the burden of proof lies appear which furnish the inference.
basis of the inference.
Ask which party to an action or suit will fail if he offers no
evidence competent to show the facts averred as the basis Reduced to fixed rules and Derived wholly and
for the relief he seeks to obtain. forms a part of the system of directly from the
jurisprudence circumstances of the
Equipoise rule or equiponderance doctrine particular case by means
of the common
The Equipoise Doctrine refers to a situation where the experience of mankind
evidence of the parties is evenly balanced, or there is

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 REMEDIAL LAW
Need not be pleaded or Has to be pleaded and
proved if the facts on which proved
they are based are duly
averred and established
Kinds of presumptions of law
1. Conclusive presumptions (presumptions juris et de
jure);
2. Disputable presumptions (presumptions juris
tantum) (Rule 131; Regalado, 2008)
CONCLUSIVE PRESUMPTIONS
These are presumptions which are irrebuttable and any
evidence tending to rebut the presumption is not
admissible. This presumption is in reality a rule of
substantive law. (Riano, 2016)
Classes of conclusive presumptions
1. Estoppel in pais (Equitable Estoppel) – Whenever a
party has, by his own declaration, act or omission,
intentionally and deliberately led another to believe
a particular thing to be true, and to act upon such
belief, he cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify it
(Sec. 2, (par. a), Rule 131);
2. Estoppel by deed – A party to a property deed is
precluded from asserting, as against another party to
the deed, any right or title in derogation of the deed,
or from denying the truth of any material fact
asserted in the deed e.g. The tenant is not permitted
to deny the title of his landlord at the time of the
commencement of the relation of landlord and
tenant between them. (Sec. 2 (par. b), Rule 131)
NOTE: Estoppel may attach even though the landlord
does not have title at the commencement of the
relations. It may inure in favor of the successor
(Golden Horizon Realty Corporation vs. St Chuan, G.R.
No. 145416, September 21, 2001, citing Geminiano vs.
CA, July 24, 1996). If the title asserted is one that is
alleged to have been acquired subsequent to the
commencement of that relation, the presumption
will not apply. (Santos vs. NSO, G.R. No. 171129, April
6, 2011)
Distinguish estoppel from waiver
A waiver is a voluntary and intentional abandonment or
relinquishment of a known right. It must be supported by
an agreement founded upon a valid consideratipn. An
equitable estoppel may arise however, in the absence of
any intention on the part of the person estopped to
relinquish or change any existing right, and it need not be
supported by any consideration, agreement, or legal
obligation. (Francisco, 1996)
Basis of Estoppel in pais
It is founded upon principles of morality and fair dealing
and is, intended to promote the ends of justice. It always
presupposes error on one side and fault or fraud upon the
other and some defect of which it would be equitable for
300
the party against whom the doctrine is asserted to take
advantage. (19 Am. Jur. 640-642; Francisco, 1996)
Effect of estoppel in pais
The effect of an estoppel in pais, is to prevent the assertion
of what would otherwise be an unequivocal right or to
preclude what would otherwise be a good defense. Such
estoppel operates always as a shield, never as a sword.
Requisites of estoppel in pais
1. Conduct amounting to false representation or
concealment of material facts; or at least calculated
to convey the impression that the facts are otherwise
than, and inconsistent with, those which the party
subsequently attempts to assert;
2. Intent, or at least, expectation, that this conduct shall
be acted upon by, or at least influence, the other
party; and
3. Knowledge, actual or constructive, of the real facts.
(Riano, 2016)
Requisites for estoppel
1. Lack of knowledge and of the means of knowledge of
the truth as to the facts in question;
2. Reliance, in good faith, upon the conduct or
statements of the party to be estopped; and
3. Action or inaction based thereon of such character as
to change the position or status of the party claiming
the estoppel, to his injury, detriment or prejudice.
(Kalalo v. Luz, G.R. No. L-27782, July 31, 1970)
Other forms of estoppel akin to estoppel in pais:
1. Estoppel by silence - where a person, who by force of
circumstances is under a duty to another to speak,
refrains from doing so and thereby leads the other to
believe in the existence of a state of facts in reliance
on which he acts to his prejudice. Silence may
support an estoppel whether the failure to speak is
intentional or negligent (Pasion vs. Melegrito, G.R. No.
166558, March 28, 2007);
2. Estoppel by laches – is unreasonable delay to seek or
to enfore a right at a proper time. A neglect to do
something which one should do or to seek to enforce
a right at a proper time;
3. Promissory estoppel- may arise from the making of a
promise, even though without consideration, if it was
intended that the promise should be relied upon and
in fact relied upon, and if a refusal to enforce it would
be virtually to sanction the perpetration of fraud or
would result in other injustice;
4. Estoppel on question of jurisdiction – A party is barred
from assailing the legality of an order issued at his
own motion since a person cannot be allowed to take
advantage of his own wrong when such would work
substantial injury to the other party. (21 C.J. 1152,
Francisco, 1996)
Estoppel by deed
The doctrine is founded in public convenience and policy,
because it tends to encourage honesty and good faith
 Evidence
between landlord and tenant. (32 Am. Jur. 109; Francisco,
1996)
Requisites of estoppel by deed
1. The recitals should be clear and unambiguous;
2. There should be distinct and precise admission of
facts;
3. The deed must be delivered; and
4. That it must be a valid instrument. (Francisco, 1996)
DISPUTABLE PRESUMPTIONS
Those which are satisfactory if uncontradicted, but may
be contradicted and overcome by other evidence. (Sec. 3,
Rule 131)
Disputable presumptions under Section 3, Rule 131
1. Lack of knowledge and of the means of knowledge of
the truth as to the facts in question;
NOTE: It applies to both civil and criminal cases.
Presumption of innocence of the accused
accompanies him until the rendition of judgment and
disappears after conviction, such that upon appeal,
the appellate court will then presume the guilt of the
accused. The prosecution’s case must rise and fall on
its own merits and cannot draw strength from the
weakness of the defense. (People vs. Mingming, G.R.
No. 174195, Dec. 10, 2008)
2. Unlawful act is done with an unlawful intent;
3. Person intends the ordinary consequences of his
voluntary act;
4. Person takes ordinary care of his concerns;
NOTE:
GR: All people are sane and normal and moved by
substantially the same motives. When of age and
sane, they must take care of themselves. Courts
operate not because one person has been defeated or
overcome by another but because that person has
been defeated or overcome illegally. There must be a
violation of the law. (Vales v. Villa, G.R. No. 10028,
December 16, 1916)
XPN: When one of the parties is unable to read or if
the contract is in a language not understood by him,
and mistake or fraud is alleged, the person enforcing
the contract must show that the terms thereof have
been fully explained to the former. (Art. 1332, NCC)
5. Evidence willfully suppressed would be adverse if
produced;
Requisites:
a. The evidence is material;
b. The party had the opportunity to produce it; and
c. The evidence is available only to the said party.
The presumption will not be applicable when:
301
a. Suppression of evidence is not willful;
b. Evidence suppressed or withheld is merely
corroborative or cumulative;
c. Evidence is at the disposal of both parties; and
d. Suppression is by virtue of an exercise of
privilege.
NOTE: Failure of the prosecution to present a certain
witness and to proffer a plausible explanation does
not amount to willful suppression of evidence since
the prosecutor has the discretion/prerogative to
determine the witnesses he is going to present.
(People v. Jalbuena, G.R. No. 171163, July 4, 2007)
6. Money paid by one to another was due to the latter;
7. Thing delivered by one to another belonged to the
latter;
8. Obligation delivered up to the debtor has been paid;
9. Prior rents or installments had been paid when a
receipt for the later ones is produced;
10. A person found in possession of a thing taken in the
doing of a recent wrongful act is the taker and doer
of the whole act; otherwise, that things which a
person possesses or exercises acts of ownership
over, are owned by him;
NOTE: In order to raise the presumption, the
following must be proved:
1. That a crime was committed;
2. That it was committed recently;
3. That the stolen property was found in the
possession of the defendant; and that the
defendant is unable to explain his possession
satisfactorily. (U.S. v. Espia 16, G.R. No. L-5813,
August 27, 1910)
11. That a person in possession of an order for the
payment of the money, or the delivery of anything,
has paid the money or delivered the thing
accordingly;
12. Person acting in public office was regularly
appointed or elected to it;
Ratio: It would cause great inconvenience if in the
first instance strict proof were required of
appointment or election to office in all cases where it
might be collaterally in issue.
NOTE: However, the presumption of a regular
appointment does not apply to a public officer
seeking to recover salary attached to the office, or the
benefits of a pension system. (31 C.J.S, 787-788)
13. Official duty has been regularly performed;
NOTE: All things are presumed to have been done
regularly and with due formality until the contrary is
proved (Omnia praesumuntur rite et solemniter esse
acta donec probetur in contrarium). This
presumption extends to persons who have been
appointed pursuant to a local or special statute to act
in quasi-public or quasi-official capacities and to
professionals like lawyers and surgeons.
 REMEDIAL LAW
GR: Presumption applies to both civil as well as
criminal cases.
XPNs:
a. Petition for writ of amparo – presumption may
not be invoked by the respondent public officer
or employee (Rule on the Writ of Amparo, A.M.
No. 17-9-12-SC);
b. The presumption does not apply during in-
custody investigation (People vs. Camat, G.R. No.
112262, April 2, 1996);
c. When the official conduct in question is
irregular on its face (People v. Obmiranis, GR. No.
181492, December 16, 2008)
14. A court or judge acting as such, whether in the
Philippines or elsewhere, was acting in the lawful
exercise of jurisdiction;
NOTE: Lawful exercise of jurisdiction is presumed
unless the record itself shows that jurisdiction has
not been acquired or the record itself shows the
absence of jurisdiction.
15. All the matters within an issue raised in a case were
laid before the court and passed upon by it;
16. All matters within an issue raised in a dispute
submitted for arbitration were laid before
arbitrators and passed upon by them;
17. Private transactions have been fair and regular;
18. Ordinary course of business has been followed;
19. There was a sufficient consideration for a contract;
20. Negotiable instrument was given or indorsed for a
sufficient consideration;
21. An endorsement of negotiable instrument was made
before the instrument was overdue and at the place
where the instrument is dated;
NOTE: Except where an endorsement bears date
after the maturity of the instrument, every
negotiation is deemed prima facie to have been
effected before the instrument was overdue. (Sec. 45,
Act. No. 2031)
22. A writing is truly dated;
23. Letter duly directed and mailed was received in the
regular course of the mail;
NOTE: For this presumption to arise, it must be
proved that the letter was properly addressed with
postage pre-paid and that it was actually mailed.
24. Presumption of Death;
a. Absence of 7 years – It being unknown whether,
the absentee still lives, he shall be presumed
dead for all purposes, except for those of
succession;
b. Absence of 10 years – The absentee shall be
considered dead for the purpose of opening his
succession only after an absence of 10 years;
and if he disappeared after the age of 75,
absence of only 5 years is sufficient;
c. The following shall be considered dead for all
purposes including the division of estate among
302
the heirs:
i. Person on board a vessel lost during a sea
voyage, or an aircraft which is missing, who
has not been heard of for 4 years since the
loss of the vessel or aircraft;
ii. Member of the armed forces who has taken
part in armed hostilities, and has been
missing for 4 years;
iii. Person who has been in danger of death
under other circumstances and whose
existence has not been known for 4 years;
iv. If a married person has been absent for 4
consecutive years, the spouse present may
contract a subsequent marriage if he or she
has well-founded belief that the absent
spouse is already dead; 2 years in case of
disappearance where there is danger of
death under the circumstances
hereinabove provided. Before marrying
again, the spouse present must institute a
summary proceeding as provided in the
Family Code and in the rules for declaration
of presumptive death of the absentee,
without prejudice to the effect of re-
appearance of the absent spouse.
25. Acquiescence resulted from a belief that the thing
acquiesced in was conformable to the law or fact;
26. Things have happened according to the ordinary
course of nature and ordinary habits of life;
27. Persons acting as co-partners have entered into a
contract of co-partnership;
28. A man and woman deporting themselves as husband
and wife have entered into a lawful contract of
marriage;
29. Property acquired by a man and a woman who are
capacitated to marry each other and who live
exclusively with each other as husband and wife
without the benefit of marriage or under void
marriage, has been obtained by their joint efforts,
work or industry;
30. In cases of cohabitation by a man and a woman who
are not capacitated to marry each other and who
have acquired properly through their actual joint
contribution of money, property or industry, such
contributions and their corresponding shares
including joint deposits of money and evidences of
credit are equal;
31. If the marriage is terminated and the mother
contracted another marriage within 300 days after
such termination of the former marriage, these rules
shall govern in the absence of proof to the contrary;
32. A thing once proved to exist continues as long as is
usual with things of that nature;
33. The law has been obeyed;
34. A printed or published book, purporting to be
printed or published by public authority, was so
printed or published;
35. A printed or published book, purporting to contain
reports of cases adjudged in tribunals of the country
where the book is published, contains correct reports
of such cases;
36. A trustee or other person whose duty it was to
convey real property to a particular person has
actually conveyed it to him when such presumption
 Evidence
is necessary to perfect the title of such person or his 2. Findings of fact and assessment of credibility of a
successor in interest; witness are matters best left to the trial court that
37. Except for purposes of succession, when 2 persons had the front-line opportunity to personally evaluate
perish in the same calamity, and it is not shown who the demeanor, conduct, and behavior of the witness
died first, and there are no particular circumstances while testifying. (Sps. Paragas v. Heirs of Balacano,
from which it can be inferred, the survivorship is G.R. No. 168220, August 31, 2005)
determined from the probabilities resulting from the
strength and age of the sexes, according to the Hierarchy of quantum of evidence
following rules:
38. That if there is a doubt, as between two or more
persons who are called to succeed each other, as to
which of them died first, whoever alleges the death of
one prior to the other, shall prove the same; in the
absence of proof, they shall be considered to have
died at the same time (Sec. 3, Rule 131).

LIBERAL CONSTRUCTION
OF THE RULES OF EVIDENCE

The rules of evidence must be liberally construed (Sec. 6,

Rule 1). The Rules of Procedure are mere tools intended
to facilitate rather than to frustrate the attainment of
justice. A strict and rigid application of the rules must
always be avoided if it would subvert their primary
objective of enhancing substantial justice (Alcantara v.
PCIB, G.R. No. 151349, October 20, 2010). Procedural rules
must be liberally interpreted and applied so as not to
frustrate substantial justice (Quiambao v. Court of Appeals,
G.R. No. 128305, March 28, 2005 ). However, to justify
relaxation of the rules, a satisfactory explanation and a
subsequent fulfillment of the requirements have always
been required. (Barcenas v. Tomas, G.R. No. 150321, March
31, 2005)

QUANTUM OF EVIDENCE
(WEIGHT AND SUFFICIENCY OF EVIDENCE)
RULE 133
NOTE: Evidence, to be worthy of credit, must not only
Weight of evidence proceed from a credible source but must also be credible
in itself. It must be natural, reasonable and probable as to
It is the probative value given by the court to particular make it easy to believe. (People v. Peruelo, G.R. No. 50631,
evidence admitted to prove a fact in issue. June 29, 1981)

Degree of evidence required to disprove the prima
facie case established by the party having the burden
of proof
A prima facie case need not be countered by a
preponderance of evidence nor by evidence of greater
weight. Defendant's evidence which equalizes the weight
of plaintiff's evidence or puts the case in equipoise is
sufficient. As a result, plaintiff will have to go forward with
the proof. Should it happen that at the trial the weight of
evidence is equally balanced or at equilibrium and
presumptions operate against plaintiff who has burden of
proof, he cannot prevail. (People v. Santiago, G.R. Nos.
137542-43, January 20, 2004)
Guidelines in the assessment of credibility of a
witness
1. A witness who testified in clear, positive and
convincing manner and remained consistent in
cross-examination is a credible witness (People v.
Comanda, G.R. No. 175880, July 6, 2007); and
Trial court’s findings as to the credibility of witnesses,
not disturbed on appeal
The trial court’s findings of fact will not be disturbed on
appeal, unless there is a clear showing that it plainly
overlooked matters of substance which, if considered,
might affect the results of the review. The credibility of
witnesses is best determined by the trial judge, who has
the direct opportunity to observe and evaluate their
demeanor on the witness stand. (People v. Pacuancuan,
G.R. No. 144589, June 16, 2003)
Uncorroborated testimony of an accused who turned
into a State witness sufficient to convict his co-
accused
It may suffice to convict his co-accused if it is given in a
straightforward manner and is full of details which by
their nature could not have been the result of deliberate
afterthought, otherwise, it needs corroboration, the
presence or lack of which may ultimately decide the case

303
 REMEDIAL LAW
of the prosecution and the fate of the accused. (People v.
Sunga, G.R. No. 126029, March 27, 2003)
Sufficiency of evidence
In determining the sufficiency of evidence, what matters
is not the number of witnesses but the credibility and the
nature and quality of their testimonies. The testimony of
a lone witness is sufficient to support a conviction if found
positive and credible. (Ceniza-Manantan v. People, G.R. No.
156248, August 28, 2007)
Partial credibility of a witness
The testimony of a witness may be believed in part and
disbelieved in another part, depending on the
probabilities and improbabilities of the case. (People v.
Tan, G.R. No. 176526, August 8, 2007)
NOTE: If the testimony of the witness on a material issue
is willfully false and given with an intention to deceive, the
court may disregard all the witness’ testimony under the
Falsus in uno, falsus in omnibus rule (Riano, 2016). This is
not a mandatory rule of evidence but is applied by the
courts in its discretion. The court may accept and reject
portions of the witness’ testimony depending on the
inherent credibility thereof. (Regalado, 2008)
Falsus in uno, falsus in omnibus (in relation to
credibility of witness)
Literally, falsus in uno, falsus in omnibus means “false in
one thing, false in everything” (Dawson v. Bertolinin, 70
R.I. 325, 38 A.2d 765, 765). The doctrine means that if the
testimony of a witness on a material issue is willfully false
and given with an intention to deceive, the jury may
disregard all the witness’ testimonies. (Hargrave v.
Stockloss, 127 N.J.L. 262, 21 A.2d 820, 823)
The principle of falsus in uno, falsus in omnibus is not
strictly applied in this jurisdiction. It deals only with the
weight of the evidence and is not a positive rule of law.
Modern trend in jurisprudence favors more flexibility
when the testimony of a witness may be partly believed
and partly disbelieved depending on the corroborative
evidence presented at the trial. (People v. Negrosa, G.R.
Nos. 142856-57, August 25, 2003)
When the maxim falsus in uno, falsus in omnibus
applies
1. That the false testimony is as to one or more material
points; and
2. That there should be conscious and deliberate
intention to falsify a material point (People v.
Pacapac, G.R. No. 90623, September 7, 1995).
Extrajudicial confession NOT sufficient ground for
conviction
An extrajudicial confession made by an accused, shall not
be sufficient ground for conviction, unless corroborated
by evidence of corpus delicti. (Sec. 3, Rule 133)
When circumstantial evidence is sufficient for
conviction
304
Circumstantial evidence is sufficient for conviction if:
1. There are more than one circumstances;
2. The facts from which the inferences are derived are
proven; and
3. The combination of all the circumstances is such as
to produce a conviction beyond reasonable doubt.
(Sec. 4, Rule 133)
The corollary rule is that the circumstances proven must
constitute an unbroken chain which leads to one fair and
reasonable conclusion pointing to the accused, to the
exclusion of all others, as the guilty person. (Trinidad v.
People, G.R. No. 192241, June 13, 2012)
Alibi
It is a defense where an accused claims that he was
somewhere else at the time of the commission of the
offense. It is one of the weakest defenses an accused may
avail because of the facility with which it can be
fabricated, just like a mere denial (People v. Esperanza,
G.R. Nos. 139217-24, June 27, 2003). When this is the
defense of the accused, it must be established by positive,
clear and satisfactory evidence.
NOTE: A categorical and positive identification of an
accused, without any showing of ill-motive on the part of
the eyewitness testifying on the matter, prevails over an
alibi (People v. Gingos and Margote, G.R. No. 176632,
September 11, 2007). For the defense of alibi to prosper,
the accused must show that:
1. He was somewhere else; and
2. It was physically impossible for him to be at the scene
of the crime at the time of its commission. (People v.
Gerones, et al., G.R. No. L-6595, October 29, 1954)
Out-of-court identification
It is a means of identifying a suspect of a crime and is done
thru:
1. Show-ups: where the suspect alone is brought face to
face with the witness for identification;
NOTE: Eyewitness identification is often decisive of
the conviction or acquittal of an accused.
Identification of an accused through mug shots is one
of the established procedures in pinning down
criminals. However, to avoid charges of
impermissible suggestion, there should be nothing in
the photograph that would focus attention on a single
person. (People v. Villena, G.R. No. 140066, October 14,
2002)
2. Mug shots: where photographs are shown to the
witness to identify the suspect; or
3. Line-ups: where a witness identifies the suspect from
a group of persons lined up for the purpose. (People
v. Claudio Teehankee, Jr., G.R. Nos. 111206-08, October
6, 1995)
 Evidence
NOTE: A police line-up is merely a part of the
investigation process by police investigators to
ascertain the identity of offenders or confirm their
identification by a witness to the crime. Police
officers are not obliged to assemble a police line-up
as a condition sine qua non to prove the identity of an
offender. If on the basis of the evidence on hand,
police officers are certain of the identity of the
offender, they need not require any police line-up
anymore. (Tapdasan, Jr. v. People, G.R. No. 141344,
November 21, 2002)
Admissibility of out-of-court identification
It is admissible and reliable when it satisfies the “totality
of circumstances” test. Under the “totality of
circumstances” test, the following factors are considered:
1. Witness’ opportunity to view the criminal at the time
of the crime;
2. Witness’ degree of attention at that time;
3. Accuracy of any prior description given by the
witness;
4. Level of certainty demonstrated by the witness at the
identification;
5. Length of time between the crime and the
identification; and
6. Suggestiveness of the identification procedure
(People v. Claudio Teehankee, Jr., G.R. Nos. 111206-08,
October 6, 1995).
Corpus delicti
It is the actual commission by someone of the particular
crime charged. It refers to the fact of the commission of
the crime, not to the physical body of the deceased or to
the ashes of a burned building. The corpus delicti may be
proven by the credible testimony of a sole witness, not
necessarily by physical evidence. (Rimorin v. People, G.R.
No. 146481, April 30, 2003)
Elements of corpus delicti
1. Proof of the occurrence of a certain event; and
2. A person’s criminal responsibility for the act. (People
v. Corpuz, G.R. No. 148919, December 17, 2002)
NOTE: The identity of the accused is not a necessary
element of the corpus delicti.
Plea of guilty in open court sufficient without proof of
corpus delicti
A plea of guilty at the arraignment in open court, which is
a confession of guilt by the defendant, is sufficient to
support a conviction without necessity of proof aliunde of
corpus delicti. In contrast, an extrajudicial confession
made by defendant does not warrant a conviction unless
corroborated by independent evidence of corpus delicti.
(Francisco, 1996)
---
Q: Jose Mariposa was charged with violation of Sec. 4,
Art. 2 of the Dangerous Drugs Act of 1972. He was
305
apprehended thru a buy-bust operation. During trial
the prosecution failed to produce the marijuana
sticks that Mariposa sold during the entrapment
operation. Is there a need to produce the marijuana
sticks to convict the accused?
A: YES. The elements necessary for a charge of illegal sale
of marijuana are: (1) the identity of the buyer and the
seller, the object, and consideration; and (2) the delivery
of the thing sold and the payment therefore. It is
indispensable that the identity of the marijuana which
constitutes the corpus delicti must be established before
the court. During the trial, the sticks of marijuana were
never presented as evidence to prove that appellant
indeed sold the same during the entrapment operation. It
is an entrenched rule in our jurisprudence that
indispensable in every prosecution for illegal sale of
marijuana, a prohibited drug, is the submission of proof
that the sale for the illicit drug took place between the
poseur-buyer and the seller thereof, and the presentation
further of the marijuana, the corpus delicti, as evidence in
court (People v. Rigodon, G.R. No. 111888, November 8,
1994).
Res ipsa loquitur
It literally means the thing speaks for itself. This doctrine
provides that the fact of the occurrence of an injury, taken
with the surrounding circumstances. Where the thing
which caused the injury complained of is shown to be
under the management of the defendant or his servants
and the accident is such as in ordinary course of things
does not happen if those who have its management or
control use proper care, it affords reasonable evidence, in
the absence of participation by the defendant, that the
accident arose from or was caused by the defendant's
want of care (Ramos v. CA, G.R. No. 124354, December 29,
1999).
Application of the doctrine does not dispense with the
requirement of proof of negligence
It is considered merely as evidentiary or in the nature of
procedural rule. It is simply in the process of such proof,
permitting the plaintiff to present enough of the attending
circumstances to invoke the doctrine, creating an
inference or presumption of negligence and thereby place
on the defendant the burden of going forward with the
proof to the contrary. (Ramos, et al. v. CA, G.R. No. 124354,
December 29, 1999)
PROOF BEYOND REASONABLE DOUBT
Proof beyond reasonable doubt does not mean such a
degree of proof as, excluding possibility of error, produces
absolute certainty. Moral certainty only is required, or
that degree of proof which produces conviction in an
unprejudiced mind (Sec. 2, Rule 133).
NOTE: Moral certainty is that degree of certainty which
will justify the trial judge in grounding on it his verdict. It
is a certainty that convinces and directs the
understanding and satisfies the reason and judgment of
those who are bound to act conscientiously upon it.
 REMEDIAL LAW
Identity of the accused must be proved beyond
reasonable doubt
When the identity of the accused is not established
beyond reasonable doubt, acquittal necessarily follows.
Conviction for a crime rests on the strength of the
prosecution’s evidence, never on the weakness of that of
the defense (People vs. Jalon, G.R. No. 93729, November 13,
1992).
NOTE: In every criminal prosecution, the prosecution
must prove two things:
1. The commission of the crime; and
2. The identification of the accused as the perpetrator
of the crime. What is needed is positive identification
made with moral certainty as to the person of the
offender (People v. Maguing, G.R. No. 144090, June 26,
2003).
---
Matters that the court may consider in determining
whether there is preponderance of evidence
1. All the facts and circumstances of the case;
2. The witnesses' manner of testifying, their
intelligence, their means and opportunity of knowing
the facts to which they are testifying, the nature of
the facts to which they testify, the probability or
improbability of their testimony;
3. The witnesses’ interest or want of interest, and their
personal credibility so far as the same may
legitimately appear upon the trial; and
4. The number of witnesses, though the preponderance
is not necessarily with the greater number. (Sec. 1,
Rule 133)
NOTE: To persuade by the preponderance of evidence is
not to take the evidence quantitatively but qualitatively.
(Riano, 2016)

Q: Prosecution witnesses positively identified Johnny SUBSTANTIAL EVIDENCE

as the assailant of Chris. Hence, he was convicted of
Homicide. However, he contends that the State failed Substantial evidence applies to cases filed before the
to present sufficient evidence against him in court. He administrative or quasi-judicial bodies and which
sufficed that should the knife he held during a fight requires that in order to establish a fact, the evidence
against his longtime enemies, brothers Chris and should constitute that amount of relevant evidence which
Michael, had been presented, it would show the a reasonable mind might accept as adequate to justify a
difference that Chris’ knife, although smaller than conclusion. (Sec. 5, Rule 133)
Johnny’s, had more blood stains but which size fits
best on the mortal wound inflicted on himself. It NOTE: In a petition for a writ of amparo, the parties shall
would thereby be ascertained that Chris accidentally establish their claims by substantial evidence. (Sec 17, The
stabbed himself upon losing his balance during such Rule on the Writ of Amparo, effective October 24, 2007)
aggressive fight. Is Johnny’s contention meritorious?
---
A: NO. The non-identification and non-presentation of the
weapon actually used in the killing did not diminish the (2003 Bar)
merit of the conviction on the ground that other PREPONDERANCE OF SUBSTANTIAL
competent evidence and the testimonies of witnesses had EVIDENCE (Sec. 1) EVIDENCE (Sec. 5)
directly and positively identified and incriminated Johnny Means that the evidence Is that amount of relevant
as the assailant of Chris. The presentation of the weapon as a whole adduced by evidence which a
is not a prerequisite for conviction. Positive identification one side is superior to reasonable might mind
of the accused is sufficient for the judgment of conviction that of the other accept as adequate to
despite the non-presentation of the weapon used in the justify a conclusion
commission of the offense. Thus, the establishment Applicable in civil cases Applicable in
beyond reasonable doubt of Johnny’s guilt for the administrative cases or
homicide did not require the production of the weapon quasi-judicial bodies
used in the killing as evidence in court. (Medina vs. People,
G.R. No. 161308, January 15, 2014) CLEAR AND CONVINCING EVIDENCE
PREPONDERANCE OF EVIDENCE It is that degree of evidence that produces in the mind of
the trier of fact a firm belief or conviction as to allegations
It is the weight, credit, and value of the aggregate evidence sought to be established. It is intermediate, being more
on either side and is usually considered to be synonymous than preponderance, but not to the extent of such
with the term “greater weight of the evidence” or “greater certainty as is required beyond reasonable doubt as in
weight of the credible evidence”. It is a phrase which, in criminal cases. (Black’s Law Dictionary, 2004)
the last analysis, means probability of the truth, evidence XPN: Under Art. 1387, NCC, certain alienations of
which is more convincing to the court as worthy of belief property are presumed fraudulent.
than that which is offered in opposition thereto
(Philippine Commercial International Bank v. Balmaceda, Frame up
G.R. No. 158143, September 21, 2011).
Allegations of frame up by police officers are common and
NOTE: A judgment cannot be entered in the plaintiff’s standard defenses in most dangerous drugs cases. For this
favor if his evidence still does not suffice to sustain his claim to prosper the defense must adduce clear and
cause of action (Ibid.). convincing evidence to overcome the presumption that

306
 Evidence
government officials have performed their duties in a All matters relating to the admissibility and evidentiary
regular and proper manner. (People v. Almodiel, G.R. No. weight of an electronic document may be established by
200951, September 5, 2012) an affidavit stating facts of direct personal knowledge of
the affiant or based on authentic records. The affidavit
Instances when clear and convincing evidence is must affirmatively show the competence of the affiant to
required testify on the matters contained therein. (Sec. 1, Rule 9,
Rules on Electronic Evidence)
1. When proving forgery (Citibank, N.A. v. Sabeniano,
G.R. No. 156132, February 6, 2007); The affiant shall be made to affirmm the contents of the
2. When proving ownership over a land in annulment affidavit in open court may be cross examined as a matter
or reconveyance of title (Manotok Realty, Inc. v. CLT of right by the adverse party. (Sec. 2, Rule 9, Rules on
Realty Development Corp., G.R. No. 123346, December Electronic Evidence)
14, 2007);
3. When invoking self-defense, the onus is on the
accused-appellant to establish by clear and JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
convincing evidence his justification for the killing
(People v. Tomolin, G.R. No. 126650, July 28, 1999);
4. When proving the allegation of frame-up and
WHAT NEED NOT BE PROVED
extortion by police officers in most dangerous drug
cases (People v. Boco, G.R. No. 129676, June 23, 1999);
Facts that need not be proved
5. When proving physical impossibility for the accused
to be at the crime scene when using alibi as a defense
1. Those of which the courts may take judicial notice
(People v. Cacayan, G.R. No. 180499, July 9, 2008);
(Rule 129);
6. When using denial as a defense like in prosecution
2. Those that are judicially admitted (Rule 129);
for violation of the Dangerous Drugs Act (People v.
3. Those that are conclusively presumed (Rule 131);
Mustapa, G.R. No. 141244, February 19, 2001);
4. Those that are disputably presumed but
7. To overcome the presumption of due execution of
uncontradicted (Rule 131);
notarized instruments (Viaje v. Pamintel, G.R. No.
5. Immaterial allegations; and
147792, January 23, 2006);
6. Facts admitted or not denied provided they have
8. When proving bad faith to warrant an award of moral
been sufficiently alleged (Sec. 1, Rule 8).
damages (Resolution of the SC in Cual v. Leonis
7. Res ipsa loquitur
Navigation, G.R. No. 167775, October 10, 2005);
9. When proving that the police officers did not
MATTERS OF JUDICIAL NOTICE
properly perform their duty or that they were
inspired by an improper motive (People v.
Judicial notice
Concepcion, G.R. No. 178876, June 27, 2008); or
10. When a person seeks confirmation of an imperfect or
It is the cognizance of certain facts which judges may
incomplete title to a piece of land on the basis of
properly take and act upon without proof because they
possession by himself and his predecessors-in-
are supposed to be known to them. It is based on
interest, he must prove with clear and convincing
considerations of expediency and convenience. It
evidence compliance with the requirements of the
displaces evidence, being equivalent to proof. (Regalado,
applicable law (Republic v. Imperial Credit Corp., G.R.
2008
No. 173088, June 25, 2008; Riano, 2009).
Function of judicial notice
Evidentiary weight of electronic evidence
Judicial Notice dispenses the presentation of evidence and
In assessing the evidentiary weight of electronic evidence,
fulfills the purpose for which the evidence is designed to
certain factors may be considered, like:
fulfill (Moran, 1980, citing Alzua vs. Johnson, G.R. No. 7317,
January 31, 1912). Its function is to abbreviate litigation
1. The reliability of the manner in which it was
by admission of matters that needs no evidence because
generated, stored or communicated
judicial notice is a substitute for formal proof of a matter
2. The reliability of the manner in which its originator
by evidence. (Riano, 2016)
was identified.
3. The integrity of the information and communication
Kinds of judicial notice
system.
4. The familiarity of the witnesses or the person who
1. Mandatory – insofar as those matters
made the entry with the communication and
enumerated under Sec. 1, Rule 129;
information system.
2. Discretionary – on matters which are of public
5. The nature and quality of the information which
knowledge, or are capable of unquestionable
went into the communication and information
demonstration, or ought to be known to judges
system.
because of their functions. (Sec. 2, Rule 129)
6. Other factors which the courts may consider (Sec. 1,
Rule 7, Rules on Electronic Evidence).
Mandatory Judicial Notice vs. Discretionary
Judicial Notice

307
 REMEDIAL LAW

Mandatory Judicial Discretionary which have come to be established and accepted by

Notice Judicial Notice the specialists in the areas of natural science, natural
Court is compelled to Court is not phenomena, chronology, technology, geography,
take judicial notice compelled to take statistical facts and other fields of professional and
judicial notice scientific knowledge. (Francisco, 1996)
Takes place at court’s May be at court’s own
initiative initiative or on 3. Ought to be known to judges because of their judicial
request of a party functions. (Sec. 2, Rule 129)
No hearing Needs hearing and
presentation of NOTE: Judicial notice is not judicial knowledge. The
evidence mere personal knowledge of the judge is not the
judicial knowledge of the court, and he is not
When Judicial Notice of a fact may be taken authorized to make his individual knowledge of a
fact, not generally or professionally known, the basis
1. During trial; of his action. Judicial cognizance is taken only of
2. After trial and before judgment; or those matters which are "commonly" known. (State
3. Appeal. Prosecutors vs. Muro, A.M. No. RTJ-92-876, September
19, 1994)
In all instances, the court may act on its own initiative
or on request of a party. (Sec. 3, Rule 129) Requisites for the application of the principle of
discretionary judicial notice
MANDATORY JUDICIAL NOTICE
1. The matter must be one of common and general
When the matter is subject to a mandatory judicial notice, knowledge;
no motion or hearing is necessary for the court may take 2. It must be well and authoritatively settled and not
judicial notice of a fact. doubtful or uncertain; and
3. It must be one which is not subject to a reasonable
Matters subject to mandatory judicial notice (EPOL- dispute in that it is either:
APOL-MG)
a. Generally known within the territorial
1. Existence and territorial extent of states; jurisdiction of the trial court; or
2. Political history, forms of government and symbols b. Capable of accurate and ready determination by
of nationality; resorting to sources whose accuracy cannot
3. Law of nations; reasonably be questionable (Expertravel &
4. Admiralty and maritime courts of the world and their Tours, Inc. v. CA, G.R. No. 152392, May 26, 2005).
seals;
5. Political constitution and history of the Philippines; NOTE: The principal guide in determining what facts may
6. Official acts of legislative, executive and judicial be assumed to be judicially known is that of notoriety
departments of the Philippines; (Ibid.). The test of notoriety is whether the fact involved is
7. Laws of nature; so notoriously known as to make it proper to assume its
8. Measure of time; and existence without proof.
9. Geographical divisions (Sec. 1, Rule 129)
JUDICIAL NOTICE OF FOREIGN LAWS,
DISCRETIONARY JUDICIAL NOTICE LAW OF NATIONS AND
MUNICIPAL ORDINANCE
When the matter is subject to discretionary judicial
notice, a hearing is necessary before judicial notice is Judicial notice of foreign laws
taken of a matter.
GR: Courts cannot take judicial notice of foreign laws.
Matters which the court may take judicial notice of: They must be alleged and proved (2005 Bar).
(PDF) (2005 Bar)
XPN: When said laws are within the actual knowledge of
1. Matters which are of public knowledge; the court and such laws are:

NOTE: Public knowledge are those matters coming to
the knowledge of men generally in the course of
ordinary experiences of life, or they may be matters
which are generally accepted by mankind as true and
are capable of ready and unquestioned
demonstration.
1. Well and generally known;
2. Actually ruled upon in other cases before it; and none
of the parties claim otherwise (PCIB v. Escolin, G.R.
Nos. L-27860 L-278896, March 29, 1974).
Doctrine of Processual Presumption

2. Capable of unquestionable demonstration; or In international law, the party who wants to have a
foreign law applied to a dispute or case has the burden of
NOTE: Matters which are capable of unquestionable proving the foreign law. Where a foreign law is not
demonstration are facts, theories and conclusions pleaded or even if pleaded, is not proved, the presumption

308
 Evidence
is that the foreign law is same as ours. (ATCI Overseas
Corporation, Amalia G. Ikdal and Ministry of Public Health
– Kuwait vs. Ma. Josefina Echin, G.R. No. 178551, October
11, 2010)
When foreign law is part of a published treatise,
periodical or pamphlet
When the foreign law is part of a published treatise,
periodical or pamphlet and the writer is recognized in his
profession or calling as expert in the subject, the court, it
is submitted, may take judicial notice of the treatise
containing the foreign law. (Sec. 46, Rule 130)
When a foreign law refers to the law of nations
It is subject to mandatory judicial notice under Sec. 1 of
Rule 129. Under the Philippine Constitution, the
Philippines adopts the generally accepted principles of
international law as part of the law of the land (Sec. 2, Art.
II, 1987 Constitution of the Philippines). Being part of the
law of the land, they are therefore, technically in the
nature of local laws and hence, are subject to mandatory
judicial notice under Sec. 1 of Rule 129. (Riano, 2016)
Rules regarding judicial notice of ordinances
1. MTCs are required to take judicial notice of the
ordinances of the municipality or city wherein they
sit.
2. RTCs must take judicial notice of ordinances in force
in the municipalities within their jurisdiction only:
a. When expressly authorized to do so by statute;
or
b. In case on appeal before them and wherein the
inferior court took judicial notice of an
ordinance involved in the same case.
3. Appellate courts may also take judicial notice of
ordinances not only because the lower courts took
judicial notice thereof but because these are facts
capable of unquestionable demonstration (Riano,
2016).
Rule on judicial notice of records of another case
previously tried
GR: Courts are not authorized to take judicial notice of the
contents of the records of other cases, even when such
cases have been tried or are pending in the same court,
and notwithstanding the fact that both cases may have
been heard or are actually pending before the same judge.
(Calamba Steel Center, Inc. v. CIR, G.R. No. 151857, April 28,
2005)
XPNs:
1. When in the absence of any objection, with the
knowledge of the opposing party, the contents of said
other cases are clearly referred to by title and
number in a pending action and adopted or read into
the record of the latter;
2. When the original record of the other case or any part
of it is actually withdrawn from the archives at the
court’s discretion upon the request, or with the
consent, of the parties, and admitted as part of the
309
record of the pending case (Jumamil v. Cafe, G.R. No.
144570, September 21, 2005);
3. When the action is closely interrelated to another
case pending between the same parties;
4. Where the interest of the public in ascertaining the
truth are of paramount importance;
5. In cases seeking to determine what is reasonable
exercise of discretion or whether the previous ruling
is applicable in a case under consideration; or
6. Where there is finality of a judgment in another case
that was previously pending determination and
therefore, res judicata (Herrera, 1999).
---
Q: Anna and Badong were accused of killing Cathy.
However, only Anna was arrested since Badong went
into hiding. After trial, Anna was acquitted of the
charge in a decision rendered by Judge Santos.
Subsequently, Badong was arrested and brought to
trial. After trial, Badong was found guilty of homicide
in a decision rendered by Judge Yantok, the judge who
replaced Judge Santos after the latter retired. On
appeal, Badong argues that Judge Yantok should have
taken judicial notice of the acquittal of Anna rendered
by Judge Santos. Is Badong correct?
A: NO. The appreciation of one judge of the testimony of a
certain witness is not binding on another judge who heard
the testimony of the same witness on the same matter.
Each magistrate who hears the testimony of a witness is
called upon to make his own appreciation of the evidence.
(People v. Langit, G.R. Nos. 134757-58, August 4, 2000).
Hearing in cases of discretionary judicial notice
After Trial but Before
During Trial
Judgment or on Appeal
The court on its own The proper court, on its
initiative, or on request of own initiative or on
a party, may announce its request of a party, may
intention to take judicial take judicial notice of any
notice of any matter and matter and allow the
allow the parties to be parties to be heard
heard thereon. (Sec. 3, thereon if such matter is
Rule 129) decisive of a material
issue in the case (Ibid).
NOTE: Hearing is necessary in the foregoing instances to
afford the parties reasonable opportunity to present
information relevant to the propriety of taking such
judicial notice or the tenor of the matter to be judicially
noticed.
Instances when the Court takes judicial notice
1. The court may take judicial notice of the existence
and location within the territory over which they
exercise jurisdiction of great rivers and lakes, and
their relation to provincial boundaries, of
navigability of streams, constituting highway
commerce and notorious facts concerning the same
(Banatao v. Tuliao, G.R. No. 12264, September 23,
1918).
 REMEDIAL LAW
2. The SC took judicial notice that financial problem is a and shall be considered
factor that beset the sugar industry; that there is by the court as
crisis in the sugar industry (Hilado v. Leogardo, Jr., established.
G.R. No. L-65863, June 11, 1986). Conclusive upon the Rebuttable
3. The SC took judicial notice of the general increase in admitter
rentals of real estate especially of business Admissible even if self- Not admissible if self-
establishments (Commander Realty, Inc. v. CA, G.R. No. serving serving
L-77227, November 29, 1988). Subject to cross- Not subject to cross-
4. The SC took judicial notice of the reality that, examination examination
especially in local elections, political rivals or
operators benefited from the usually belated Requisites of judicial admission
decisions by COMELEC on petitions to cancel or deny
due course to CoCs of potential nuisance candidates 1. It must be made by a party to the case or his counsel;
(Casimira S. Dela Cruz v. Commission on Elections, G.R. 2. It must be made in the course of the proceedings in
No. 192221, November 13, 2012). the same case; and
5. The SC has taken into consideration how rapists are 3. It can be verbal or written admission. (Regalado,
not deterred by the presence of people nearby, such 2008).
as the members of their own family inside the same
room, with the likelihood of being discovered, since Different forms of judicial admission:
lust respects no time, locale or circumstance (People
of the Philippines v. Neil B. Colorado, G.R. No. 200792, 1. Verbal – Verbal waiver of proof made in open court,
November 14, 2012). a withdrawal of contention, or disclosure made
before the court, or admission made by witness in his
NOTE: Judicial notice could be taken of the fact that testimony or deposition;
government is and has for many years been financially 2. Writing – Pleading, bill of particulars, stipulation of
strapped, to the point that even the most essential facts, request for admission, or a judicial admission
services have suffered serious curtailment (La Bugal- contained in an affidavit used in the case. (31 C.J.S
B’Laan Tribal Assoc. v. Ramos, December 1, 2004). 1069; Programme Inc. v. Province of Bataan, G.R. No.
144635, June 26, 2006)
While courts are not mandated to take judicial notice of
the practice of banks in conducting background checks on How judicial admissions are made
borrowers and sureties under Sec. 1, Rule 129, they
nevertheless may do so under the rule on discretionary Judicial admissions may be made in:
judicial notice, which provides that a court, in its
discretion, may take judicial notice of “matters which are 1. The pleadings filed by the parties;
of public knowledge, or ought to be known to judges 2. The course of the trial either by verbal or written
because of their judicial functions”. (Solidbank manifestations or stipulations, including depositions,
Corporation v. Mindanao Ferroalloy Corp., G.R. No. 153535, written interrogatories and requests for admissions;
July 28, 2005) or
3. Other stages of the judicial proceedings, as in pre-
JUDICIAL ADMISSIONS trial (Binarao v. Plus Builders, Inc., 491 SCRA 49).
These are admissions, verbal or written, made by a party Two ways in which admissions are made in pleadings
in the course of the proceedings in the same case, which
does not require proof. (Sec. 4, Rule 129) 1. Actual Admission–When a party categorically admits
a material allegation made by the adverse party.
Judicial admissions vs. Extrajudicial admissions 2. Implied Admission– When the admission is inferred
from the failure to specifically deny the material
Judicial Admissions Extrajudicial allegations in the other party’s pleadings.
Admissions
Those made in the course Those made out of court EFFECTS OF JUDICIAL ADMISSIONS
of the proceeding in the or in a judicial proceeding
same case other than the one under 1. They do not require proof; and
consideration 2. They cannot be contradicted because they are
Do not require proof and Regarded as evidence and conclusive upon the parties (Ibid.).
may be contradicted only must be offered as such,
by showing that it was otherwise the court will NOTE: Judicial admissions are conclusive and no evidence
made through palpable not consider it in deciding is required to prove the same (Solivio v. CA, G.R. No. 83484,
mistake or that no such the case. February 12, 1990)
admission was made
(Sec. 4, Rule 129). Admissions made in pleadings which were NOT filed
Judicial admissions need Requires formal offer for with the court
not be offered in evidence it to be considered
since it is not evidence. It Admissions made therein are not judicial admissions:
is superior to evidence

310
 Evidence
1. If signed by the party litigant himself – Considered as
extrajudicial admission.
2. If signed by the counsel – Not admissible because a
counsel only binds his client with respect to
admissions in open court and in pleadings actually
filed with the court (Riano, 2016).
Averments in pleadings which are not deemed
admissions
There are averments in the pleadings which are not
deemed admitted even if the adverse party fails to make a
specific denial of the same as:
1. immaterial allegations (Sec. 11, Rule 8)
2. conclusions, non-ultimate facts in the pleadings (Sec
1, Rule 8)
3. amount of unliquidated damages (Sec. 11, Rule 8)
Implied admission of allegations of usury
If the complaint makes an allegation of usury to recover
usurious interest, the defendant must not only specially
deny the same but must likewise do so under oath. Failure
to make the proper denial under oath would involve an
implied admission of the allegation of usury. (Riano, 2016)
Effect of an invalid and ineffective denial of actionable
documents attached to the complaint
When an action or defense is founded upon an actionable
document, the genuineness and due execution of the same
instrument shall be deemed admitted unless it is
specifically denied under oath (Sec. 8, Rule 8). The failure
to deny the genuineness and due execution of said
document amounts to a judicial admission. (PNB v.
Refrigeration Industries, Inc., GR No. 156178, January 20,
2006)
NOTE: But the failure to deny the genuineness and due
execution of an actionable document does not preclude a
party from arguing against the document by evidence of
fraud, mistake, compromise, payment, statute of
limitations, estoppel and want of consideration. He is
however, precluded from arguing that the document is a
forgery because the genuineness of document is impliedly
admitted. (Acabal v. Acabal, G.R. 148376, March 31, 2005;
PNB v. Refrigeration Industries, Inc, supra)
When an action or defense is founded upon a written
instrument, copied in or attached to the corresponding
pleading as provided by Sec. 7, the genuineness and due
execution of the instrument shall be deemed admitted
unless the adverse party, under oath, specifically denies
them, and sets forth what he claims to be the facts; but the
requirement of an oath does not apply when the adverse
party does not appear to be a party to the instrument or
when compliance with an order for an inspection of the
original instrument is refused. (Sec. 8, Rule 8)
Admissions in the pre-trial of civil cases
One of the purposes of pre-trial in civil cases is for the
court to consider the possibility of obtaining stipulations
or admissions of facts (Sec.2 (d), Rule 18). A pre-trial is
311
mandatory. Admissions therefore, in the pre-trial, as well
as those made during depositions, interrogatories or
requests for admissions, are all deemed judicial
admissions because they are made in the course of the
proceedings of the case. (Riano, 2016)
The admission having been made in the stipulation of
facts at pre-trial by the parties, it must be treated as a
judicial admission. It requires no proof. (Eastern Shipping
Lines, Inc. v. BPI/MS Insurance Corp., G.R. No. 182864,
January 12, 2015)
Admissions in the pre-trial of criminal cases
Admission made by the accused in the pre-trial of a
criminal case is not necessarily admissible against him. To
be admissible the conditions set forth by Sec. 2 of Rule 118
must be complied with.
All the agreements or admissions made or entered during
the pre-trial conference shall be:
1. reduced into writing
2. signed by the accused and counsel
Otherwise, they cannot be used against the accused.
(Sec.2, Rule 118)
Rule in case of admissions made in amended
pleadings
Admissions in a pleading which had been withdrawn or
superseded by an amended pleading, although filed in the
same case, are considered as extrajudicial admissions. The
original must be proved by the party who relies thereon
by formally offering it in evidence (Torres v. CA, G.R. Nos.
L-37420-21, July 31, 1984). Pleadings that have been
amended disappear from the record, lose their status as
pleadings and cease to be judicial admissions, and to be
utilized as extrajudicial admission, they must, in order to
have such effect, be formally offered in evidence (Ching v.
Court of Appeals, G.R. No. 110844, April 27, 2000).
Rule regarding self-serving evidence
The self-serving rule is not applicable to judicial
admissions. If the declaration is made in open court, it is
admissible because the witness may be cross-examined
on that matter.
Effect of a guilty plea made by the accused during his
arraignment later withdrawn
A plea of guilty entered by the accused may be later
withdrawn at any time before the judgment of conviction
becomes final. Such plea is not admissible in evidence
against the accused and is not even considered as an
extrajudicial admission.
HOW JUDICIAL ADMISSIONS
MAY BE CONTRADICTED
Grounds for contradicting judicial admissions
1. Upon showing that the admission was made through
palpable mistake; or
 REMEDIAL LAW
2. When it is shown that no such admission was made NOTE: The paraffin test is merely corroborative evidence,
(Sec. 4, Rule 129). neither proving nor disproving that a person did indeed
fire a gun. The positive or negative results of the test can
Remedy of party who made a judicial admission be influenced by certain factors such as the wearing of
gloves by the subject, perspiration of the hands, wind
1. Written admission – File a motion to withdraw such direction, etc. (People v. Buduhan, G.R. No. 178196, August
pleading, or any other written instrument containing 6, 2008)
such admission; and
2. Oral admission – The counsel may move for the Polygraph test (Lie Detector Tests)
exclusion of such admission.
It is an electromechanical instrument that simultaneously
measures and records certain physiological changes in
OBJECT (REAL) EVIDENCE the human body that are believed to be involuntarily
caused by an examinee’s conscious attempt to deceive the
questioner. (West’s Legal Thesaurus Dictionary, 1986)
NATURE OF OBJECT EVIDENCE
A polygraph test operates on the principle that stress
causes physiological changes in the body which can be
Object as evidence are those addressed to the senses of
measured to indicate whether the subject examination is
the court. When an object is relevant to the fact in issue, it
telling the truth. (Riano, 2016)
may be exhibited to, examined or viewed by the court
(Sec. 1, Rule 130) (2005 Bar)
---
Object evidence, also known as real evidence,
Q: Ron was charged with murder for shooting Carlo.
demonstrative evidence, autoptic preference and physical
After trial, Ron was found guilty as charged. On
evidence, is that evidence which is addressed to the
appeal, Ron argued that the trial court should have
senses of the court (Sec. 1, Rule 130). It is not limited to the
acquitted him as his guilt was not proved beyond
view of an object. It covers the entire range of human
reasonable doubt. He argues that the paraffin test
senses: hearing, taste, smell, and touch. (Riano, 2016)
conducted on him 2 days after he was arrested
yielded a negative result. Hence, he could not have
NOTE: Physical evidence is a mute but eloquent
shot Carlo. Is Ron correct?
manifestation of truth and it ranks high in our hierarchy
of trustworthy evidence- where physical evidence runs
A: NO. While the paraffin test was negative, such fact
counter to testimonial evidence, the physical evidence
alone did not ipso facto prove that Ron is innocent. A
should prevail. (Bank of the Philippine Islands v. Reyes, G.R.
negative paraffin result is not conclusive proof that a
No. 149840-41, March 31, 2006)
person has not fired a gun. It is possible to fire a gun and
yet be negative for nitrates, as when the culprit is wearing
Documents are object (real) evidence if the purpose is to
gloves or he washes his hands afterwards. Here, since Ron
prove their existence or condition, or the nature of the
submitted himself for paraffin testing only two days after
handwriting thereon, or to determine the age of the paper
the shooting, it was likely he had already washed his
used, or the blemishes or alterations thereon, as where
hands thoroughly, thus removing all traces of nitrates
falsification is alleged. (Regalado, 2008)
therefrom (People v. Brecinio, G.R. No. 138534, March 17,
2004).
Examples of object evidence
Requisites for Admissibility
1. Any article or object which may be known or
perceived using the senses;
1. It must be relevant and competent;
2. Examination of the anatomy of a person or of any
2. Authenticated;
substance taken therefrom;
NOTE: To authenticate the object, it must be shown
3. Conduct of tests, demonstrations or experiments;
that the object is the very thing that is either the
4. Examination of representative portrayals of the
subject matter of the law suit or the very one
object in question (e.g. maps, diagrams);
involved to prove an issue in the case.
5. Documents, if the purpose is to prove their existence
or condition, or the nature of the handwriting
3. The authentication must be made by a competent
thereon or to determine the age of the paper used, or
witness who should identify the object to be the
the blemishes or alterations (Regalado, 2008); and
actual thing involved; and
6. A person’s appearance, where relevant (People v.
4. The object must be formally offered in evidence
Rullepa, G.R. No. 131516, March 5, 2003).
(Riano, 2016).
Paraffin test
Purposes of authentication of object evidence
A test which can establish the presence or absence of
1. Prevent the introduction of an object different from
nitrates or nitrites on the hand but the test alone cannot
the one testified about; and
determine whether the source of the nitrates or nitrites
2. Ensure that there have been no significant changes in
was discharge of a firearm.
the object’s condition.

312
 Evidence
Q: Appellant Thor was charged with and convicted of
Circumstances when the court may refuse the the special complex crime of robbery with homicide
introduction of object or real evidence and rely on by the trial court. On his appeal, he asseverates that
testimonial evidence alone the admission as evidence of victim's wallet together
with its contents, violates his right against self-
1. Its exhibition is contrary to public morals or decency; incrimination. Likewise, Thor sought for their
exclusion because during the custodial investigation,
NOTE: But if the exhibition of such object is wherein he pointed to the investigating policemen
necessary in the interest of justice, it may still be the place where he hid the victim's wallet, he was not
exhibited, and the court may exclude the public from informed of his constitutional rights (Miranda rights).
such view. Such exhibition may not be refused if the Decide the case.
indecent or immoral objects constitute the very basis
of the criminal or civil action (Moran, 1980). A: The right against self-incrimination guaranteed under
our fundamental law finds no application in this case. This
2. To require its being viewed in court or in ocular right is simply a prohibition against legal process to
inspection would result in delays, inconvenience, or extract from the [accused]'s own lips, against his will,
unnecessary expenses which are out of proportion to admission of his guilt. It does not apply to the instant case
the evidentiary value of such object; where the evidence sought to be excluded is not an
3. Such object evidence would be confusing or incriminating statement but an object evidence.
misleading, as when the purpose is to prove the Infractions on the so-called “Miranda rights” render
former condition of the object and there is no inadmissible only the extrajudicial confession or
preliminary showing that there has been no admission made during custodial investigation. The
substantial change in said condition; or admissibility of other evidence is not affected even if
4. The testimonial or documentary evidence already obtained or taken in the course of custodial investigation.
presented clearly portrays the object in question as Concededly, Thor was not informed of his rights during
to render a view thereof unnecessary (Regalado, the custodial investigation. Neither did he execute a
2008). written waiver of these rights in accordance with the
constitutional prescriptions. Nevertheless, these
--- constitutional shortcuts do not affect the admissibility of
the victim's wallet and its contents (People v. Malimit, G.R.
Q: In a criminal case for murder, the prosecution No. 109775, November 14, 1996).
offered as evidence, photographs showing the
accused mauling the victim with several of the latter’s CATEGORIES OF OBJECT EVIDENCE
companions. The person who took the photograph
was not presented as a witness. Be that as it may, the Categories of object evidence for purposes of
prosecution presented the companions of the victim authentication
who testified that they were the ones in the
photographs. The defense objected to the 1. Unique objects – Those that have readily identifiable
admissibility of the photographs because the person marks (e.g. a caliber 40 gun with serial number
who took the photographs was not presented as XXX888);
witness. Is the contention of the defense tenable? 2. Objects made unique – Those that are made readily
identifiable (e.g. a bolo knife used to hack a victim
A: NO. Photographs, when presented in evidence, must be which could be identified by a witness in court); and
identified by the photographer as to its production and 3. Non-unique objects – Those which have no identifying
testified as to the circumstances under which they were marks and cannot be marked (e.g. drops of blood)
produced. The value of this kind of evidence lies in its (Riano, 2016).
being a correct representation or reproduction of the
original, and its admissibility is determined by its DEMONSTRATIVE EVIDENCE
accuracy in portraying the scene at the time of the crime.
Real evidence Demonstrative
The photographer, however, is not the only witness who Evidence
can identify the pictures he has taken. The correctness of Tangible object that Tangible evidence that
the photograph as a faithful representation of the object played some actual role in merely illustrates a
portrayed can be proved prima facie, either by the the matter that gave rise matter of importance in
testimony of the person who made it or by other to the litigation the litigation
competent witnesses who can testify to its exactness and Intends to prove that the Intends to show that the
accuracy, after which the court can admit it subject to object is used in the demonstrative object
impeachment as to its accuracy. Here, the photographs underlying event fairly represents or
are admissible as evidence in as much as the correctness illustrates a real evidence
thereof was testified to by the companions of the victim
(Sison v. People, G.R. Nos. 108280-83, November 16, 1995). Illustration: Where a
drawing is presented to
--- illustrate the relative
positions of the
protagonists and

313
 REMEDIAL LAW
witnesses to the killing,
the foundation for
demonstrative evidence
will normally consist of the
testimony of an
eyewitness or investigator
stating that the drawing
was indeed fairly
represents the position of
those present in the event.
(Francisco, 1996)
VIEW OF AN OBJECT OR SCENE
When an object is relevant to the fact in issue, it may be
exhibited to, examined or viewed by the court. (Sec 1, Rule
130)
Where the object in question cannot be produced in court
because it is immovable or inconvenient to remove, it is
proper for the tribunal to go to the object in its place and
there observe it (Francisco, 1996). An ocular inspection
conducted by the judge without the presence of the
parties or due notice is not valid, as an ocular inspection
is part of the trial. (Regalado, 2008, citing Adan vs. Abucejo-
Luzano, et al., A.M. No. MTJ-00-1298, August 3, 2000)
DOCUMENTARY EVIDENCE
MEANING OF DOCUMENTARY EVIDENCE
Documents as evidence consist of writings or any material
containing letters, words, numbers, figures, symbols, or
other modes of written expressions, offered as proof of
their contents (Sec. 2, Rule 130).
Document
A document is a deed, instrument or other duly notarized
paper by which something is proved, evidenced or set
forth. (Regalado, 2008)
NOTE: Any instrument notarized by a notary public or a
competent public official, with the solemnities required
by law, is a public document. Pleadings filed in a case and
in the custody of the clerk of court are public documents.
All other documents are private documents. (Bermejo vs.
Barrios, G.R. No. L-23614, February 27, 1970)
Two categories of documentary evidence
1. Writings;
2. Any other material containing modes of written
expressions – the material contains letters, words,
numbers, figures, symbols or other modes of written
expression and offered as proof of their contents.
(Riano, 2016)
Tape-recording as documentary evidence
If a tape recording is played to show that particular words
were uttered, it will constitute a documentary evidence.
However, if it is played to simply show that words were
314
uttered in a particular accent, then it is an object evidence
(Francisco, 1996).
---
Q: May a private document be offered and admitted in
evidence both as documentary evidence and object
evidence? (2005 Bar)
A: YES. A private document may be offered and admitted
in evidence both as documentary evidence and as object
evidence depending on the purpose for which the
document is offered. If offered to prove its existence,
conditions or for any purpose other than the contents of a
document, the same is considered as an object evidence.
When the private document is offered as proof of its
contents, the same is considered as documentary
evidence. The document may be offered for both purposes
under the principle of multiple admissibility. (Riano,
2016)
REQUISITES FOR ADMISSIBILITY
1. The document should be relevant;
2. The documents should be authenticated and proved
in the manner provided in the Rules of Court (Chua v.
CA, G.R. No. 88383, February 19, 1992). Such
authentication must be done by a competent witness;
3. The documents should be identified and marked; and
4. They should be formally offered to the court and
shown to the opposing party so that the latter may
have the opportunity to object thereto. (Ramcar, Inc.
vs. Hi-Power Marketing, G.R. No. 157075, July 17,
2006)
---
Q: When Linda died, her common-law husband, Lito
and their alleged daughter, Nes, executed an
extrajudicial partition of Linda’s estate. Thereafter,
the siblings of Linda filed an action for partition of
Linda’s estate and annulment of titles and damages
with the RTC. The RTC dismissed the complaint and
ruled that Nes was the illegitimate daughter of the
decedent and Lito based solely on her birth
certificate, which on closer examination, reveals that
Nes was listed as “adopted” by both Linda and Lito. Is
the trial court correct?
A: NO. A record of birth is merely a prima facie evidence
of the facts contained therein. It is not conclusive evidence
of the truthfulness of the statements made therein by the
interested parties. Nes should have adduced evidence of
her adoption, in view of the contents of her birth
certificate. The mere registration of a child in his or her
birth certificate as the child of the supposed parents is not
a valid adoption, does not confer upon the child the status
of an adopted child and the legal rights of such child, and
even amounts to simulation of the child's birth or
falsification of his or her birth certificate, which is a public
document. The records however are bereft of any such
evidence. (Rivera v. Heirs of Villanueva, G.R. No. 141501,
July 21, 2006)
Theory of indivisibility (Rule on Completeness)
 Evidence
When part of an act, declaration, conversation, writing or
record is given in evidence by one party, the whole of the
same subject may be inquired into by the other; and when
a detached act, declaration, conversation, writing, or
record is given in evidence, any other act, declaration,
conversation, writing or record necessary to its
understanding may also be given in evidence (Sec. 17, Rule
132).
BEST EVIDENCE RULE
MEANING OF THE RULE
GR: It provides that when the subject of the inquiry is the
contents of the document, no evidence shall be admissible
other than the original document itself.
XPNs: (LCNP)
1. When the original has been lost, or destroyed, or
cannot be produced in court, without bad faith on the
part of the offeror;
2. When the original is in the custody or under the
control of the party against whom the evidence is
offered, and the latter fails to produce it after
reasonable notice;
3. When the original consists of numerous accounts or
other documents which cannot be examined in court
without great loss of time and the fact sought to be
established from them is only the general result of
the whole;
4. When the original is a public record in the custody of
a public officer or is recorded in a public office (Sec.
3, Rule 130) (1997 Bar).
NOTE: Where the issue is only as to whether such a
document was actually executed, or exists, or on the
circumstances relevant to or surrounding its execution or
delivery (external facts), the best evidence rule does not
apply and testimonial evidence is admissible (Moran,
1980).
The Best Evidence Rule, applied to documentary
evidence, operates as a rule of exclusion, that is,
secondary evidence cannot be inceptively be introduced
as the original writing itself must be produced in court,
except in the four instances mentioned in Sec. 3
(Regalado, 2008).
Best Evidence Rule different from best evidence
The best evidence rule is often described as a misnomer.
Despite the word “best,” the rule does not proclaim itself
as the highest and most reliable evidence in the hierarchy
of evidence. The term “best” has nothing to do with the
degree of its probative value in relation to other types of
evidentiary rules. It is not intended to mean the “most
superior” evidence. More accurately, it is the “original
document” rule, or primary evidence rule (1994 Bar, as
cited in Riano, 2016).
NOTE: The “Best evidence rule” does not refer to the
exclusivity of the “best evidence” but rather allows
exceptions in certain circumstances. It is a misnomer
315
since it applies only to documentary evidence and not to
other types of evidence
---
Q: What is the reason underlying the adoption of the
best evidence rule? (1998 Bar)
A: There is a need to present to the court the exact words
of a writing where a slight variation of words may mean a
great difference in rights. It is also for the prevention of
fraud or mistake in the proof of the contents of a writing
WHEN APPLICABLE
1. The subject matter must involve a document; and
2. The subject of the inquiry is the contents of the
document.
NOTE: When the truth of the document is in issue and not
the contents thereof, the best evidence rule will not be
applicable. In such case, it is the hearsay rule that will
apply (Riano, 2016).
Subject of inquiry
When the best evidence rule comes into operation, it is
presumed that the subject of the inquiry is the contents of
the document, thus the party offering the document must
present the original thereof and not any other secondary
evidence.
Collateral Facts Rule
A document or writing which is merely “collateral” to the
issue involved in the case on trial need not be proved.
Where the purpose of presenting a document is not to
prove its contents, but merely to give coherence to, or to
make intelligible the testimony of a witness regarding a
fact contemporaneous to the writing, the original of the
document need not be presented.
MEANING OF ORIGINAL DOCUMENT
1. The original of a document is one the contents of
which are the subject of inquiry;
2. When a document is in two or more copies executed
at or about the same time, with identical contents,
including signed carbon copies, all such copies are
equally regarded as originals; or
NOTE: When carbon sheets are inserted between
two or more sheets of writing paper so that the
writing of a contract upon the outside sheet,
including the signature of the party to be charged
thereby, produces a facsimile upon the sheets
beneath, such signature being thus reproduced by
the same stroke of pen which made the surface or
exposed impression, all of the sheets so written on
are regarded as duplicate originals and either of
them may be introduced in evidence as such without
accounting for the non-production of the others
(Trans-pacific Industrial Supplies v. CA, G.R. No.
109172, August 19, 1994).
 REMEDIAL LAW
3. When an entry is repeated in the regular course of
business, one being copied from another at or near
the time of the transaction, including entries in
journals and ledgers, all the entries are likewise
equally regarded as originals (Sec. 4, Rule 130) (2001
Bar)
NOTE: Writings with identical contents made by
printing, mimeographing, lithography and other
similar methods executed at the same time are
considered as original document. Thus, each
newspaper sold in the stand is an original. (Riano,
2016)
---
Q: When Anna loaned a sum of money to Blair, Anna
typed a single copy of the promissory note, which they
both signed. Anna made two photocopies of the
promissory note, giving one copy to Blair and
retaining the other copy. Anna entrusted the
typewritten copy to his counsel for safekeeping. The
copy with Anna's counsel was destroyed when the law
office was burned.
1. In an action to collect on the promissory note,
which is deemed to be the "original" copy for the
purpose of the best evidence rule?
2. Can the photocopies in the hands of the parties be
considered "duplicate original copies"?
3. As counsel for Anna, how will you prove the loan
given by Anna to Blair? (1997 Bar)
A:
1. The copy that was signed and lost is the only
"original" copy for purposes of the best evidence rule
(Sec. 4 (b), Rule 130).
2. No, because they are merely photocopies which were
not signed (Mahilum v. CA, G.R. No. L-17970, July 10,
1966). They constitute secondary evidence (Sec. 5,
Rule 130).
3. It may be proved by secondary evidence through the
photocopies of the promissory note. When the
original document is lost or destroyed, or cannot be
produced in court, the offeror, upon proof of its
execution or existence and the cause of its
unavailability without bad faith on his part, may
prove its contents by a copy, or by a recital of its
contents in some authentic document, or by the
testimony of witnesses in the order stated (Sec. 5,
Rule 130).
SECONDARY EVIDENCE
It refers to evidence other than the original instrument or
document itself. It is the class of evidence that is relevant
to the fact in issue, it being first shown that the primary
evidence of the fact is not obtainable. It performs the same
functions as that of primary evidence. (EDSA Shangri-La
Hotel and Resort, Inc. v. BF Corporation, G.R. Nos. 145842 &
145873, June 27, 2008; Francisco, 1992)
NOTE: All duplicates or counterparts of such document
must first be accounted before one can resort to
316
secondary evidence. It must appear that all of them have
been lost or destroyed or cannot be produced in court.
The non-production of the original document, unless it
falls under any of the exceptions in Sec. 3, Rule 130, gives
rise to the presumption of suppression of evidence. (De
Vera, et al. v. Aguilar, et al. G.R. No. 83377, February 9,
1993)
When original document is unavailable (2000 Bar)
When the original document has been lost or destroyed,
or cannot be produced in court, the offeror, upon proof of
its execution or existence and the cause of its
unavailability without bad faith on his part, may prove its
contents by a copy, or by a recital of its contents in some
authentic document, or by the testimony of witnesses in the
order stated (Sec. 5, Rule 130)
Requisites before the contents of the original
document may be proved by secondary evidence
(laying the basis/laying the predicate)
The offeror must prove the following:
1. Execution or existence of the original document;
2. The cause of its unavailability; and
3. The unavailability of the original is not due to bad
faith on his part. (Sec. 5, Rule 130)
NOTE: Accordingly, the correct order of proof is as
follows: existence, execution, loss, and contents. This
order may be changed if necessary at the sound discretion
of the court. (Citibank, N.A. MasterCard v. Teodoro, G.R. No.
150905, September 23, 2003)
Due execution of the document
It may be proved through the testimony of:
1. The person who executed it;
2. The person before whom its execution was
acknowledged;
3. Any person who was present and saw it executed and
delivered;
4. Any person who thereafter saw and recognized the
signature;
5. One to whom the parties, thereto had previously
confessed the execution thereof; or
6. By evidence of the genuineness of the signature or
handwriting of the maker. (Sec. 20, Rule 132)
NOTE: The promissory note is an actionable document
and the original or a copy thereof should have been
attached to the complaint (Sec. 7, Rule 8). In such a case,
the genuineness and due execution of the note, if not
denied under oath, would be deemed admitted (Sec. 8,
Rule 9).
Intentional destruction of original document
Intentional destruction of the originals by a party who
acted in good faith does not preclude the introduction of
secondary evidence of the contents thereof (Regalado,
2008).
 Evidence
Proof of loss or destruction
It may be proved by:
1. Any person who knew of such fact;
2. Anyone who, in the judgment of the court, had made
sufficient examination in the places where the
document or papers of similar character are usually
kept by the person in whose custody the document
was and has been unable to find it; or
3. Any person who has made any other investigation
which is sufficient to satisfy the court that the
document is indeed lost.
NOTE: A reasonable probability of its loss is sufficient,
and this may be shown by a bona fide and diligent search,
fruitlessly made, in places where it is likely to be found
(Paylago v. Jarabe, G.R. No. L-20046, March 27, 1968).
All duplicates or counterparts of a lost or destroyed
document must be accounted for before using copies
thereof since all duplicates are parts of the writing to be
proved. (De Vera, et al. v. Aguilar, et al., G.R. No. 83377,
February 9, 1993)
While a marriage certificate is considered the primary
evidence of a marital union, it is not regarded as the sole
and exclusive evidence of marriage. Jurisprudence
teaches that the fact of marriage may be proven by
relevant evidence other than the marriage certificate.
Hence, even a person’s birth certificate may be recognized
as competent evidence of marriage between parents.
(Vda. De Avenido vs. Avenido, G.R. No. 173540, January 22,
2014)
Order of presentation of secondary evidence
Upon proof of its execution and loss of the original
document, its contents may be proved by:
1. Copy of the original;
2. Recital of the contents of the document in some
authentic document; or
3. By the testimony of witnesses. (Sec. 5, Rule 130)
NOTE: The hierarchy of preferred secondary evidence
must strictly be followed. (Riano, 2016)
Who may prove the contents of a document?
1. Any person who signed the document;
2. Any person who read it;
3. Any person who heard when the document was
being read;
4. Any person who was present when the contents of
the document were talked over by the parties to such
an extent as to give him reasonably full information
of the contents; or
5. Any person to whom the parties have stated or
confessed the contents thereof.
Definite Evidentiary Rule
Where the law specifically provides for the class and
quantum of secondary evidence to establish the contents
317
of a document, or bars secondary evidence of a lost
document, such requirement is controlling, e.g. evidence
of a lost notarial will should consist of a testimony of at
least two credible witnesses who can clearly and
distinctly establish its contents. (Sec. 6, Rule 76; Regalado,
2008)
Waiver of the presentation or offer of the original
The presentation or offer of the original may be waived
upon failure to object by the party against whom the
secondary evidence is offered when the same was
presented, as the secondary evidence becomes primary
evidence. But even if admitted as primary evidence, its
probative value must still meet the various tests by which
its reliability is to be determined. Its tendency to convince
and persuade must be considered for admissibility of
evidence should not be confused with its probative value.
(Heirs of Teodoro De la Cruz v. CA, G.R. No. 117384, October
21, 1998)
When original document is in adverse party’s custody
or control
If the document is in the custody or under the control of
adverse party, he must have reasonable notice to produce
it. If after such notice and after satisfactory proof of its
existence, he fails to produce the document, secondary
evidence may be presented as in the case of its loss (Sec.
6, Rule 130).
Requisites for admissibility of secondary evidence
when the original document is in the custody or
control of the adverse party
1. Satisfactory proof of existence of original document
(Sec. 6, Rule 130);
2. The original is in the possession or under the control
of the opponent;
3. Demand or notice is made to him by the proponent
signifying that the document is needed;
NOTE: No particular form of notice is required, to be
given to the adverse party, as long as it fairly
appraises the other party as to what papers are
desired. Even an oral demand in open court for such
production at a reasonable time thereafter will
suffice. Such notice must, however, be given to the
adverse party, or his attorney, even if the document
is in the actual possession of a third person.
(Regalado, 2008)
The notice may be in the form of a motion for the
production of the original, or made in an open court
in the presence of the adverse party, or via a
subpoena duces tecum, provided that the party in
custody of the original has sufficient time to produce
the same. When such party has the original of the
writing and does not voluntarily offer to produce it,
secondary evidence may be admitted. (Magdayao v.
People G.R. No. 162308, November 7, 1994)
4. Failure or refusal of opponent to produce document
in court; and
 REMEDIAL LAW
NOTE: A justified refusal or failure of the adverse
party to produce the original document will not give
rise to the presumption of suppression of evidence,
or create an unfavorable inference against him. It
only authorizes the presentation of secondary
evidence (Regalado, 2008).
---
Q: Paula filed a complaint against Lynette for the
recovery of a sum of money based on a promissory
note executed by the latter. During the hearing, Paula
testified that the original note was with Lynette and
the latter would not surrender to Paula the original
note which Lynette kept in a place about one day's
trip from where she received the notice to produce
the note and despite such notice to produce the same
within 6 hours from receipt of such notice, Lynette
failed to do so. Paula presented a copy of the note
which was executed at the same time as the original
and with identical contents. Over the objection of
Lynette, can Paula present a copy of the promissory
note and have it admitted as valid evidence in her
favor? Why? (2001 Bar)
examination. (Compaña Maritima v. Allied Free Workers
Union, et al., G.R. No. L-28999, May 24, 1977)
When original document is a public record (2000 Bar)
When the original of document is in the custody of public
officer or is recorded in a public office, its contents may be
proved by a certified copy issued by the public officer in
custody thereof. (Sec. 7, Rule 130)
Proof of the contents if the original document is a
public record
The contents may be proved by:
1. A certified copy issued by the public officer in
custody thereof (Sec. 7, Rule 130); and
2. Official publication (Herrera, 1999).
NOTE: Public records are generally not to be removed
from the places where they are recorded and kept (Sec. 26,
Rule 132). Hence, proof of the contents of a document
which forms part of a public record may be done by
secondary evidence.

A: YES. Although the failure of Lynette to produce the When a document produced is not offered in evidence
original of the note is excusable since she was not given
reasonable notice, a requirement under the Rules before If the party who calls for the production of a document
secondary evidence may be presented, the copy in does not offer the same in evidence, no unfavorable
possession of Paula is not a secondary evidence but a inference may be drawn from such failure. This is because
duplicate original because it was executed at the same a party who calls for the production of a document is not
time as the original and with identical contents. Hence, required to offer it (Sec. 8, Rule 130).
being the best evidence, the rule on secondary evidence
need not be complied with (Sec. 6, Rule 130). Production of documents under Sec. 8, Rule 130 vs.
Rule 27 (mode of discovery)
When the original consists of numerous accounts
Sec. 8, Rule 130 Rule 27
When the production of the original writings and their Procured by mere notice The production of
examination in court would result in great loss of time to the adverse party, document is in the nature
considering that the evidence desired from the which is a condition of a mode of discovery
voluminous accounts is only the general result of the precedent for the and can be sought only by
whole. (Sec. 3(c), Rule 130) subsequent introduction proper motion in the trial
of secondary evidence by court and is permitted
NOTE: A witness may be allowed to offer a summary of a the proponent. only upon good cause
number of documents, or summary of the contents may shown.
be admitted if documents are so voluminous and intricate
as to make an examination of all of them impracticable. Presupposes that the Contemplates a situation
They may also be presented in the form of charts or document to be produced wherein the document is
calculations. (Riano, 2016) is intended as evidence either assumed to be
for the proponent who is favorable to the party in
Requisites for the admissibility of secondary presumed to have possession thereof or that
evidence when the original consists of numerous knowledge of its contents. the party seeking its
accounts production is not
sufficiently informed of
1. The original must consist of numerous accounts or the contents of the same.
other documents;
2. They cannot be examined in court without great loss
of time; and PAROL EVIDENCE RULE
3. The fact sought to be established from them is only
the general result of the whole. (Sec. 3(c), Rule 130)

NOTE: Voluminous records must be made accessible to
the adverse party so that the correctness of the summary
of the voluminous records may be tested on cross-
When the terms of an agreement have been reduced to
writing, it is considered as containing all the terms agreed
upon and there can be, between the parties and their
successors-in-interest, no evidence of such terms other
than the contents of the written agreement. (Sec. 9, Rule

318
 Evidence
130)
NOTE: Among the evidentiary rules, it is the parol
evidence rule that has direct application to the law on
contracts. The rule applies only to contracts which the
parties have decided to set forth in writing. Hence, parol
evidence does not apply to oral contracts. (Riano, 2016)
Parol evidence
It is any evidence aliunde (extrinsic evidence) which is
intended or tends to vary or contradict a complete and
enforceable agreement embodied in a document
(Regalado, 2008). It may refer to testimonial, real or
documentary evidence.
or privy of a party to the written instrument in question
and does not base a claim or assert a right originating in
the instrument of the relation established thereby. Thus,
if one of the parties to the case is a complete stranger to
the contract involved therein, he is not bound by this rule
and can introduce extrinsic evidence against the efficacy
of the writing (Lechugas v. CA, et al., G.R. Nos. L-39972 & L-
40300, August 6, 1986).
Application of the rule to wills
The Parol evidence rule applies to contractual obligations.
However, the term “agreement” includes wills. Therefore,
there can be no evidence of the terms of the will other
than the contents of the will itself (Riano, 2016).

NOTE: Parol evidence is evidence outside of the
agreement of the parties while the parol evidence rule
prevents the presentation of such parol evidence.
Rationale for the adoption of the parol evidence rule
(2009 Bar)
NOTE: While parol evidence applies to wills, an express
trust concerning an immovable or any interest therein
may not be proved by parol evidence (Art. 1443, Civil Code
of the Philippines).
WHEN PAROL EVIDENCE CAN BE INTRODUCED

It is designed to give certainty to a transaction which has Exceptions to Parol Evidence Rule
been reduced to writing, because written evidence is
much more certain and accurate than that which rests on A party may present evidence to modify, explain or add to
fleeting memory only (Francisco, 1992). Spoken words the terms of the written agreement if he puts in issue in his
could be notoriously undesirable unlike a written pleadings the following: (IF-VE)
contract which speaks of a uniform language (Ortañez v.
Court of Appeals, G.R. No. 107372, January 23, 1997) 1. An intrinsic ambiguity, mistake or imperfection in
Moreover, it gives stability to written statements, the written agreement;
removes the temptation and possibility of perjury and 2. Failure of the written agreement to express the true
prevents possible fraud. intent of the parties thereto; (2001 Bar)
3. Validity of the written agreement; or
Condition precedent and a condition subsequent 4. Existence of other terms agreed to by the parties or
established by parol evidence their successors in interest after the execution of the
written agreement (Sec. 9, Rule 130).
Condition precedent may be established by parol
evidence because there is no varying of the terms of the Mistake
written contract by extrinsic agreement because there is
no contract in existence. There is nothing in which to The mistake contemplated is one which is a mistake of
apply the excluding rule. Conditions subsequent may not fact mutual to both parties (Bernardo, 2008, citing
be established by parol evidence since a written contract Gurango vs. IAC, G.R. No. 75290, November 4, 1992). Parol
already exists. evidence may only be allowed, if any of the foregoing
matters is put in issue in the pleadings.
NOTE: The present rule now requires that the
admissibility of subsequent agreements be conditioned Kinds of ambiguities
upon its being put in issue (Sec 9(d), rule 130).
Intrinsic or Extrinsic or Intermediate
APPLICATION OF THE PAROL EVIDENCE RULE Latent Patent
On its face, the Ambiguity is Ambiguity
Requisites for the application of the rule writing appears apparent on the consists in the
clear and face of the use of equivocal
1. There must be a valid contract; unambiguous writing and words
2. The terms of the agreement must be reduced to but there are requires that susceptible of
writing. “Agreement” includes wills; collateral something be two or more
3. The dispute is between the parties or their matters which added to make interpretation
successors-in-interest; and make the the meaning
4. There is dispute as to the terms of the agreement. meaning certain
uncertain
Parties should be privies to the contract Curable by Cannot be Curable by
evidence cured by evidence
The parol evidence rule does not apply, and may not be aliunde evidence aliunde
properly invoked by either party to the litigation against aliunde because
the other, where at least one party to the suit is not a party it is only

319
 REMEDIAL LAW

intrinsic so. Paula presented a copy of the note which was

ambiguity not executed at the same time as the original and with
extrinsic identical contents. Over the objection of Lynette, will
ambiguity Paula be allowed to testify as to the true agreement or
which serves as contents of the promissory note? Why? (2001 Bar)
an exception to
the parol A: YES. As an exception to the parol evidence rule, a party
evidence rule may present evidence to modify, explain or add to the
Where the Where the Use of terms terms of the written agreement if he puts in issue in his
document contract refers such as pleading the failure of the written agreement to express
refers to a to an “dollars” “tons” the true intent and agreement of the parties thereto. Here,
particular unidentified and “ounces” Paula has alleged in her complaint that the promissory
person or thing grantee or does note does not express the true intent and agreement of
but there are not particularly the parties. The parol evidence rule may be admitted to
two or more identify the show the true consideration of the contract (Sec. 4(b), Rule
persons having subject matter 130).
the same name thereof such
or two or more that, in either DISTINCTIONS BETWEEN
things to which case the text THE PAROL EVIDENCE RULE
the description does not AND THE BEST EVIDENCE RULE
in the writing disclose who
may apply are or what is Parol Evidence Rule Best Evidence Rule
referred to Presupposes that the The original document is
original document is not available or there is a
available in court dispute as to whether said
Failure of the written agreement to express true writing is original
intent of the parties
Prohibits the varying of Prohibits the introduction
Parol evidence may be admitted to show the true the terms of a written of secondary evidence in
consideration of the contract, or the want or illegality agreement lieu of the original
thereof, or the incapacity of the parties, or the fact that the document regardless of
contract was fictitious or absolutely simulated, or that whether it varies the
there was fraud in inducement (Regalado, 2008). Despite contents of the original
the meeting of the minds, the true agreement of the
parties is not reflected in the instrument. (Riano, 2016). Applies only to documents Applies to all kinds of
which are contractual in writings
NOTE: In an action for reformation of instrument under nature including wills
Art. 1359 of the Civil Code of the Philippines, the plaintiff
may introduce parol evidence to show the real intention Can be invoked only when Can be invoked by any
of the parties. An action for reformation presupposes that the controversy is party to an action whether
a meeting of the minds exists between the parties, i.e., between the parties to the he has participated in the
there is a contract between them although the instrument written agreement, their writing involved
that evidences the contract does not reflect the true privies, or any party
agreement of the parties by reason of, for instance, fraud affected thereby like a
or mistake (Riano, 2016). cestui que trust

--- Waiver of the parol evidence rule

Q: Paula filed a complaint against Lynette for the
recovery of a sum of money based on a promissory
note executed by the latter. Paula alleged in her
complaint that although the promissory note says
that it is payable within 120 days, the truth is that the
note is payable immediately after 90 days but that if
Paula is willing, she may, upon request of Lynette give
the latter up to 120 days to pay the note. During the
hearing, Paula testified that the truth is that the
agreement between her and Lynette is for the latter
to pay immediately after 90 days time. Also, since the
original note was with Lynette and the latter would
not surrender to Paula the original note which
Lynette kept in a place about one day's trip from
where she received the notice to produce the note and
in spite of such notice to produce the same within 6
hours from receipt of such notice, Lynette failed to do
Failure to invoke the benefits of the rule constitutes as
waiver of the rule. Inadmissible evidence may be
rendered admissible by failure to object (Riano, 2016).
Probative value
NOTE: However, even if the parol evidence is admitted, it
does not mean that the court would give probative value
to the parol evidence. Admissibility is not the equivalent
of probative value or credibility (Riano, 2016).
Considering the agreement’s mistake, imperfection or
supposed failure to express the parties’ true intent was
successfully put in issue in the complaint, this case falls
under the exceptions provided by Sec 9, Rule 130.
Accordingly, the testimonial and documentary parol
evidence sought to be introduced, which attest to these

320
 Evidence
supposed flaws and what they aver to have been the required by law to be
parties’ true intent, may be admitted and considered. entered therein
However, this admission and availability for (Sec. 19, Rule 132).
consideration is no guarantee of how exactly the parol
evidence adduced shall be appreciated by the court. They
do not guarantee the probative value, if any, that shall be As to authenticity and admissibility as evidence
attached to them. (Paras v. Kimwa Construction and Admissible as evidence Before any private
Development Corp., G.R. No. 171601, April 8, 2015). without need of further document offered as
proof of its genuineness authentic is received in
and due execution evidence, its due
AUTHENTICATION execution and
AND PROOF OF DOCUMENTS authenticity must first be
proved.

MEANING OF AUTHENTICATION As to persons bound

Evidence even against Binds only the parties
It is the process of proving the due execution and third persons, of the fact who executed them or
genuineness of a document. which gave rise to its due their privies, insofar as
execution and to the date due execution and date of
When authentication is NOT required of the latter the document are
concerned
1. The writing is an ancient document (Sec. 21, Rule
132); As to validity of certain transactions
2. The writing is a public document or record (Sec. 19, Certain transactions must
Rule 132); be contained in a public
document; otherwise
NOTE: A private document required by law to be they will not be given any
recorded, while it is transformed into a public validity.
document by the “public record” thereof, is not
included in this enumeration. Such recording does NOTE: Church registries of births, marriages and deaths
not make the private writing itself a public document are not no longer public writings nor are they kept by duly
so as to make it admissible without authentication, authorized public officials. They are private writings and
i.e. birth certificate recorded in the NSO is a public their authenticity must therefore be proved, as are all
record, but it is still a private document. other private writings in accordance with the rules.
(Llemos v. Llemos, G.R. No. 150162, January 26, 2007).
3. The writing is a notarial document acknowledged,
proved or certified (Sec. 30, Rule 132); WHEN A PRIVATE WRITING
4. The authenticity and due execution of the document REQUIRES AUTHENTICATION;
has been expressly admitted or impliedly admitted PROOF OF A PRIVATE WRITING
by failure to deny the same under oath; or
5. When such genuineness and due execution are Who may prove the due execution and authenticity of
immaterial to the issue. private documents

PUBLIC AND PRIVATE DOCUMENTS 1. By anyone who saw the document executed or
written; or
Public Document Private Document 2. By evidence of the genuineness of the signature or
What comprises it handwriting of the maker.
1. The written official All other writings are
acts, or records of the private (Sec. 19, Rule 132). Any other private document need only be identified as
official acts of the that which it is claimed to be, i.e. ancient documents.
sovereign authority,
official bodies and NOTE: In addition to the modes of authenticating a
tribunals, and public private document under Sec. 20, Rule 132, American
officers, whether of Jurisprudence also recognizes the doctrine of self-
the Philippines, or of authentication – where the facts in writing could only
a foreign country; have been known by the writer; and the rule of
2. Documents authentication by the adverse party – where the reply of
acknowledged the adverse party refers to and affirms the sending to him
before a notary and his receipt of the letter in question, a copy of which
public except last the proponent is offering as evidence (Regalado, 2008).
wills and testaments;
and The testimony of a handwriting expert is not
3. Public records, kept indispensable to the examination or the comparison of
in the Philippines, of handwritings in cases of forgery. A finding of forgery does
private documents not depend entirely on the testimonies of handwriting

321
 REMEDIAL LAW
experts, because the judge must conduct an examination
of the questioned signature in order to arrive at a
reasonable conclusion as to its authenticity. The opinions
of handwriting experts are not binding upon courts,
especially when the question involved is mere
handwriting similarity or dissimilarity, which can be
determined by a visual comparison of specimens of the
questioned signatures with those of the currently existing
ones (Pontaoe v. Pontaoe, G.R. Nos. 159585 & 165318, April
22, 2008).
WHEN EVIDENCE OF AUTHENTICITY OF A PRIVATE
WRITING IS NOT REQUIRED
(ANCIENT DOCUMENTS)
1. The writing is an ancient document (Sec. 21, Rule
132);
2. The authenticity and due execution of the document
has been expressly admitted or impliedly admitted
by failure to deny the same under oath;
3. When such genuineness and due execution are
immaterial to the issue.
Requisites of ancient document/authentic document
rule
1. That the private document be more than 30 years
old;
2. That it be produced from a custody in which it would
naturally be found if genuine; and
3. That it is unblemished by any alteration or
circumstances of suspicion (Sec. 21, Rule 132).
NOTE: This rule applies only if there are no other
witnesses to determine authenticity.
HOW TO PROVE GENUINENESS
OF A HANDWRITING
1. It may be proved by any witness who actually saw the
person writing the instrument;
2. By any person who is familiar or has acquired
knowledge of the handwriting of such person, his
opinion as to the handwriting being an exception to
the opinion rule under Secs. 48 & 50 of Rule 130;
3. By a comparison of the questioned handwriting from
the admitted genuine specimens thereof; or
4. By expert witness (Secs. 20 & 22, Rule 132; Sec. 49,
Rule 130).
NOTE: Sec. 22 of Rule 132 merely enumerates the
methods of proving handwriting but does not give
preference or priority to a particular method (Lopez v. CA,
et al., G.R. No. L-31494, January 23, 1978).
PUBLIC DOCUMENTS AS EVIDENCE;
PROOF OF OFFICIAL RECORD
Proof of public records
Written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and
public officers, e.g. a written foreign law, may be
evidenced by:
322
1. If it is within the Philippines:
a. An official publication thereof; or
b. By a copy attested by the officer having the legal
custody of the record, or by his deputy.
2. If it is kept in a foreign country:
a. An official publication thereof; or
b. By a copy attested by the officer having the legal
custody of the record or by his deputy and
accompanied with a certificate that such officer
has the custody. The certificate may be made by
a secretary of the embassy or legation, consul
general, consul, vice consul, or consular agent or
by any officer in the foreign service of the
Philippines stationed in the foreign country in
which the record is kept, and authenticated by
the seal of his office (Sec. 24, Rule 132). (2009
Bar)
NOTE: Upon failure to comply with the above-
mentioned requirements, courts will apply the
doctrine of processual presumption.
---
Q: Ellen Harper and her son, Jonathan Harper filed a
case for damages against Shangri-La Hotel and Resort,
Inc. for the death of Christian Harper. To prove
heirship of the plaintiffs-appellees, they presented
several documents (Birth Certificates, Marriage
Certificate, and Certificate from the Oslo Probate
Court) which were all kept in Norway. The documents
had been authenticated by the Royal Norwegian
Ministry of Foreign Affairs and bore the official seal of
the Ministry and signature of one, Tanja Sorlie. The
documents were also accompanied by an
Authentication by the Consul, Embassy of the
Republic of the Philippines in Stockholm, Sweden to
the effect that, Tanja Sorlie was duly authorized to
legalize official documents for the Ministry. Shangri-
La Hotel however, questioned their filiation with the
deceased assailing that the documents presented
were incompetent for failing to comply with the
requirement of authentication. Is the contention
correct?
A: NO. Although the documents were not attested by the
officer having the legal custody of the record or by his
deputy in the manner required in Section 25 of Rule 132,
and said documents did not comply with the requirement
under Section 24 of Rule 132 to the effect that if the record
was not kept in the Philippines a certificate of the person
having custody must accompany the copy of the
document that was duly attested stating that such person
had custody of the documents, the deviation was not
enough reason to reject the utility of the documents for
the purposes they were intended to serve. The official
participation in the authentication process of Tanja Sorlie
of the Royal Ministry of Foreign Affairs of Norway and the
attachment of the official seal of that office on each
authentication indicated that the documents were of a
public nature in Norway, not merely private documents.
 Evidence
That rules of procedure may be mandatory in form and
application does not forbid a showing of substantial
compliance under justifiable circumstances, because
substantial compliance does not equate to a disregard of
basic rules. For sure, substantial compliance and strict
adherence are not always incompatible and do not always
clash in discord. (Makati Shangri-La Hotel and Resort, Inc.
v. Harper, G.R. No. 189998, August 29, 2012)
Inspection of Public Record
GR: Any public record must not be removed from the
office in which it is kept.
XPN: Upon order of a court where the inspection of the
record is essential to the just determination of a pending
case (Sec. 26, Rule 132).
Probative value of documents consisting of entries in
public records
They are prima facie evidence of the facts stated therein if
entered by a public officer in the performance of a duty.
All other public documents are evidence, even against a
third person, of the fact which gave rise to their execution
and of the date of the latter (Sec. 23, Rule 132).
NOTE: A special power of attorney executed and
acknowledged before a notary public in a foreign country
authorizing a person to file a suit against certain persons
in the Philippines is not admissible in evidence because a
notary public in a foreign country is not one of those who
can issue the certificate mentioned in Sec. 24, Rule 132 of
Rules of Court. Non-compliance with the said rule will
render the SPA inadmissible in evidence. Not being duly
established in evidence, the SPA cannot be used to file a
suit in representation of another. The failure to have the
SPA authenticated is not a mere technicality but a
question of jurisdiction (Heirs of Medina v. Natividad, G.R.
No. 177505, November 27, 2008).
ATTESTATION OF A COPY
Whenever a copy of a document or record is attested for
the purpose of evidence, the attestation must state, in
substance:
1. That the copy is a correct copy of the original, or a
specific part thereof, as the case may be;
2. It must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court (Sec. 25,
Rule 132).
PUBLIC RECORD OF A PUBLIC DOCUMENT
Proof of public record of a private document
1. By the original record; or
2. By a copy thereof, attested by the legal custodian of
the record, with an appropriate certificate that such
officer has the custody (Sec. 27, Rule 132).
PROOF OF LACK OF RECORD
323
Proof of lack of record of a document consists of written
statement signed by an officer having custody of an
official record or by his deputy. The written statement
must contain the following matters:
1. There has been a diligent search of the record;
2. That despite the diligent search, no record of entry of
a specified tenor is found to exist in the records of his
office.
NOTE: The written statement must be accompanied by a
certificate that such officer has the custody of official
records (Sec. 28, Rule 132). (2003 Bar)
HOW A JUDICIAL RECORD IS IMPEACHED
Impeachment of a judicial record: (WCF) (2009 Bar)
1. Want of jurisdiction in the court or judicial officer;
2. Collusion between the parties (e.g. legal separation,
annulment cases); or
3. Fraud in the party offering the record, in respect to
the proceedings (Sec. 29, Rule 132).
NOTE: Fraud refers to extrinsic fraud, which is a ground
for annulment of judgment.
---
Q: Lino was charged with illegal possession of
firearm. During trial, the prosecution presented in
evidence a certification of the PNP Firearms and
Explosives Office attesting that the accused had no
license to carry any firearm. The certifying officer,
however, was not presented as a witness. Is the
certification of the PNP Firearm and Explosives Office
without the certifying officer testifying on it
admissible in evidence against Lino? (2003 Bar)
A: YES. Section 28, Rule 130 provides that “a written
statement signed by an officer having the custody of an
official record or by his deputy that after diligent search,
no record or entry of a specified tenor is found to exist in
the records of his office, accompanied by a certificate as
above provided, is admissible as evidence that the records
of his office contain no such record or entry.”
The records of the PNP Firearm and Explosives Office are
a public record. Hence, notwithstanding that the
certifying officer was not presented as a witness for the
prosecution, the certification he made is admissible in
evidence against Lino (Sec. 28, Rule 130; Mallari v. Court of
Appeals, G.R. No. 110569, December 9, 1996; Valeroso v.
People, G.R. No. 164815, February 22, 2008).
PROOF OF NOTARIAL DOCUMENTS
Notarial documents
Documents acknowledged before a notary public is
considered a public document and enjoy the presumption
of regularity.
The document may be presented in evidence without
further proof, the certificate of acknowledgment being
 REMEDIAL LAW
prima facie evidence of the execution of the instrument or
document involved (Sec. 30, Rule 132).
NOTE: The identification documents which may be
presented as “competent evidence of identity” by
signatories to documents or instruments to be notarized
include, but are not limited to: passports, driver’s licenses,
Professional Regulations Commission (PRC)
identification cards, NBI clearances, police clearances,
postal IDs, voter’s IDs, Barangay certifications, GSIS e-
cards, SSS cards, Philhealth cards, senior citizen’s cards,
Overseas Workers Welfare Administration (OWWA) IDs,
OFW IDs, seaman’s books, alien certificate of
registrations/immigrant certificate of registrations,
government office IDs, certifications from the National
Council for the Welfare of Disabled Persons (NCWDP),
and DSWD certifications.
Evidentiary weight of a notarial document
A Notarial document celebrated with all the legal
requisites under a notarial certificate is evidence of a high
character, and to overcome its recitals, it is incumbent
upon the party challenging it to prove his claim with clear
and convincing evidence.
A notarized document carries the evidentiary weight
conferred upon it with respect to its due execution, and it
has in its favor the presumption of regularity which may
only be rebutted by evidence so strong and convincing as
to exclude all controversy as to the falsity of the
certificate. Absent such, the presumption must be upheld.
The burden of proof to overcome the presumption of due
execution of a notarial document lies on the one
contesting the same (Pan Pacific Industrial Sales Co. v. CA,
G.R. No. 125283, August 9, 2005).
HOW TO EXPLAIN ALTERATIONS
IN A DOCUMENT
A party producing a document as genuine which has been
altered and appears to have been altered after its
execution must account for the alteration. He may show
that the alteration:
1. Was made by another, without his concurrence;
2. Was made with the consent of the parties affected by
it;
3. Was otherwise properly or innocently made; or
4. That the alteration did not change the meaning or
language of the instrument.
NOTE: Failure to do at least one of the above will make
the document inadmissible in evidence (Sec. 31, Rule 132).
DOCUMENTARY EVIDENCE
IN AN UNOFFICIAL LANGUAGE
Documents written in an unofficial language shall not be
admitted as evidence unless accompanied with a
translation into English or Filipino (Sec. 33, Rule 132).
TESTIMONIAL EVIDENCE
324
It is sometimes called viva voce evidence which literally
means “living voice” or by word of mouth. In this kind of
evidence, a human being (witness) is called to the stand,
is asked questions, and answers the question asked of him
(Riano, 2016).
QUALIFICATIONS OF A WITNESS
Except as provided in the next succeeding section, all
persons who can perceive, and perceiving, can make their
known perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the
case, or conviction of a crime unless otherwise provided
by law, shall not be ground for disqualification (Sec. 20,
Rule 130) .
NOTE: The number of witnesses does not determine the
outcome of the case. In a case of rape, the Supreme Court
has held that positive identification will prevail over the
defense of alibi, the latter being considered as a weaker
defense since it can be easily fabricated.
Presumption of competency of a witness
GR: A person who takes the witness stand, is presumed to
be qualified to testify. A party who desires to question the
competence of a witness must do so by making an
objection as soon as the facts tending to show
incompetency are apparent (Jones on Evidence, Vol. 3, Sec.
796).
A prospective witness must show that he has the
following abilities:
1. To observe – The testimonial quality of perception;
2. To remember – The testimonial quality of memory;
3. To relate – The testimonial quality of narration; and
4. To recognize a duty to tell the truth – The testimonial
quality of sincerity (Herrera, 1999).
XPNs: There is prima facie evidence of incompetency in
the following:
1. The fact that a person has been recently found of
unsound mind by a court of competent jurisdiction; or
2. That one is an inmate of an asylum. (Torres v. Lopez, 48
Phil. 772)
Time when the witness must possess the
qualifications
The qualifications and disqualifications of witnesses are
determined as of the time said witnesses are produced for
examination in court or at the taking of their depositions
(Regalado, 2008).
Who may be witnesses
All persons who:
1. Can perceive and in perceiving;
2. Can make known their perception to others (Sec. 20,
Rule 130);
NOTE: The ability to make known the perception of
the witness to the court involves two factors: (a) the
 Evidence
ability to remember what has been perceived; and 91116, Jan. 24, 1991; People v. Baid, G.R. No. 129667, July
(b) the ability to communicate the remembered 31, 2000).
perception. If he cannot remember what he
perceived, he cannot be a competent witness (Riano, Findings on the credibility of a witness
2016).
3. Must take either an oath or an affirmation (Sec. 1, GR: The determination of credibility of witnesses is
Rule 132; Riano, 2016); and properly within the domain of the trial court as it is in the
4. Must not possess the disqualifications imposed by best position to observe their demeanor and bodily
law or the rules (Riano, 2016). movements. The findings of the trial court with respect to
the credibility of witnesses and their testimonies are
COMPETENCY vs. CREDIBILITY OF A WITNESS entitled to great respect, and even finality. (Llanto v.
Alzona, G.R. No. 150730, January 31, 2005)
Competency Credibility
of Witness of Witness XPNs:
Refers to a witness who Refers to a witness whose
can perceive, and in testimony is believable 1. The lower court has reached conclusions that are
perceiving, can make clearly unsupported by evidence; or
known his perception to 2. It has overlooked some facts or circumstances of
others weight and influence which, if considered, would
affect the result of the case (People vs. Dalag, G.R. No.
Is a matter of law or a Refers to the weight and 129895, April 30, 2003).
matter of rule trustworthiness or
reliability of the DISCQUALIFICATIONS OF WITNESSES
It also includes the testimony
absence of any of the The following are the disqualifications of a witness:
disqualifications imposed
upon a witness. 1. Disqualification by reason of mental incapacity or
(Riano, 2016); (2004 Bar) immaturity (Sec. 21, Rule 130);
2. Disqualification by reason of marriage (Sec. 22, Rule
NOTE: GR: Discrepancies between the statements of the 130);
affiant in his affidavit and those made by him on the 3. Disqualification by reason of death or insanity of
witness stand do not necessarily discredit him because it adverse party (Sec. 23, Rule 130); and
is a matter of judicial experience that an affidavit, being 4. Disqualification by reason of privileged
taken ex parte, is almost always incomplete and often communication:
inaccurate.
a. Marital privilege;
XPN: The credibility of witnesses will be impaired if: b. Attorney-client privilege;
c. Doctor-patient privilege;
1. The omission in the affidavit refers to a very d. Minister-penitent privilege; or
important detail of the incident that one relating the e. Public officer as regards communications made
incident as an eyewitness would not be expected to in official confidence (Sec. 24, Rule 130).
fail to mention; or
2. When the narration in the sworn statement NOTE: The qualifications and disqualifications of
substantially contradicts the testimony in court. witnesses are determined as of the time they are
produced for examination in court or at the taking of the
The point of inquiry is whether the omission is depositions. Blood relationship does not disqualify a
important or substantial (People vs. Calegan, G.R. No. witness (Bernardo, 2008, citing Angelo v. CA, G.R. No.
93846, June 30, 1994). 83392, June 26, 1992).

Credibility of a witness Absolute disqualification vs. Relative disqualification

A testimony must not only come from a credible witness, Absolute Relative
but must be credible in itself, tested by human experience, Disqualification Disqualification
observation, common knowledge and accepted conduct The proposed witness is The proposed witness is
that has evolved through the years (People vs. Mirandilla prohibited to take the prohibited to testify only
Jr., G.R. No. 186417, July 27, 2011). witness stand on certain matters
(Herrera, 1999). specified under Secs. 23
NOTE: Mental unsoundness of the witness which and 24, Rule 130 due to
occurred at the time of taking his testimony, affects only interest or relationship,
his credibility. Nevertheless, as long as the witness can or to privileges of other
convey ideas by words or signs and give sufficiently parties (Ibid.).
intelligent answers to questions propounded, she is a 1. Disqualification by 1. Disqualification by
competent witness even if she is feeble-minded or is a reason of mental reason of death or
mental retardate or is a schizophrenic (People v. De Jesus, incapacity or insanity of the
G.R. No. L-39087, Apr. 27, 1984; People v. Gerones, G.R. No. immaturity adverse party (Dead

325
 REMEDIAL LAW

(Sec. 21, Rule 130). Man’s Statute) (Sec.
23, Rule 130)
2. Disqualification by 2. Disqualification by
reason of marriage reason of privileged
(Sec. 22, Rule 130) communication (Sec.
24, Rule 130)
Tests considered in determining insanity of a person
1. Test of cognition – complete deprivation of
intelligence; and
2. Test of volition - total deprivation of freedom of the
will.

Conviction of a crime as a ground for disqualification NOTE: The test of cognition is the applicable test in the
Philippines (People vs. Pascual, G.R. No. 95029, March 24,
GR: Conviction of a crime is not a ground for 1993).
disqualification as a witness (Sec. 20, Rule 130). ---

XPNs: Unless otherwise provided by law, such as the
following:
1. Those who have been convicted of falsification of a
document, perjury or false testimony are prohibited
from being witnesses to a will (Art. 821, NCC);
2. Those who have been convicted of an offense
involving moral turpitude cannot be discharged to
become a State witness (Sec. 17, Rule 119; Sec. 10, R.A.
6981);
Those who fall under the disqualification provided under
Secs. 21-24, Rule 130
DISQUALIFICATION BY REASON OF
MENTAL INCAPACITY OR IMMATURITY
(Sec. 21, Rule 130)
The following persons cannot be witnesses:
Q: Cyrus, a deaf-mute, was presented as a witness in a
criminal case. The accused objected to the
presentation of the testimony of Cyrus on the ground
that, being a deaf-mute, he was not a competent
witness. Is the contention of the accused correct?
A: NO. A deaf-mute is not incompetent as a witness. Deaf-
mutes are competent witnesses where they can:
1. Understand and appreciate the sanctity of an oath;
2. Comprehend facts they are going to testify on; and
3. Communicate their ideas through a qualified
interpreter (People v. Tuangco, G.R. No. 130331,
November 22, 2000).
DISQUALIFICATION BY REASON OF MARRIAGE
(MARITAL DISQUALIFICATION)
(Sec. 22, Rule 130)

1. Those whose mental condition, at the time of their
production for examination, is such that they are
incapable of intelligently making known their
perception to others (Sec. 21 (a), Rule 130);
NOTE: Neither feeble-mindedness nor mental retardation
is a sufficient ground for a witness to be declared
incompetent. The acceptance of a person’s testimony
depends on its nature and credibility or, otherwise put,
the quality of his perceptions and the manner he can make
them known to the court (People of the Philippines v. De
Jesus, G.R. No. L-39087, April 27, 1984; People of the
Philippines v. Salomon, G.R. No. 96848, January 21, 1994).
2. Children whose mental maturity is such as to render
them incapable of perceiving the facts respecting
which they are examined and of relating them
truthfully (Sec. 21 (b), Rule 130).
When incompetence of the witness by reason of
mental incapacity or immaturity should exist
During their marriage, neither the husband nor the wife
may testify for or against the other without the consent of
the affected spouse, except in a civil case by one against
the other, or in a criminal case for a crime committed by
one against the other or the latter’s direct descendant or
descendants (Sec. 22, Rule 130). (2000, 2004, 2006 Bar)
Rationale for the Disqualification
1. There is identity of interests between husband and
wife;
2. If one were to testify for or against the other, there is
consequent danger of perjury;
3. The policy of the law is to guard the security and
confidences of private life, even at the risk of an
occasional failure of justice, and to prevent domestic
disunion and unhappiness; and
4. Where there is want of domestic tranquility there is
danger of punishing one spouse through the hostile
testimony of the other (Alvarez vs. Ramirez, G.R. No.
143439, October 14, 2005).

Mental Incapacity
The incompetence of the
witness must exist, not at
the time of his perception
of the facts, but at the
time he is produced for
examination, and consists
in his inability to
intelligently make known
what he has perceived
(Riano, 2016).
Mental Immaturity Requisites for the applicability of spousal immunity
The incompetence of the
witness must occur at the 1. That the spouse for or against whom the testimony
time the witness of the other is offered is a party to the case;
perceives the event 2. That the spouses are legally married (valid until
including his incapability annulled);
to relate his perceptions 3. That the testimony is offered during the existence of
truthfully (Ibid.). the marriage; and
4. That the case is not one against the other (Herrera,
1999).
Exceptions to spousal immunity

326
 Evidence
1. Consent is given by the party-spouse;
2. In a civil case filed by one against the other;
3. In a criminal case for a crime committed by one
against the other or the latter’s direct descendants or
ascendants (Sec. 22, Rule 130); or
4. Where the testimony was made after the dissolution
of the marriage (Riano, 2016).
Waiver of spousal immunity
Objections to the competency of a husband or wife to
testify in a criminal prosecution against the other may be
waived as in the case of the other witnesses generally.
Thus, the accused waives his or her privilege by calling the
other spouse as a witness for him or her. It is also true that
objection to the spouse's competency must be made when
he or she is first offered as witness, and that the
incompetency may be waived by the failure of the accused
to make timely objection to the admission of the spouse's
testimony, although knowing of such incompetency, and
the testimony admitted (People vs. Francisco, 78 Phil. 694,
citing 3 Wharton's Criminal Evidence, 11th Ed., Section
1205, pp. 2060-2061).
Extent of prohibition
The prohibition extends not only to a testimony adverse
to the spouse but also to a testimony in favor of the
spouse. It also extends to both criminal and civil cases
(Riano, 2016), and not only consists of utterances but also
the production of documents (Riano, 2016, citing State v.
Bramlet, 114 S. C. 389, 103 S.E. 755).
Who can claim spousal immunity
The privilege to object may be claimed only by the spouse-
party and not the other spouse who is offered as a witness
(Herrera, 1999, citing Ortiz vs. Arambulo, 8 Phil. 98).
Testimony where spouse is accused with others
The spouse could testify in a murder case against the
other co-accused, who were jointly tried with the
accused-spouse. This testimony cannot, however, be used
against accused-spouse directly or through the guise of
taking judicial notice of the proceedings in the murder
case without violating the marital disqualification rule, if
the testimony is properly objected (People v. Quidato, Jr.,
G.R. No. 117401, October 1, 1998).
Q: Ivy was estranged from her husband Bob for more
than a year due to Bob’s suspicion that she was having
an affair with Jeff, their neighbor. Ivy was temporarily
living with her sister in Pasig City. For unknown
reasons, the house of Ivy’s sister was burned, killing
the latter. Ivy survived. Ivy saw her husband in the
vicinity during the incident. Later, Bob was charged
with arson in an Information filed with the RTC, Pasig
City. During the trial, the prosecutor called Ivy to the
witness stand and offered her testimony to prove that
her husband committed arson. Can Ivy testify over the
objection of her husband on the ground of marital
privilege? (2006 Bar)
A: YES. The marital disqualification rule is aimed at
protecting the harmony and confidences of marital
relations. Hence, where the marital and domestic
relations are so strained that there is no more harmony to
be preserved nor peace and tranquility which may be
disturbed, the marital disqualification no longer applies.
The act of Bob in setting fire to the house of his sister-in-
law, knowing fully well that his wife was there, is an act
totally alien to the harmony and confidences of marital
relation which the disqualification primarily seeks to
protect. The criminal act complained of had the effect of
directly and vitally impairing the conjugal relation. It
underscored the fact that the marital and domestic
relations between her and the accused-husband have
become so strained that that there is no more harmony,
peace or tranquility to be preserved. (Alvarez v. Ramirez,
G.R. No. 143439, October 14, 2005)
---
Q: Alex and Bianca are legally married. Alex is
charged in court with the crime of serious physical
injuries committed against Carding, son of Bianca and
step-son of Alex. Bianca witnessed the infliction of the
injuries on Carding by Alex. The public prosecutor
called Bianca to the witness stand and offered her
testimony as an eyewitness. Counsel for Alex objected
on the ground of the marital disqualification rule
under the Rules of Court.
1. Is the objection valid?
2. Will your answer be the same if Bianca’s
testimony is offered in a civil case for recovery
of personal property filed by Carding against
Alex? (2000, 2004 Bar)

Marrying the witness A:

1.
An accused can effectively “seal the lips” of a witness by
marrying the witness. As long as a valid marriage is in
existence at the time of the trial, the witness-spouse
cannot be compelled to testify – even where the crime
charged is against the witness’ person, and even though
the marriage was entered into for the express purpose of
suppressing the testimony (Herrera, 1999, citing [I] A.L.R.
2d 649).
---
2.
Testimony by the estranged spouse
NO. While neither the husband nor the wife may
testify against each other without the consent of the
affected spouse, one exception is if the testimony of
the spouse is in a criminal case for a crime committed
by one against the other or the latter’s direct
descendants or ascendants (Sec. 22, Rule 130). Here,
Carding is the direct descendant of Bianca, the wife
of Alex. Hence, the testimony of Bianca falls under the
exception to the marital disqualification rule.
NO. The marital disqualification rule applies this
time. The exception provided by the rules is in a civil
case by one spouse against the other. Here, the case

327
 REMEDIAL LAW
involves a case by Carding for the recovery of
personal property against Bianca’s spouse Alex.
DISQUALIFICATION BY REASON OF
DEATH OR INSANITY OF THE ADVERSE PARTY
(DEAD MAN’S STATUTE /
SURVIVING PARTY RULE)
(Sec. 23, Rule 130)
Parties or assignors of parties to a case, or persons in
whose behalf a case is prosecuted, against an executor or
administrator or other representative of a deceased
person, or against a person of unsound mind, upon a claim
or demand against the estate of such deceased person or
against such person of unsound mind, cannot testify as to
any matter of fact occurring before the death of such
deceased person or before such person became of
unsound mind (Sec. 23, Rule 130).
Purpose of Dead Man’s Statute
It is designed to close the lips of the party plaintiff when
death has closed the lips of the party defendant, in order
to remove from the surviving party the temptation to do
falsehood and the possibility of fictitious claims against
the deceased (Goñi v. CA, G.R. No. L-27434, September 23,
1986).
In order to prevent perjury considering that the other
party cannot say anything anymore because he/she is
dead.
NOTE: Inasmuch as the statutes are designed to protect
the interests of a deceased or incompetent person, they
do not operate to exclude testimony which is favorable to
the representative of such person. This is the conclusion,
also, where the representative is not a party (Herrera,
1999, citing Jones on Evidence, 6 th Ed., p. 632).
Applicability of Dead Man’s Statute
This rule “applies only to a civil case or a special
proceeding over the estate of a deceased or insane
person” (Regalado, Remedial Law Compendium, Vol. II,
2008 Ed., p.743).
Requisites for the applicability of Dead Man’s Statute
1. The defendant in the case is the executor or
administrator or a representative of the deceased or
the person of unsound mind;
2. The suit is upon the claim by the plaintiff against the
estate of said deceased or person of unsound mind;
3. The witness is the plaintiff, or an assignor of that
party, or a person in whose behalf the case is
prosecuted; and
4. The subject of the testimony is as to any matter of fact
occurring before the death of such deceased person
or before such person became of unsound mind (Sec.
23, Rule 130).
Extent of disqualification by reason of death or
insanity of the adverse party
328
It constitutes only a partial disqualification as the witness
is not completely disqualified but is only prohibited from
testifying on the matters therein specified (Regalado,
2008).
Who may invoke the protection of the Dead Man’s
Statute?
The persons entitled to invoke the protection of the dead
man’s statute are the executor, administrator and any
other representative of a deceased person, when they are
the defendants in a claim against the estate of the
deceased. The protection may likewise be invoked by a
person of unsound mind in a claim filed against him
(Riano, 2016).
The following cannot testify as to any matter of fact
occurring before the death of such deceased person or
before such person became of unsound mind:
1. Parties or assignors of parties to a case or persons
in whose behalf a case is prosecuted;
2. Against an executor or administrator or other
representative of a deceased person, or against a
person of unsound mind
The subject matter of the action is a claim or demand
against the estate of such deceased person or against
such person of unsound mind. (2001, 2007 Bar)
Waiver of the protection of the Dead Man’s Statute
The protection may be waived by:
1. Failing to object to the testimony;
2. Cross-examining the witness on the prohibited
testimony; or
3. Offering evidence to rebut the testimony (Riano,
2016).
Cases not covered by the Dead Man’s Statute
1. The rule has no application to mere witnesses (Reyes
v. Wells, 54 Phil. 102) who are neither parties to the
case, their assignors, nor persons in whose behalf the
case is prosecuted (Guerrero, et al. v. St. Clare’s Realty
Co., Ltd., et al., G.R. No. 58164, September 2, 1983), nor
to a nominal party, nor to officers and stockholders
of a plaintiff corporation (Lichauco v. Atlantic Gulf &
Pacific Co. of Manila, 84 Phil. 330);
NOTE: The rule is exclusive and cannot be construed
to extend its scope by implication so as to disqualify
persons not mentioned therein. Mere witnesses who
are not included in the above enumeration are not
prohibited from testifying as to a conversation or
transaction between the deceased and a third
person, if he took no active part therein (Sanson v. CA,
G.R. No. 127745, April 22, 2003).
2. When a counterclaim is set up by the administrator
[or executor or representatives] of the estate, the
case is removed from the operation of the dead man’s
statute (Riano, 2016). When it is the executor or
administrator or representatives of the estates that
 Evidence
sets up the counterclaim, the plaintiff, herein Dead Man’s Statute vs. Marital Disqualification Rule
respondent, may testify to occurrences before the
death of the deceased to defeat the counterclaim Dead Man’s Statute Marital Disqualification
(Sunga-Chan v. Chua, G.R. No. 143340, August 15, Rule
2001); Only a partial A complete and absolute
3. The adverse party is competent to testify to disqualification as the disqualification
transactions or communications with the deceased witness is only prohibited
or incompetent person which were made with an from testifying on the
agent of such person in cases in which the agent is matters therein specified
still alive and competent to testify. But the testimony
of the adverse party must be confined to those Applies only to a civil case GR: Applies to a civil or
transactions or communications which were had or special proceeding criminal case
with the agent (Herrera, 1999, citing Goñi v. CA, G.R. over the estate of a
No. L-27434, September 23, 1986); deceased or insane XPN: In a civil case by one
4. In land registration cases instituted by the decedent’s person spouse against the other,
representatives, this prohibition does not apply as or in a criminal case for a
the oppositors are considered defendants and may, crime committed by one
therefore, testify against the petitioner (Nañagas v. spouse against the other
Mun. of San Narciso, 53 Phil. 719). This prohibition or the latter’s direct
does not also apply in cadastral cases since there is descendants or
no plaintiff or defendant therein (Tongco v. Vianzon, ascendants
G.R. No. 27498, September 20, 1927);
5. The disqualification under this rule is waived if the It prohibits testimony It prohibits testimony
defendant does not timely object to the admission of that is against the estate that is for or against the
such evidence or testifies on the prohibited matters of a deceased person or party-spouse (Sec. 22,
(Asturias v. CA, G.R. No. L-17895, September 30, 1963) against a person of Rule 130).
or cross-examines thereon (Tongco v. Vianzon, unsound mind (Sec. 23,
supra); Rule 130).
6. The rule will not apply where the plaintiff is the (Regalado, 2008)
executor or administrator as representative of the
deceased, or if the plaintiff is the person of unsound DISQUALIFICATION BY REASON OF
mind (Riano, 2016); PRIVILEGED COMMUNICATION
7. Where the testimony is intended to prove a
fraudulent transaction of the deceased (Ong Chua v. Scope of disqualification by reason of privileged
Carr, G.R. No. L-29512, January 17, 1929), provided communication
such fraud is first established by evidence aliunde
(Babao v. Perez, G.R. No. L-8334, December 28, 1957); The disqualification by reason of privileged
8. Negative testimony, that is, testimony that a fact did communication applies to both civil and criminal cases
not occur during the lifetime of the deceased except doctor-patient privilege, which is applicable only
(Mendezona v. Vda. De Goitia, G.R. No. L-31739, March in civil cases. Unless waived, the disqualification under
11, 1930); Sec. 24 remains even after the various relationships
9. Testimony on the present possession by the witness therein have ceased to exist.
of a written instrument signed by the deceased (4
Martin, op. cit., p. 164), as such fact exists even after Who may assert the privilege?
the decedent’s demise (Regalado, 2008);
10. When the defendants, as heirs of the deceased, are The holder of the privilege, authorized persons and
sued in their personal capacity (Go Chi Gun v. Co Cho, persons to whom privileged communication were made
96 Phil. 622); and may assert the privilege (Herrera, 1999).
11. In an action against a partnership, plaintiff partners
may testify against a deceased partner. (Fortis v. MARITAL PRIVILEGE
Gutierrez Hermanos, 6 Phil. 100 [SEC. 24(A), RULE 130]

--- The husband or the wife, during or after the marriage,

Q: True or False. The surviving parties rule bars Maria
from testifying for the claimant as to what the
deceased Jose had said to her, in a claim filed by Pedro
against the estate of Jose. Explain. (2001, 2007 Bar)
A: FALSE. The rule bars only a party plaintiff, or his
assignor, or a person in whose behalf a case is prosecuted
(Sec. 23, Rule 130). Maria is merely a witness and is not
one of those enumerated as barred from testifying (Riano,
2016).
cannot be examined without the consent of the other as to
any communication received in confidence by one from
the other during the marriage except in a civil case by one
against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct
descendants or ascendants (Sec. 24(a), Rule 130).
Purpose of marital privilege
The society has a deeply rooted interest in the
preservation of peace in families and in the maintenance
of the sacred institution of marriage, and its strongest

329
 REMEDIAL LAW
safeguard is to preserve with zealous care any violation of XPN: When there is collusion and voluntary disclosure to
those hallowed confidences inherent in, and inseparable a third party, that third party becomes an agent and
from, the marital status. Therefore, the law places the ban cannot testify (Francisco, 1993).
of its prohibition upon any breach of the confidence
between husband and wife by declaring all confidential ---
communications between them to be incompetent matter
for either of them to expose as witness (Herrera, 1999, Q: In June 1998, A told B that he killed C. After a year,
citing Mercer v. State, 40 Fla. 216, 24 50154). A married B. Upon the offer of testimony of B for the
alleged killing of C, (i) can A validly make an
Requisites for the application of marital privilege objection? (ii) Suppose the testimony was offered at
the time the marriage between A and B was already
1. There must be a valid marriage between the husband terminated, can A still validly object, this time on the
and wife; ground of marital privilege rule under Sec. 24? (iii)
2. There is a communication received in confidence by Suppose the information received by B was
one from the other; communicated to A during their marriage, can A
3. The confidential communication was received validly object to the testimony of B if it was offered
during the marriage (Riano, 2016); and after the dissolution of their marriage on the ground
4. The spouse against whom such evidence is being of marital disqualification rule under Sec. 22?
offered has not given his or her consent to such
testimony (Regalado, 2008). A:
i. YES. Irrespective of the fact that B was informed of
Cases when marital privilege is inapplicable the killing before her marriage to A, still, the
testimony was offered during their marriage, which
1. In a civil case by one against the other; or brings it into the ambit of the marital
2. In a criminal case for a crime committed by one disqualification rule under Sec. 22.
against the other or the latter’s direct descendants or ii. NO. The testimony even if confidential was not
ascendants (Sec. 24(a), Rule 130). communicated to B during the time of marriage, but
3. Information acquired by a spouse before the before the marriage.
marriage even if received confidentially will not fall iii. NO. He can only object based on the marital
squarely within the privilege (Riano, 2016). disqualification rule if the testimony was offered
during their marriage and not to testimony offered
Sec. 22 vs. Sec. 24(a) after the dissolution of the marriage. The proper
objection must be based on marital privilege rule
Disqualification By Disqualification By under Sec. 24 because such defense is applicable
Reason of Marriage Reason of Marital even after the dissolution of marriage provided that
(Sec. 22) Privilege the communication was made confidentially to B
(Sec. 24(a)) during their marriage.
Can be invoked only if one Can be claimed whether
of the spouses is a party the other spouse is a ---
to the action party to the action
Applies only if the Can be claimed even after Q: James, an alien, was criminally charged of
marriage is existing at the the marriage has been promoting and facilitating child prostitution and
time the testimony is dissolved other sexual abuses under R.A. 7610. The principal
offered witness against him was his Filipina wife, Conching.
Constitutes a total Applies only to Earlier, she had complained that James’ hotel was
prohibition against any confidential being used as a center for sex tourism and child
testimony for or against communications between trafficking. The defense counsel for James objected to
the spouse of the witness the spouses the testimony of Conching at the trial of the child
(Regalado, 2008) prostitution case and the introduction of the
Can no longer be invoked The spouse affected by affidavits she executed against her husband as a
once the marriage is the disclosure of the violation of spousal confidentiality and marital
dissolved information or testimony privilege rule. It turned out that Patring, the minor
may object even after the daughter of Conching by her first husband who was a
dissolution of the Filipino, was molested by James earlier. Thus,
marriage (Riano, 2016) Conching had filed for legal separation from James
since last year. May the court admit the testimony and
Other items of communication overheard or in affidavits of the wife, Conching, against her husband,
presence of third parties James, in the criminal case involving child
prostitution? Reason. (2004 Bar)
GR: Third persons who, without the knowledge of the
spouses, overhear the communication are not disqualified A: YES. If the testimony and affidavit of the wife are
to testify. evidence used in the case against her husband for child
prostitution involving her daughter, the evidence are
admissible. The marital privileged communication rule
under Sec. 24 of Rule 130, as well as the marital

330
 Evidence
disqualification rule under Sec. 22 of the same rule, do not
apply to and cannot be invoked in a criminal case
committed by a spouse against the direct descendants of
the other.
A crime committed by the husband against the daughter
of his wife is considered a crime committed against the
wife and directly attacks or vitally impairs the marital
relations. (Riano, 2016, citing Ordoño v. Daquigan, G.R. No.
L-39012, January 31, 1975)
ATTORNEY-CLIENT PRIVILEGE
[SEC. 24(B), RULE 130]
An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to
him, or his advice given thereon in the course of, or with a
view to, professional employment, nor can an attorney's
secretary, stenographer, or clerk be examined, without
the consent of the client and his employer, concerning any
fact the knowledge of which has been acquired in such
capacity (Sec. 24(b), Rule 130). (2008, 2010 Bar)
NOTE: The Rules safeguarding privileged
communications between attorney and client shall apply
to similar communications made to or received by the law
student, acting for the legal clinic (Sec. 3, Rule 138-A). The
privilege does not extend to communications where the
client’s purpose is the furtherance of a future intended
crime or fraud, or for the purpose of committing a crime
or a tort, or those made in furtherance of an illicit activity.
(Riano, 2016)
Purpose of Attorney-Client Relationship
To encourage full disclosure by client to her attorney of all
pertinent matters, so as to further the administration of
justice (Herrera, 1999).
Requisites for the application of the privilege:
1. There is a communication made by the client to the
attorney, or an advice given by the attorney to the
client;
2. The communication or advice is given in confidence
(Riano, 2016)
3. The privilege is invoked with respect to a
confidential communication between them in the
course of or with a view to professional employment;
and
4. The client has not given his consent to the attorney’s
testimony thereon; or if the attorney’s secretary,
stenographer or clerk is sought to be examined, that
both the client and the attorney have not given their
consent thereto (Regalado, 2008).
Test in applying the attorney-client privilege
The test is whether the communications are made to an
attorney with a view of obtaining from him professional
assistance or advice regardless of whether there is a
pending or merely impending litigation or any litigation
(Herrera, 1999).
331
NOTE: The present rules do not require a perfected
attorney-client relationship for the privilege to exist. It is
enough that the communication or advice be “with a view
to” professional employment (Riano, 2016).
Confidential communication
It refers to information transmitted by voluntary act of
disclosure between attorney and client in confidence and
by means which, so far as the client is aware, discloses the
information to no third person other than one reasonably
necessary for the transmission of the information or the
accomplishment of the purpose for which it was given
(Mercado v. Vitriolo, A.C. No. 5108, May 26, 2005).
Waiver of Attorney-Client Privilege
The privilege belongs to the client and if he waives the
privilege, no one else including the attorney can invoke it
(Riano, 2016, citing In Re: Young’s Estate, 33 Utah 382, 94
P 731, 732).
Cases when the privilege is inapplicable
If the communication is:
1. Intended to be made public;
2. Intended to be communicated to others;
3. Intended for an unlawful purpose;
NOTE: Statements and communications regarding the
commission of a crime committed by the party, which he
communicated and consulted to an attorney, are
privileged communications. Contrarily, communications
between attorney and client having to do with the client’s
contemplated criminal acts, or in aid or furtherance
thereof, are not covered by the cloak of attorney-client
privilege (People of the Philippines v. Sandiganbayan, et al.,
G.R. No. 115439-41, July 16, 1997).
4. Received from third persons not acting in behalf or
as agents of the client; or
5. Made in the presence of third parties who are
strangers to the attorney-client relationship
(Regalado, 2008).
Applicability of the rule regarding the identity of the
client
GR: A lawyer may not invoke the privilege and refuse to
divulge the name or identity of his client.
XPNs:
1. Where a strong possibility exists that revealing the
client’s name would implicate the client in the very
activity for which he sought the lawyer’s advice;
2. Where disclosure would open the client to civil
liability; or
3. Where the government’s lawyers have no case
against an attorney’s client unless, by revealing the
client’s name, the said name would furnish the only
link that would form the chain of testimony
necessary to convict an individual for a crime (Regala
 REMEDIAL LAW
vs. Sandiganbayan, G.R. No. 105938, September 20,
1996).
---
Q: On August 15, 2008, Edgardo committed estafa
against Petronilo in the amount of 3 million pesos.
Petronilo brought his complaint to the National
Bureau of Investigation, which found that Edgardo
had visited his lawyer twice, the first time on August
14, 2008 and the second August 16, 2008; and that
both visits concerned the swindling of Edgardo.
During the trial, the RTC issued a subpoena ad
testificandum to Edgardo’s lawyer for him to testify
the conversations during their first and second
meetings. May the subpoena be quashed on the
ground of privileged communication? Explain fully.
(2008 Bar)
A: NO. The subpoena may not be simply quashed on the
allegation that the testimony to be elicited constitutes
privileged communication. It may be noted that the
accused committed the crime swindling on August 15,
2008, whereas he first visited his lawyer on August 14,
2008 or before he committed the swindling.
Clearly the conversations the accused had with his lawyer
before he committed the swindling cannot be protected
by the privilege between attorney and client because the
crime had not been committed yet and it is no part of a
lawyer’s professional duty to assist or aid in the
commission of a crime; hence not in the course of
professional employment.
The second visit by accused Edgardo to his lawyer on the
next day (August 16, 2008) after the swindling was
committed may also suffer from the same infirmity as the
conversations had during their first meeting inasmuch as
there could not be a complaint made immediately after
the estafa was committed. The privilege covering a
lawyer-client relation under Sec. 24(b), Rule 130, may not
be invoked, as it is not a ground for quashal of a subpoena
ad testificandum under Sec. 4, Rule 21 of the Rules of
Court.
---
Q: A tugboat owned by SPS sank in Manila Bay while
helping to tow another vessel, drowning five (5) of the
crew in the resulting shipwreck. At the maritime
board inquiry, the four (4) survivors testified. SPS
engaged Atty. Ely to defend against potential claims
and to sue the company owning the other vessel for
damages to the tug. Ely obtained signed statements
from the survivors. He also interviewed other
persons, in some instances making memoranda. The
heirs of the five (5) victims filed an action for damages
against SPS.
Plaintiff’s counsel sent written interrogatories to Ely,
asking whether statements of witnesses were
obtained; if written, copies were to be furnished; if
oral, the exact provisions were to be set forth in
detail. Ely refused to comply, arguing that the
332
documents and information asked are privileged
communication. Is the contention tenable? Explain.
(2008 Bar)
A: NO. The documents and information sought to be
disclosed are not privileged. They are evidentiary matters
which will eventually be disclosed during the trials. What
is privileged, under Sec. 24(b) of Rule 130, is (a) the
communication made by the client to the attorney, or (b)
the advice given by the attorney, in the course of, or with
the view to professional employment. The information
sought is neither a communication by the client to the
attorney nor an advice by the attorney to his client.
(Riano, 2016)
NOTE: The weight of authority supports the view that
when the client and attorney become embroiled in a
controversy between themselves, as in action filed for
payment of attorney’s fees or for damages against the
negligence of the attorney, the privilege is removed from
the attorney’s lips (Riano, 2016).
PHYSICIAN AND PATIENT PRIVILEGE
[SEC. 24(C), RULE 130]
A person authorized to practice medicine, surgery or
obstetrics cannot in a civil case, without the consent of the
patient, be examined as to any advice or treatment given
by him or any information which he may have acquired in
attending such patient in a professional capacity, which
information was necessary to enable him to act in that
capacity, and which would blacken the reputation of the
patient (Sec. 24(c), Rule 130).
Purpose of the privilege
The privilege is intended to facilitate and make safe, full
and confidential disclosure by patient to doctor of all
facts, circumstances, and symptoms, unrestricted by
apprehension of their subsequent and enforced
disclosure and publication on the witness stand, to the
end that the physician may form a correct opinion, and be
enabled safely and efficaciously to treat his patient
(Herrera, 1999).
Requisites for the applicability of the privilege
1. The privilege is claimed in a civil case;
NOTE: This privilege cannot be claimed in a criminal
case presumably because the interest of the public in
criminal prosecution should be deemed more
important than the secrecy of the communication
(Riano, 2016).
2. The person against whom the privilege is claimed is
one duly authorized to practice medicine, surgery or
obstetrics;
3. Such person acquired the information while he was
attending to the patient in his professional capacity;
4. The information was necessary to enable him to act
in that capacity; and
5. The information is confidential and, if disclosed,
would blacken the reputation of the patient (Krohn v.
 Evidence
CA, G.R. No. 108854, June 14, 1994, citing Lim v. CA, G.R.
No. 91114, September 25, 1992).
Information which cannot be disclosed
1. Any advice given to the client;
2. Any treatment given to the client;
3. Any information acquired in attending such patient
provided that the advice, treatment or information
was made or acquired in a professional capacity and
was necessary to enable him to act in that capacity;
and
4. That the information sought to be disclosed would
tend to blacken the reputation of the patient (Sec.
24(c), Rule 130).
Waiver of Privilege; Express or Implied
1. It may be by a contract as in medical or life insurance.
2. When there is disclosure by the patient of the
information, there is necessarily, a waiver.
3. When the patient answers questions on matters which
are supposedly privileged on cross-examination, the
waiver also exists (Riano, 2016). 4. There could also be
waiver by operation of law (Sec. 4, Rule 28).
Cases when the Privilege is inapplicable:
1. The communication was not given in confidence;
2. The communication is irrelevant to the professional
employment;
3. The communication was made for an unlawful
purpose;
4. The information was intended to be made public; or
5. There was a waiver of the privilege either by
provisions of contract or law (Regalado, 2008).
NOTE: It is essential that at the time the communication
was made, the professional relationship is existing, that is,
while the doctor was attending to the patient for curative,
preventive or palliative treatment. The treatment may
have been given at the behest of another, the patient being
in extremis (Regalado, 2008).
---
Q: In a proceeding for annulment of marriage on the
ground of psychological incapacity, the husband
presented a confidential psychiatric report prepared
by a physician after examining his wife, but without
the knowledge of the physician. Can the wife invoke
the physician patient privilege?
A: NO. The person against whom the privilege is claimed
is not one duly authorized to practice medicine, surgery,
or obstetrics. He is simply the patient's husband who
wishes to testify on a document executed by medical
practitioners. Neither can his testimony be considered a
circumvention of the prohibition because his testimony
cannot have the force and effect of the testimony of the
physician who examined the patient and executed the
report. The proper objection should be hearsay and not
privileged communication. (Krohn v. CA, G.R. No. 108854,
June 14, 1994)
---
333
Q: Aimee sought to offer as evidence the testimony of
Dr. Naval to prove that Bob is not the illegitimate son
of Yuring as the latter was sterile. Bob objected to the
admissibility of the said testimony arguing that the
same is covered by the physician-patient privilege
because the testimony would blacken the reputation
of Yuring. It was alleged that Yuring became sterile
because he contracted gonorrhea. Aimee argues that
Yuring is long dead and, as such, the privilege may not
be invoked.
1. Is the testimony of Dr. Naval covered by the
physician-patient privilege?
2. Does the fact that Yuring is long dead bar the
application of the physician-patient privilege?
A:
1. YES. Yuring's sterility arose when he contracted
gonorrhea, a fact which most assuredly blackens his
reputation. In fact, given that society holds virility at
a premium, sterility alone, without the attendant
embarrassment of contracting a sexually-
transmitted disease, would be sufficient to blacken
the reputation of any patient.
2. NO. The privilege of secrecy is not abolished or
terminated because of death. The purpose of the law
would be thwarted and the policy intended to be
promoted thereby would be defeated, if death
removed the seal of secrecy, from the
communications and disclosures which a patient
should make to his physician. After one has gone to
his grave, the living is not permitted to impair his
name and disgrace his memory by dragging to light
communications and disclosures made under the
seal of the statute (Gonzales v. CA, G.R. No. 117740,
October 30, 1998).
PRIEST/MINISTER-PENITENT PRIVILEGE
[SEC. 24(D), RULE 130]
A minister or priest cannot, without the consent of the
person making the confession, be examined as to any
confession made to or any advice given by him in his
professional character in the course of discipline enjoined
by the church to which the minister or priest belongs (Sec.
24(d), Rule 130).
Purpose of the priest-penitent privilege
To allow and encourage individuals to fulfill their
religious, emotional or other needs by protecting
confidential disclosures to religious practitioners.
(Peralta, Jr., 2005, citing Evidence, Oregon State Bar
Committee on Continuing Legal Education)
Requisites for the applicability of the priest-penitent
privilege
1. The confession must have been made to the priest in
his professional character according to the discipline
of the church to which the priest or minister belongs
(Sec. 24(d), Rule 130); and
2. Communications made must be confidential and
must be penitential in character, e.g., under the seal
of the confessional (Regalado, 2008).
 REMEDIAL LAW
NOTE: The privilege also extends not only to a confession
made by the penitent but also to any advice given by the
minister or priest.
Extent of the priest-penitent privilege
The communication must be made pursuant to confession
of sins. Where the penitent discussed business
arrangements with the priest, the privilege does not
apply. (Riano, 2016)
PUBLIC OFFICER AS REGARDS
COMMUNICATIONS MADE
IN OFFICIAL CONFIDENCE
A public officer cannot be examined during his term of
office or afterwards, as to communications made to him in
official confidence, when the court finds that the public
interest would suffer by the disclosure (Sec. 24(e), Rule
130).
Rationale: General grounds of public policy
The right of the people to information on matters of public
concern shall be recognized. Access to official records, and
to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government
research data used as basis for policy development, shall
be afforded the citizen, subject to such limitations as
maybe provided by law. (Sec. 7, Article III, 1987
Constitution)
Requisites for its application
1. The holder of the privilege is the government, acting
through a public officer;
2. The communication was given to the public officer in
official confidence;
3. The communication was given during the term of
office of the public officer or afterwards;
4. The public interest would suffer by the disclosure of
the communication (Herrera, 1999).
Cases when the privilege is inapplicable and
disclosure will be compelled
1. The disclosure is useful to vindicate the innocence of
an accused person;
2. To lessen risk of false testimony;
3. The disclosure is essential to the proper disposition
of the case; or
4. The benefit to be gained by a correct disposition of
the litigation was greater than any injury which could
inure to the relation by a disclosure of information
(Francisco, 1996).
NOTE: The disclosure or non-disclosure is not dependent
on the will of the officer but on the determination by a
competent court (Riano, 2016).
Executive privilege
There are certain types of information which the
government may withhold from the public like military,
diplomatic and other national security secrets. (Riano,
334
2016)
---
Q: Secretary of Fisheries Nenito Abesamis received an
invitation for questioning in a hearing from the
Senate of the Philippines regarding the Fish Feeds
Scam. During the hearing, Abesamis didn’t answer the
questions propounded to him by Senator Renato
Pamintuan claiming that his position entitles him to
invoke the executive privilege. Is his contention
correct?
A: NO. As held in the case of Senate of the Philippines vs.
Ermita, G.R. No. 169777, April 25, 2006, the Court upheld
the doctrine of executive privilege but it found E.O. 464
partly constitutionally defective, specifically Secs. 2(b)
and 3 which required government officials below the
heads of executive departments to secure consent from
the President before appearing in congressional hearings
and investigations. The Court noted that E.O. 464 covers
persons, which is a misuse of the doctrine because the
privilege is to be properly invoked in relation to specific
categories of information and not categories of persons.
(Riano, 2016)
PARENTAL AND FILIAL PRIVILEGE
(SEC. 25, RULE 130)
No person may be compelled to testify against his parents,
other direct ascendants, children or other direct
descendants. (Sec. 25, Rule 130). (1998 Bar)
NOTE: Under the Family Code, no descendant shall be
compelled, in a criminal case, to testify against his parents
and grandparents. As an exception, the descendant may
be compelled to give his testimony in the following
instances:
1. When such testimony is indispensable in a crime
committed against said descendant; or
2. In a crime committed by one parent against the other.
(Riano, 2016, citing Art. 215, Family Code)
---
Q: A was convicted of raping his own daughter. His
son, an 8-year-old boy testified against him. Can he
object to the testimony on the ground of filial
privilege and invoke the incompetence of the child?
A: NO. The competency of his son is not affected by the
filial privilege rule. The Rule is not strictly speaking a
disqualification but refers to a privilege not to testify,
which can be invoked and waived like other privileges.
The son was not compelled to testify against his father but
chose to waive that filial privilege when he voluntarily
testified against the accused. (People v. Invencion, G.R. No.
131636, March 5, 2003)
---
Q: A married to B, killed the latter. One of the
witnesses was C, the mother of B, who was being
compelled to testify against A. Can A object on the
ground of parental privilege?
 Evidence
A: NO. C is not a direct ascendant of A but that of B, being
the mother of the latter. Thus, the privilege does not
belong to A.
---
Q: C is the child of the spouses H and W. H sued his wife
W for judicial declaration of nullity of marriage under
Article 36 of the Family Code. In the trial, the
following testified over the objection of W: C, H and D,
a doctor of medicine who used to treat W. Rule on W's
objections which are the following:
1. H cannot testify against her because of the rule on
marital privilege;
2. C cannot testify against her because of the
doctrine on parental privilege; and
3. D cannot testify against her because of the
doctrine of privileged communication between
patient and physician. (1998 Bar)
A:
NOTE: Privileged information cannot be otherwise
disclosed upon a production order issued by the court
pursuant to Rule 27. The said Rule sets an unequivocal
proviso that the documents, papers, books, accounts,
letters, photographs, objects or tangible things that may
be produced and inspected should not be privileged. On
the ground of public policy, the rules providing for
production and inspection of books and papers do not
authorize the production or inspection of privileged
matter; that is, books and papers which, because of their
confidential and privileged character, could not be
received in evidence. Such a condition is in addition to the
requisite that the items be specifically described, and
must constitute or contain evidence material to any
matter involved in the action and which are in the party’s
possession, custody or control. (Air Philippines
Corporation v. Pennswell Inc., G.R. No. 172835, December
13, 2007)
EXAMINATION OF A WITNESS

1. The rule of marital privilege cannot be invoked in the

GR: The examination of witnesses presented in a trial or
annulment case under Rule 36 of the Family Code
hearing shall be done in open court, and under oath or
because it is a civil case filed by one against the other
affirmation. Unless the witness is incapacitated to speak,
(Sec. 22, Rule 130).
or the question calls for a different mode of answer, the
2. W cannot invoke the privilege which belongs to the
answers of the witness shall be given orally (Sec. 1, Rule
child. C may testify if he wants to although he may not
132).
be compelled to do so (Sec. 25, Rule 130).
3. D, as a doctor who used to treat W, is disqualified to
NOTE: Open court examination allows the court the
testify against W over her objection as to any advice
opportunity to observe the demeanor of the witness and
or treatment given by him or any information which
allows the adverse party to cross-examine the witness
he may have acquired in his professional capacity
(Riano, 2016).
(Sec. 24 (c), Rule 130).
XPNs:
OTHER PRIVILEGED MATTERS
The testimony of the witness may not be given in open
1. The guardian ad litem shall not testify in any
court in the following cases:
proceeding concerning any information, statement,
or opinion received from the child in the course of
1. In civil cases, by depositions pursuant to and under
serving as guardian ad litem, unless the court finds it
the limitations of Rules 23 and 24 (Regalado, 2008);
necessary to promote the best interests of the child
2. In criminal cases, by depositions or conditional
(Sec. 5(e), Rule on Examination of a Child Witness);
examinations, pursuant to Secs. 12-15, Rule 119, and
2. Editors may not be compelled to disclose the source
Sec. 1, Rule 123, or by the records of the preliminary
of published news (R.A. 53, as amended by R.A. 1477);
investigation, under the circumstances of Sec. 1(f) of
3. Voters may not be compelled to disclose for whom
Rule 115 (Regalado, 2008);
they voted (Air Philippines v. Pennswell, Inc., G.R. No.
3. In criminal cases covered by the Rule on Summary
172835, December 13, 2007;
Procedure, the affidavits of the parties shall
4. Trade secrets (Air Philippines v. Pennswell, Inc., G.R.
constitute the direct testimonies of the witnesses
No. 172835, December 13, 2007);
who executed the same (Riano, 2016, citing Sec. 15,
5. Information contained in tax census returns (Ibid.);
Rule on Summary Procedure);
6. Bank deposits (Sec. 2, R.A. 1405);
4. In civil cases covered by the Rules on Summary
7. Information and statements made at conciliation
Procedure, the parties are merely required to submit
proceedings (Art. 233, Labor Code);
the affidavits of their witnesses and other pieces of
8. Institutions covered by the law and its officers and
evidence on the factual issues, together with their
employees who communicate a suspicious
position papers, setting forth the law and the facts
transaction to the Anti-Money Laundering Council
relied upon (Riano, 2016, citing Sec. 9, Rule on
(Sec. 6 of R.A. 9194 amending Sec. 9 of R.A. 9160); and
Summary Procedure); and
9. The prosecutor may not be compelled to present an
5. Under the Judicial Affidavit Rule, the judicial affidavit
informer to protect his identity and when his
shall take the place of direct testimonies of witnesses
testimony would be merely corroborative and
(Sec. 2, Judicial Affidavit Rule).
cumulative (Herrera, 1999).
Oath vs. Affirmation

335
 REMEDIAL LAW
An oath is an outward pledge made under an immediate
sense of responsibility to God or a solemn appeal to the
Supreme Being in attestation of the truth of some
statement. (Black’s Law Dictionary, 5th Ed., p. 966)
NOTE: The object of the rule is to affect the conscience of
the witness to compel him to speak the truth, and to lay
him open to punishment for perjury if he testifies falsely.
In order that one may be competent as a witness, it is not
necessary that he has a definite knowledge of the
difference between his duty to tell the truth after being
sworn and before, or that he is able to state it, but it is
necessary that he be conscious that there is a difference.
(People v. Bisda, G.R. No. 140895, July 17, 2003)
An affirmation is a substitute for an oath and is solemn
and formal declaration that the witness will tell the truth.
(Black’s Law Dictionary, 5th Ed., p. 55)
NOTE: The option to take either an oath or affirmation is
given to the witness and not to the court. (Riano, 2016)
Waiver of the right to have the witness sworn
The right may be waived. If a party admits proof to be
taken in a case without an oath, after the testimony has
been acted upon by the court, and made the basis of a
judgment, such party can no longer object to the
admissibility of the testimony. He will be deemed to have
waived the objection. (People v. Bisda, G.R. No. 140895, July
17, 2003)
Matters to be recorded during trial
The entire proceedings of a trial or hearing, including:
1. Questions propounded to a witness and his answers
thereto; and
2. The statements made by the judge or any of the
parties, counsel, or witnesses with reference to the
case (Sec. 2, Rule 132).
NOTE: These shall be recorded by means of shorthand or
stenotype or by other means of recording found suitable
by the court (Ibid.).
Exclusion and separation of witnesses
GR: The judge may exclude from the court any witness not
at the time under examination, so that he may not hear the
testimony of other witnesses. The judge may also cause
witnesses to be kept separate and to be prevented from
conversing with one another until all shall have been
examined (Sec. 15, Rule 132).
XPNs:
1. An accused in a criminal case as it is his constitutional
right to be present at all stages of the proceedings;
2. Parties to the litigation will generally not be
excluded, their presence usually being necessary to a
proper management of the case;
336
3. Party in interest though not a party to the record and
an agent of such party, if the presence of such agent
is necessary;
4. Officers and complaining witnesses are customarily
excepted from the rule unless the circumstances
warrant otherwise; and
5. Expert witnesses are not excluded until production
of evidence bearing upon the question or subject as
to which they have been called or unless liable to be
influenced by the testimony of the other witnesses
(Herrera, 1999).
Recantation of a witness
Courts must not automatically exclude the original
statement based solely on the recantation. It should
determine which statement should be given credence
through a comparison of the original and the new
statements, applying the general rules of evidence (PLDT
v. Bolso, G.R. No. 159701, August 17, 2007).
JUDICIAL AFFIDAVIT RULE
A.M. No. 12-8-8-SC
SCOPE
Effect of the Judicial Affidavit Rule (JAR) in the
Philippine judicial system
It signals a dramatic shift from a dominantly adversarial
system to a mix adversarial and inquisitorial system.
(Associate Justice Roberto Abad, UST Law Review Chief
Justice Andres Narvasa Honorary Lecture, February 15,
2013)
Notable changes by the JAR
1. Testimonies are now allowed to be taken and kept in
the dialect of the place provided they are
subsequently translated into English or Filipino.
These will be quoted in pleadings in their original
version with the English or Filipino translation in
parenthesis provided by the party, subject to counter
translation by opposing side.
2. In civil actions, the judicial affidavit rule requires the
parties to lay their cards on the table before pre-trial
by submitting the judicial affidavits and documents
of the parties and their witnesses and serving copies
on the adverse party at least 5 days before the pre-
trial. No further stipulations of facts are needed at the
pre-trial since, by comparing the judicial affidavits of
the opposing sides, the court will already see what
matters they agree and on what matters they dispute.
3. The court will already take active part in examining
the witnesses. The judge will no longer be limited to
asking clarificatory questions; he can also ask
questions that will determine the credibility of the
witness, ascertain the truth of his testimony and
elicit the answers that the judge needs for resolving
issues (Associate Justice Roberto Abad, supra).
Applicability of the JAR
It shall be applicable to all actions, proceedings, and
incidents requiring the reception of evidence before:
 Evidence
1. The MeTCs, MTCCs, MTCs, MCTCs, and the Shari'a
Circuit Courts;
NOTE: It shall not apply to small claims cases.
2. The RTCs and the Shari'a District Courts;
3. The Sandiganbayan, the CTA, the CA, and the Shari'a
Appellate Courts;
4. The investigating officers and bodies authorized by
the SC to receive evidence, including the IBP; and
5. The special courts and quasi-judicial bodies, whose
rules of procedure are subject to disapproval of the
SC, insofar as their existing rules of procedure
contravene the provisions of this Rule (Sec. 1, JAR).
NOTE: While in civil cases (with the exception of small
claims) the application of the JAR is mandatory regardless
of the amount of money claimed, in criminal cases, its
application is limited to those offenses punishable by a
maximum of 6 years or less, unless the accused agrees to
its use.
Requirements of the JAR which the parties are bound
to follow
The parties shall file with the court and serve on the
adverse party, personally or by licensed courier service,
not later than 5 days before pre-trial or preliminary
conference or the scheduled hearing with respect to
motions and incidents, the following:
1. The judicial affidavits of their witnesses, which shall
take the place of such witnesses' direct testimonies;
and
2. The parties' documentary or object evidence, if any,
which shall be attached to the judicial affidavits and
marked as Exhibits A, B, C, and so on in the case of the
complainant or the plaintiff, and as Exhibits 1, 2, 3,
and so on in the case of the respondent or the
defendant (Sec. 2, JAR).
Attachment of the original document as documentary
evidence
A party or a witness may keep the original document or
object evidence in his possession after the same has been
identified, marked as exhibit, and authenticated, but he
must warrant in his judicial affidavit that the copy or
reproduction attached to such affidavit is a faithful copy
or reproduction of that original. In addition, the party or
witness shall bring the original document or object
evidence for comparison during the preliminary
conference with the attached copy, reproduction, or
pictures, failing which the latter shall not be admitted
(Ibid.).
CONTENTS AND PROCEDURE
Contents of a Judicial Affidavit
A judicial affidavit shall be prepared in a language known
to the witness and, if not in English or Filipino,
accompanied by a translation in English or Filipino, and
shall contain the following:
337
1. The name, age, residence or business address, and
occupation of the witness;
2. The name and address of the lawyer who conducts or
supervises the examination of the witness and the
place where the examination is being held;
3. A statement that the witness is answering the
questions asked of him, fully conscious that he does
so under oath, and that he may face criminal liability
for false testimony or perjury;
4. Questions asked of the witness and his
corresponding answers, consecutively numbered,
that:
a. Show the circumstances under which the
witness acquired the facts upon which he
testifies;
b. Elicit from him those facts which are relevant to
the issues that the case presents; and
c. Identify the attached documentary and object
evidence and establish their authenticity in
accordance with the Rules of Court;
5. The signature of the witness over his printed name;
and
6. A jurat with the signature of the notary public who
administers the oath or an officer who is authorized
by law to administer the same (Sec. 3, JAR).
Duty of the lawyer who conducted the examination of
a witness
The judicial affidavit shall contain a sworn attestation at
the end, executed by the lawyer who conducted or
supervised the examination of the witness, to the effect
that:
1. He faithfully recorded or caused to be recorded the
questions he asked and the corresponding answers
that the witness gave; and
2. Neither he nor any other person then present or
assisting him coached the witness regarding the
latter's answers (Sec. 4, JAR).
Trial
After submitting to the court and serving the adverse
party a copy of the judicial affidavits of the witnesses of a
party and attaching therein documentary or object
evidence not later than five days before pre-trial or
preliminary conference or the scheduled hearing with
respect to motions and incidents trial shall commence as
follows:
1. The party presenting the judicial affidavit of his
witness in place of direct testimony shall state the
purpose of such testimony at the start of the
presentation of the witness (Sec. 6, JAR);
2. The adverse party may move to disqualify the
witness or to strike out his affidavit or any of the
answers found in it on ground of inadmissibility;
NOTE: The court shall promptly rule on the motion
and, if granted, shall cause the marking of any
excluded answer by placing it in brackets under the
initials of an authorized court personnel, without
 REMEDIAL LAW
prejudice to the tender of excluded evidence under
Sec. 40, Rule 132.
3. The adverse party shall have the right to cross-
examine the witness on his judicial affidavit and on
the exhibits attached to the same (Sec. 7, JAR);
4. The party who presents the witness may examine
him on re-direct (Ibid.);
NOTE: In every case, the court shall take active part
in examining the witness to determine his credibility
as well as the truth of his testimony and to elicit the
answers that it needs for resolving the issues.
5. Upon the termination of the testimony of his last
witness, a party shall immediately make an oral offer
of documentary evidence, piece by piece, in their
chronological order, stating the purpose or purposes
for which he offers the particular exhibit (Sec. 8, JAR);
6. After each piece of exhibit is offered, the adverse
party shall state the legal ground for his objection, if
any, to its admission, and the court shall immediately
make its ruling respecting that exhibit (Ibid.).
NOTE: Since the documentary or object exhibits form part
of the judicial affidavits that describe and authenticate
them, it is sufficient that such exhibits are simply cited by
their markings during the offers, the objections, and the
rulings, dispensing with the description of each exhibit
(Ibid.).
APPLICATION TO CRIMINAL ACTIONS
The judicial affidavit rule shall apply to all criminal
actions:
1. Where the maximum of the imposable penalty does
not exceed six years;
2. Where the accused agrees to the use of judicial
affidavits, irrespective of the penalty involved; or
3. With respect to the civil aspect of the actions,
whatever the penalties involved are (Sec. 9, JAR).
---
Q: Can a party filing a criminal action cognizable by
the Regional Trial Court be mandated to follow the
JAR?
A: NO. The jurisdiction of the RTC in criminal cases
includes offenses where the imposable penalty exceeds 6
years, thus, as a rule the JAR has no application except
when the accused agrees to its use.
Submission by the prosecution of the judicial affidavit
The prosecution shall submit the judicial affidavits of its
witnesses not later than five days before the pre-trial,
serving copies of the same upon the accused. The
complainant or public prosecutor shall attach to the
affidavits such documentary or object evidence as he may
have, marking them as Exhibits A, B, C, and so on. No
further judicial affidavit, documentary, or object evidence
shall be admitted at the trial (Ibid.).
---
338
Q: Is it likewise mandatory on the part of the accused
to submit a judicial affidavit?
A: NO. The accused has the option to submit his judicial
affidavit as well as those of his witnesses to the court
within ten days from receipt of such affidavits and serve a
copy of each on the public and private prosecutor,
including his documentary and object evidence
previously marked as Exhibits 1, 2, 3, and so on. These
affidavits shall serve as direct testimonies of the accused
and his witnesses when they appear before the court to
testify (Ibid.).
---
Q: The JAR took effect last January 1, 2013, but with
some modification as to its applicability to criminal
cases. What are these modifications?
A: The JAR was modified only with respect to actions filed
by public prosecutors, subject to the following conditions:
1. For the purpose of complying with the Judicial
Affidavit Rule, public prosecutors in the first and
second level courts shall use the sworn statements
that the complainant and his or her witnesses submit
during the initiation of the criminal action before the
office of the public prosecutor or directly before the
trial court;
2. Upon presenting the witness, the attending public
prosecutor shall require the witness to affirm what
the sworn statement contains and may only ask the
witness additional direct examination questions that
have not been amply covered by the sworn
statement;
3. This modified compliance does not apply to criminal
cases where the complainant is represented by a duly
empowered private prosecutor. The private
prosecutor shall be charged in the applicable cases
the duty to prepare the required judicial affidavits of
the complainant and his or her witnesses and cause
the service of the copies of the same upon the
accused. (AM No 12-8-8-SC, Judicial Affidavit Rule,
January 8, 2012)
EFFECT OF NON-COMPLIANCE
WITH THE JUDICIAL AFFIDAVIT RULE
1. A party who fails to submit the required judicial
affidavits and exhibits on time shall be deemed to
have waived their submission. The court may,
however, allow only once the late submission of the
same provided, the delay is for a valid reason, would
not unduly prejudice the opposing party, and the
defaulting party pays a fine of not less than
Php1,000.00 nor more than Php5,000.00, at the
discretion of the court;
2. The court shall not consider the affidavit of any
witness who fails to appear at the scheduled hearing
of the case as required. Counsel who fails to appear
without valid cause despite notice shall be deemed to
have waived his client's right to confront by cross-
examination the witnesses there present;
3. The court shall not admit as evidence judicial
affidavits that do not conform to the content
 Evidence
requirements of Sec. 3 and the attestation
requirement of Sec. 4 above. The court may, however,
allow only once the subsequent submission of the
complaint replacement affidavits before the hearing
or trial provided the delay is for a valid reason and
would not unduly prejudice the opposing party and
provided further, that public or private counsel
responsible for their preparation and submission
pays a fine of not less than Php1,000.00 nor more
than Php5,000.00, at the discretion of the court (Sec.
10, JAR).
EFFECT ON OTHER RULES
As to Rules of Court and Rules of Procedure governing
investigating officers and bodies authorized by the
Supreme Court to receive evidence
They are repealed or modified insofar as they are
inconsistent with the provisions of the Judicial Affidavit
Rule (Sec. 11, JAR).
As to Rules of procedure governing quasi-judicial
bodies which are inconsistent with it
They are thereby disapproved (Ibid.).
RIGHTS AND OBLIGATIONS OF A WITNESS
Rights of a witness
1. To be protected from irrelevant, improper, or
insulting questions, and from harsh or insulting
demeanor;
2. Not to be detained longer than the interests of justice
require;
3. Not to be examined except only as to matters
pertinent to the issue;
4. Not to give an answer which will tend to subject him
to a penalty for an offense unless otherwise provided
by law (right against self-incrimination);
NOTE: This refers to immunity statutes wherein the
witness is granted immunity from criminal
prosecution for offenses admitted in his testimony,
e.g. under Sec. 8, R.A. 1379, the law providing for the
forfeiture of unlawfully acquired property; and
under P.D. 749, in prosecutions for bribery and graft
(Regalado, 2008).
5. Not to give an answer, which will tend to degrade his
reputation, unless it be to the very fact at issue or to
a fact from which the fact in issue would be
presumed. But a witness must answer to the fact of
his previous final conviction for an offense (Sec. 3,
Rule 132).
Classifications of Immunity Statutes
Use Immunity Transactional
Immunity
Prohibits the use of the Grants immunity to the
witness' compelled witness from prosecution
testimony and its fruits in for an offense to which his
any manner in connection compelled testimony
339
with the criminal relates. It is immunity
prosecution of the from prosecution by
witness. It is immunity reason or on the basis of
from use of any statement the testimony (Galman v.
given by the witness. Pamaran, G.R. Nos. 71208-
09 & 71212-13, August 30,
1985).
Obligation of a witness in open court
GR: A witness must answer questions, although his
answer may tend to establish a claim against him (Sec. 3,
Rule 132).
XPNs: A witness may validly refuse to answer under the
following:
1. Right against self-incrimination – If his answer will
tend to subject him to punishment for an offense; or
NOTE: The constitutional assurance of the right
against self-incrimination is a prohibition against the
use of physical or moral compulsion to extort
communications from the accused. It is simply a
prohibition against legal process to extract from the
accused’s own lips, against his will, admission of his
guilt (Ong v. Sandiganbayan & Office of the
Ombudsman, G.R. No. 126858, September 16, 2005).
2. Right against self-degradation – If his answer will
have a direct tendency to degrade his character.
XPNs to the XPN: A witness may not invoke the right
against self-degradation if:
1. Such question is directed to the very fact at issue
or to a fact from which the fact at issue would be
presumed; or
2. If it refers to his previous final conviction for an
offense (Regalado, 2008).
NOTE: A witness invited by the Senate who refused to
testify and arrested for contempt, cannot invoke the right
against self-incrimination in a petition for certiorari and
prohibition. The said right may be invoked only when the
incriminating question is being asked, since he has no way
of knowing in advance the nature or effect of the
questions to be asked of him. That this right may possibly
be violated or abused is no ground for denying the Senate
Committees their power of inquiry (In Re: Sabio, G.R. Nos.
174340, 174318 & 174177, October 17, 2006).
Refusal of a witness to take the witness stand
GR: A witness may not refuse to take the witness stand.
XPNs:
1. An accused in a criminal case; or
2. A party who is not an accused in a criminal case is
allowed not to take the witness stand – in
administrative cases/proceedings that partook of
the nature of a criminal proceeding or analogous to a
criminal proceeding. As long as the suit is criminal in
nature, the party thereto can altogether decline to
take the witness stand. It is not the character of the
suit involved but the nature of the proceedings that
 REMEDIAL LAW
controls (Rosete, et. al. v. Lim, et. al., G.R. No. 136051, Purposes of each stage of the examination
June 8, 2006).
1.
Right against self-incrimination not available under
the Witness Protection Program 2.
A: Any witness admitted into the program of the Witness
Protection, Security and Benefit Act cannot refuse to
testify or give evidence or produce books, documents,
records or writings necessary for the prosecution of the 3.
offense or offenses for which he has been admitted into
the Program on the ground of the constitutional right
against self-incrimination but he shall enjoy immunity
from criminal prosecution and cannot be subjected to any
penalty or forfeiture for any transaction, matter or thing
concerning his compelled testimony or books, documents, 4.
records and writings produced (Sec. 14, R.A. 6981).
Persons eligible to the Witness Protection, Security
and Benefit Program
Direct examination – To elicit facts about the client’s
cause of action or defense (Riano, 2016).
Cross examination
a. To bring out facts favorable to counsel’s client
not established by the direct testimony; and
b. To enable counsel to impeach or to impair the
credibility of the witness (Ibid.).
Re-direct examination
a. To afford opportunity to the witness to explain
or supplement his answers given during the
cross-examination; and
b. To rehabilitate a witness whose credibility has
been damages (Ibid.).
Re-cross examination
a. To overcome the proponent’s attempt to
rehabilitate the witness; and
b. To rebut damaging evidence brought out during
redirect examination.

Any person who has witnessed or has knowledge or Order of Examination

information on the commission of a crime and has
testified or is testifying or about to testify before any
judicial or quasi-judicial body, or before any investigating
authority may be admitted provided that:

1. The offense in which his testimony will be used is a

grave felony as defined under the Revised Penal
Code, or its equivalent under special laws;
2. His testimony can be substantially corroborated in
its material points;
3. He or any member of his family within the second
civil degree of consanguinity or affinity is subjected
to threats to life or bodily injury or there is a
likelihood that he will be killed, forced, intimidated,
harassed or corrupted to prevent him from
testifying, or to testify falsely, or evasively, because
or on account of his testimony; and
4. He is not a law enforcement officer, even if he would
be testifying against the other law enforcement
officers. In such a case, only the immediate members
of his family may avail themselves of the protection
provided for under the Act (Sec. 3, R.A. 6981).

State witness may be liable for contempt or criminal

prosecution ---

If he fails or refuses to testify or to continue to testify

without just cause when lawfully obliged to do so. If he
testifies falsely or evasively, he shall be liable to
prosecution for perjury. If a State witness fails or refuses
to testify, or testifies falsely or evasively, or violates any
condition accompanying such immunity without just
cause, as determined in a hearing by the proper court, his
immunity shall be removed and he shall be subject to
contempt or criminal prosecution. Moreover, the
enjoyment of all rights and benefits under R.A. 6981 shall
be deemed terminated. The witness may, however, purge
himself of the contumacious acts by testifying at any Q: Tony states on direct examination that he once
appropriate stage of the proceedings (Sec. 13, R.A. 6981). knew the facts being asked but he cannot recall them
now. When handed a written record of the facts, he
EXAMINATION OF AN testifies that the facts are correctly stated, but that he
INDIVIDUAL WITNESS has never seen the writing before. Is the writing

340
 Evidence
admissible as past recollection recorded? Explain. important facts bearing upon the issue (Sec. 6, Rule
(1996 Bar) 132), but this does not mean that a party by doing so
is making the witness his own in accordance with
A: NO, because for the written record to be admissible as Sec. 5 of Rule 132. We follow the American Rule as to
past recollection recorded, it must have been written or the accused or a hostile witness, who may only be
recorded by Tony or under his direction at the time when cross-examined on matters covered by direct
the fact occurred, or immediately thereafter, or at any examination (Herrera, 1999).
other time when the fact was fresh in his memory and he
knew that the same was correctly written or recorded Doctrine of Incomplete Testimony
(Sec. 16, Rule 132). But in this case Tony has never seen
the writing before. GR: When cross-examination cannot be done or
completed due to causes attributable to the party who
When the witness may refer to memorandum offered the witness, the incomplete testimony is rendered
incompetent and should be stricken from the record
Present Recollection Past Recollection (Bachrach Motor Co., Inc. v. CIR, G.R. No. L-26136, October
Revived Recorded 30, 1978; Ortigas, Jr. v. Lufthansa German Airlines, G.R. No.
A witness may be allowed A witness may also testify L-28773, June 30, 1975).
to refresh his memory from such a writing or
respecting a fact, by record, though he retains XPN: Where the prosecution witness was extensively
anything written or no recollection of the cross-examined on the material points and thereafter
recorded by himself or particular facts, if he is failed to appear and cannot be produced despite a
under his direction at the able to swear that the warrant of his arrest (People v. Gorospe, G.R. No. 51513,
time when the fact writing or record May 15, 1984).
occurred, or immediately correctly stated the
thereafter, or later so long transaction when made; Effect of death or absence of a witness after the direct
as the fact was fresh in his but such evidence must examination by the proponent
memory and he knew that be received with caution.
it was correctly written or (Sec. 16, Rule 132) 1. If the witness was not cross-examined because of
recorded; but in such case causes attributable to the cross-examining party and
the writing or record the witness had always made himself available for
must be produced and cross-examination, the direct testimony of the
may be inspected by the witness shall remain on record and cannot be
adverse party, who may, if stricken off because the cross-examiner is deemed to
he chooses, cross- have waived his right to cross-examine (Dela Paz v.
examine the witness upon IAC, G.R. No. 71537, September 17, 1987).
it, and may read it in 2. If the witness was partially cross-examined but died
evidence. before the completion of his cross-examination, his
Applies if the witness Applies where the testimony on direct may be stricken out but only with
remembers the facts witness does not recall respect to the testimony not covered by the cross-
regarding his entries and the facts involved, and is examination (People v. Señeris, G.R. No. L-48883,
is entitled to greater entitled to lesser weight. August 6, 1980).
weight. (Regalado, 2008) 3. The absence of a witness is not sufficient to warrant
the striking out of his testimony for failure to appear
Right of the adverse party when a writing is shown to for further cross-examination where the witness has
a witness already been sufficiently cross-examined, and the
matter on which cross-examination is sought is not
Whenever a writing is shown to a witness, it may be in controversy (Ibid.).
inspected by the adverse party (Sec. 18, Rule 132).
GR: The party who offered the testimony of a witness is
Scope of a cross-examination bound by such testimony.

1. American rule – restricts cross-examination to facts XPNs:

and circumstances which are connected with the
matters that have been stated in the direct
examination of the witness.
2. English rule – where a witness is called to testify to a
particular fact, he becomes a witness for all purposes
and may be fully cross-examined upon all matters
material to the issue, the examination not being
confined to the matters inquired about in the direct
examination.
NOTE: Under Philippine jurisdiction, we follow the
two rules. In general, we follow the English Rule,
which allows the cross-examination to elicit all
1. In the case of a hostile witness;
2. Where the witness is the adverse party or the
representative of a juridical person which is the
adverse party; and
3. When the witness is not voluntarily offered but is
required by law to be presented by the proponent, as
in the case of subscribing witnesses to a will
(Regalado, 2008, citing Fernandez v. Tantoco, 49 Phil.
380, and Sec. 11, Rule 76).
Recalling the witness

341
 REMEDIAL LAW
GR: After the examination of a witness by both sides has
been concluded, the witness cannot be recalled without
leave of court. The court will grant or withhold leave in its
discretion, as the interests of justice may require (Sec. 9,
Rule 132).
XPNs:
It is one which assumes as true a fact not yet testified to
by the witness, or contrary to that which he has
previously stated. It is not allowed (Sec. 10, Rule 132) in
any type of examination (Riano, 2016).
METHODS OF IMPEACHMENT
OF ADVERSE PARTY’S WITNESS

1. The examination has not been concluded; or Impeachment of a witness

2. If the recall of the witness was expressly reserved by
a party with the approval of the court. In these two It is a technique employed usually as part of cross-
cases the recall of a witness is a matter of right examination to discredit a witness by attacking his
(Regalado, 2008). credibility. (Riano, 2016)

NOTE: Something more than the bare assertion of the Ways of impeaching an adverse party’s witness
need to propound additional questions is essential before
the court's discretion may rightfully be exercised to grant 1. By contradictory evidence;
or deny recall. There must be a satisfactory showing of 2. By evidence that the general reputation for truth,
some concrete, substantial ground for instance, that honesty or integrity of the witness is bad; or
particularly identified material points were not covered 3. By evidence that the witness has made at other times
in the cross-examination, or that particularly described statements inconsistent with his present testimony
vital documents were not presented to the witness whose (Sec. 11, Rule 132).
recall is prayed for, or that the cross-examination was
conducted in so inept a manner as to result in a virtual NOTE: The other modes of impeaching a witness are:
absence thereof. Absent such particulars, to repeat, there
would be no foundation for a trial court to authorize the 1. By involving him during cross-examination in
recall of any witness. (People v. Rivera, G.R. No. 98376, contradiction;
August 16, 1991) 2. By showing the impossibility or improbability of his
testimony;
LEADING AND MISLEADING QUESTIONS 3. By proving action or conduct of the witness
inconsistent with his testimony;
Leading question 4. By showing bias, interest or hostile feeling against
the adverse party (Herrera, 1999).
It is one which suggests to the witness the answer which
the examining party desires. A leading question is not Contradictory evidence Prior inconsistent
allowed (Sec. 10, Rule 132). statements
Refers to other testimony Refer to statements, oral
When is a leading question allowed? of the same witness, or or documentary, made by
other evidence presented the witness sought to be
1. On cross-examination; by him in the same case, impeached on occasions
2. On preliminary matters; but not the testimony of other than the trial in
3. When there is difficulty in getting direct and another witness. which he is testifying.
intelligible answers from a witness who is ignorant, (Regalado, 2008)
or a child of tender years, or is of feeble mind, or a
deaf-mute; Impeachment of a witness by evidence of particular
4. Of an unwilling witness or hostile witness; wrongful acts

NOTE: A witness may be considered as unwilling or
hostile only if so declared by the court upon adequate
showing of his adverse interest, unjustified
reluctance to testify or his having misled the party
into calling him to the witness stand. (Sec. 12, Rule
132)
GR: A witness may not be impeached by evidence of
particular wrongful acts.
XPN: If it may be shown by the examination of the
witness, or the record of the judgment, that he has been
convicted of an offense (Sec. 11, Rule 132).

5. Of a witness who is an adverse party or an officer, Impeachment by a party of his own witness
director, or managing agent of a public or private
corporation or of a partnership or association which GR: The party producing a witness is not allowed to
is an adverse party (Sec. 10, Rule 132); or impeach his credibility.
6. In all stages of examination of a child if the same will
further the interests of justice (Sec. 20, Rule on XPN: The witness is an:
Examination of a Child Witness, A.M. No.004-07-SC).
1. Unwilling or hostile witness so declared by the court;
Misleading question 2. Adverse party; or

342
 Evidence
3. Officer, director, or managing agent of a public or 2. To save time, as an admission by the witness may
private corporation or of a partnership or association make the extrinsic proof necessary; and
which is an adverse party (Sec. 12, Rule 132). 3. To give the witness, in fairness to him, a chance to
explain the discrepancy (Herrera, 1999).
NOTE: In these instances, such witnesses may be
impeached by the party presenting him in all respects as EVIDENCE OF THE GOOD CHARACTER OF A WITNESS
if he had been called by the adverse party, except by
evidence of his bad character (Ibid.). Admissibility of evidence on the good moral character
of a witness
Impeachment of the adverse party as a witness
Evidence of the good character of a witness is not
That the witness is the adverse party does not necessarily admissible until such character has been impeached (Sec.
mean that the calling party will not be bound by the 14, Rule 132).
former’s testimony. The fact remains that it was at his
instance that his adversary was put on the witness stand.
He is not bound only in the sense that he may contradict ADMISSIONS AND CONFESSIONS
him by introducing other evidence to prove a state of facts
contrary to what the witness testifies. Unlike an ordinary
witness, the calling party may impeach an adverse
Admissions vs. Confessions
witness in all respects as if he had been called by the
adverse party, except by evidence of his bad character.
Admission Confession
Under a rule permitting the impeachment of an adverse
witness, although the calling party does not vouch for the A statement of fact which A statement of fact which
witness’ veracity, he is nonetheless bound by his does not involve an involves an
testimony if it is not contradicted or remains unrebutted. acknowledgment of guilt acknowledgment of guilt
(Gaw v. Chua, G.R. No. 160855, April 16, 2008) or liability or liability

HOW THE WITNESS IS IMPEACHED BY EVIDENCE OF May be made by third Can be made only by the
INCONSISTENT STATEMENTS persons and in certain party himself and, in
cases, are admissible some instances, are
Laying the predicate against a party admissible against his co-
accused
It means that it is the duty of a party trying to impugn the Applies to both criminal Applies only to criminal
testimony of a witness by means of prior or subsequent and civil cases cases
inconsistent statements, whether oral or in writing, to
give the witness a chance to reconcile his conflicting May be express or tacit Must be express
declarations, such that it is only when no reasonable
explanation is given by him that he should be deemed (Regalado, 2008)
impeached. (People v. Sambahon, G.R. No. 182789, August
3, 2010) NOTE: An admission, in general sense, includes
confessions, the former being a broader term because,
Laying the predicate in impeaching a witness by accordingly, a confession is also an “admission… by the
evidence of prior inconsistent statements accused of the fact charged against him or of some fact
essential to the charge” (4 Wigmore, Sec. 1050). A
1. The prior inconsistent statements must be related to confession is a specific type of admission which refers
him, with the circumstances of the times and places only to an acknowledgement of guilt. As used, the term
and the persons present; admission refers to an acknowledgement of facts which,
2. The witness must be asked whether he made such although may be incriminating, falls short of an admission
statements, and if so, allowed to explain them; and of guilt (Riano, 2016).
3. If the statements be in writing it must be shown to
the witness before any question is put to him Judicial admission vs. Extrajudicial admission
concerning them (Sec. 13, Rule 132). (1996 Bar)
Judicial Admissions Extrajudicial
Inapplicability of the rule Admissions
Those made in the course Those made out of court
If the prior inconsistent statement appears in a deposition of the proceeding in the or in a judicial proceeding
of the adverse party, and not a mere witness, that adverse same case other than the one under
party who testifies may be impeached without laying the consideration
predicate, as such prior statements are in the nature of Do not require proof and Regarded as evidence and
admissions of said adverse party (Regalado, 2008). may be contradicted only must be offered as such,
by showing that it was otherwise the court will
The reasons for laying the predicate are: made through palpable not consider it in deciding
mistake or that no such the case.
1. To avoid unfair surprise to the adversary; admission was made
(Sec. 4, Rule 129).

343
 REMEDIAL LAW

Judicial admissions need Requires formal offer for 8. Election cases (Herrera, 1999).
not be offered in evidence it to be considered
since it is not evidence. It ---
is superior to evidence
and shall be considered Q: What is the underlying reason for the adoption of
by the court as the rule against the admission of an offer of
established. compromise in civil cases? (1997 Bar)
Conclusive upon the Rebuttable
person admitting A: It is for the reason that parties are encouraged to enter
into compromises. Courts should endeavor to persuade
Admissible even if self- Not admissible if self- the litigants in a civil case to agree upon some fair
serving serving compromise (Art. 2029, NCC). During pre-trial, courts
should direct the parties to consider the possibility of an
Subject to cross- Not subject to cross- amicable settlement. (Sec. 2(a), Rule 18)
examination examination
---

Offer of compromise as admission of liability Q: Berting was accused of having raped Lisa. Rule on
the admissibility of an offer of Berting to marry Lisa.
Civil Case Criminal Case (1998 Bar)
It is NOT an admission GR: It may be received in
of any liability and is evidence as an implied A: Berting’s offer to marry Lisa is admissible in evidence
NOT admissible against admission of guilt (Ibid.). as an implied admission of guilt because rape cases are
the offeror not allowed to be compromised. (Sec. 27, Rule 130)
(Sec. 27, Rule 130). XPNs:
1. In quasi-offenses where ---
there is no criminal
intent (negligence), such Q: Lloydie, while driving his car, ran over Bea. Lloydie
as reckless imprudence; visited Bea at the hospital and offered to pay for her
2. In criminal cases hospitalization expenses. After the filing of the
allowed by law to be criminal case against Lloydie for serious physical
compromised such as: injuries through reckless imprudence, Lloydie’s
a. NIRC (Sec. 7c) – The insurance carrier offered to pay for the injuries and
CIR has the power to damages suffered by Bea. The offer was rejected
compromise minor because Bea considered the amount offered as
criminal violations inadequate.
as may be
determined by the 1. Is the offer by Lloydie to pay the hospitalization
Secretary of expenses of Bea admissible in evidence?
Finance; 2. Is the offer by Lloydie’s insurance carrier to pay
b. LGC (Sec. 408) – for the injuries and damages of Bea admissible in
Allowed in minor evidence? (1997 Bar)
offenses whose
penalties do not A:
exceed one year; 1. NO. It is not admissible in evidence to prove his guilt
c. RPC (Art. 266-C) – In in both the civil and criminal cases (Sec. 27(4), Rule
cases of marital 130).
rape, where 2. It is irrelevant. The obligation of the insurance
subsequent company is based on the contract of insurance and is
forgiveness by the not admissible in evidence against the accused
wife extinguishes because it was not offered by the accused but by the
the criminal action insurance company which is not his agent.
or penalty (Suarez
and De la Banda, Admissibility of plea or offer (2008 Bar)
2006).
Offer or Plea Admissibility
NOTE: No compromise is valid in the following cases: Plea of guilty later Not admissible in
withdrawn by the evidence against the
1. Civil status of persons; accused accused who made the
2. Validity of a marriage or legal separation; plea
3. Any ground for legal separation;
4. Future support; Offer by the accused to Not admissible in
5. Jurisdiction of courts; plead guilty to a lesser evidence against the
6. Future legitime; offense but unaccepted accused who made the
7. Habeas corpus; and by prosecution offer

344
 Evidence
Offer to pay or payment Not admissible in
of medical, hospital or evidence as proof of civil
other expenses or criminal liability for
occasioned by injury the injury (Suarez and De
(Good Samaritan Rule) la Banda, Evidence: A
Lawyer’s Companion,
2006 ed.)
Unaccepted offer
An offer in writing to pay a particular sum of money or to
deliver a written instrument or specific personal property
is, if rejected without valid cause, equivalent to the actual
production and tender of the money, instrument, or
property (Sec. 35, Rule 130).
RES INTER ALIOS ACTA RULE
Res inter alios acta alteri nocere non debet
This principle literally means “things done between
strangers ought not to injure those who are not parties to
them” (Black’s Law Dictionary, 5th Ed.; Dynamic Signmaker
Outdoor Advertising Services, Inc. v. Potongan, G.R. No.
156589, June 27, 2005).
Reason for the rule on res inter alios acta
On principle of good faith and mutual convenience, a
man’s own acts are binding upon himself and are evidence
against him. So are his conduct and declarations. It would
not only be rightly inconvenient but also manifestly
unjust, that a man should be bound by the acts of mere
unauthorized strangers; and if a party ought not to be
bound by the acts of strangers, neither ought their acts or
conduct be used as evidence against him (People v.
Guittap, G.R. No. 144621, May 9, 2003).
Two (2) branches of res inter alios acta rule
1. The rights of a party cannot be prejudiced by an act,
declaration, or omission of another (Sec. 28, Rule
130); (2003 Bar)
2. Evidence that one did or did not do a certain thing at
one time is not admissible to prove that he did or did
not do the same or similar thing at another time (Sec.
34, Rule 130).
Exceptions to the res inter alios acta rule (first
branch)
1. Admission by a co-partner or agent (Sec. 29, Rule
130);
2. Admission by a co-conspirator (Sec. 30, Rule 130);
and
3. Admission by privies (Sec. 31, Rule 130).
NOTE: The rule has reference to extrajudicial
declarations. Hence, statements made in open court by a
witness implicating persons aside from him are
admissible as declarations from one who has personal
knowledge of the facts testified to. (Riano, 2016)
The testimony of the accused against his co-accused in
345
open court is considered as admissible testimony and not
subject of the res inter alios acta rule since such testimony
is subject to cross examination.
---
Q: Mau sue Kenstar Travel Corporation for breach of
contract on the ground that when she went on a
European tour, there was no European tour manager,
the Filipino guide was a first timer, and the hotels
where they were billeted were not first class. Kenstar
contended that the tour was satisfactory because out
of 18 participants, only Mau actually complained. Can
the fact that the other participants in the tour filed no
case against Kenstar be used as evidence to show that
B has no cause of action?
A: NO. Rule 130, Sec. 28 of the Rules of Court provides that
the rights of a party cannot be prejudiced by an act,
declaration or omission of another. The failure of the
other participants to file and action should not prejudice
Mau (Geraldez v. Court of Appeals, G.R. No. 108253,
February 23, 1994).
ADMISSION BY A PARTY
The act, declaration or omission of a party as to a relevant
fact may be given in evidence against him (Sec. 26, Rule
130).
Requisites for the admissibility of an admission
1. The act, declaration or omission must have been
made by a party or by one by whom he is legally
bound;
2. The admission must be as to a relevant fact; and
3. The admission may only be given in evidence against
him (Ibid.; Herrera, 1999).
Self-serving declaration
It is one which has been made extra-judicially by the party
to favor his interest. It is not admissible in evidence
because they are inherently untrustworthy, and would
open the door to fraud and fabrication of testimony
(Lichauco v. Atlantic Gulf and Pacific Co. of Manila, 84 Phil.
330; People v. Demiar, 108 Phil. 651).
NOTE: Self-serving evidence are inadmissible because the
adverse party is not given the opportunity for cross-
examination, and their admission would encourage
fabrication of testimony. (Hernandez v. CA, G.R. No.
104874, December 14, 1993)
Statements in affidavits are not sufficient to prove the
existence of agricultural tenancy. It is self-serving. It will
not suffice to prove consent of the owner. Independent
evidence is necessary. (Rodriguez v. Salvador, G.R. No.
171972, June 8, 2011)
---
Q: After working as a laborer for 43 years, A resigned
from Rufina Patis Factory. Thereafter, he availed of
his pension from the SSS and executed an affidavit
stating that he was never re-employed. However,
 REMEDIAL LAW
when he filed a claim for retirement benefits from his
employer before the NLRC, he alleged that he
continued working for Rufina Patis Factory for 4 more
years. Can Rufina Patis Factory use A’s affidavit
executed before the SSS as an admission against his
interest?
A: YES. The document is the best evidence which affords
greater certainty of the facts in dispute. While the affidavit
may have facilitated the release of the retirement benefits
from SSS, hence, beneficial to him at that time, it may still
be considered as admission against interest since the
disserving quality of the admission is judged as of the time
it is used or offered in evidence and not when such
admission was made. Thus, it matters not that the
admission was self-serving at the time it was made, so
long as it is against A’s present claim (Rufina Patis Factory
v. Alusitain, G.R. No. 146202, July 14, 2004).
Classifications of Admissions
Express It is a positive statement or act.
Implied It is one which may be inferred
from the declarations or acts of a
person.
Judicial When made in the course of a
judicial proceeding.
Extrajudicial When made out of court or even in
a proceeding other than the one
under consideration.
Adoptive It is a party’s reaction to a
statement or action by another
person when it is reasonable to
treat the party’s reaction as an
admission of something stated or
implied by the other person. A
third person’s statement becomes
the admission of the party
embracing or espousing it.
Adoptive admission may occur
when a party:
1. Expressly agrees to or
concurs in an oral statement
made by another;
2. Hears a statement and later
on essentially repeats it;
3. Utters an acceptance or builds
upon the assertion of another;
4. Replies by way of rebuttal to
some specific points raised by
another but ignores further
points which he or she has
heard the other make; or
5. Reads and signs a written
statement made by another
(Republic v. Kendrick
Development Corp., G.R. No.
149576, August 8, 2006)
(Riano, 2016)
ADMISSION BY A THIRD PARTY
346
GR: The act, declaration or omission made out of court of
a party as to a relevant fact may be given in evidence
against him but may not be given in evidence against
another person.
XPN: The act or omission of one party made out of court
may be used as evidence against another when its
admission is made by:
1. A partner;
2. An agent;
3. A joint owner;
4. A joint debtor;
5. A person jointly interested with the party;
6. A conspirator;
7. A privy or successor in interest (Suarez and De la
Banda, 2006).
---
Q: Francisco was charged with violating PD No. 1612
or the Anti Fencing Decree. Among the evidence
submitted against him was the testimony of Jovita in
a previous criminal case wherein the accused therein,
Pacita, was convicted of theft and where she stated
that Francisco bought stolen jewelries from her. Can
the admission in the previous case be used against
Francisco?
A: NO. Francisco was not a party to the previous criminal
case where Pacita was the accused. The acts or
declarations of a person are not admissible against a third
party. Only parties to a case are bound by a judgment of
the trial court (Francisco v. People, G.R. No. 146584, July 12,
2004). Without presenting Jovita to testify on her
admission during the previous criminal case, even if made
in a previous judicial proceeding, it remains an
extrajudicial admission without any effect, insofar as the
present action against Francisco is concerned.
ADMISSION BY A CO-PARTNER OR AGENT
The act or declaration of a partner or agent of the party
within the scope of his authority and during the existence
of the partnership or agency, may be given in evidence
against such party after the partnership or agency is
shown by evidence other than such act or declaration. The
same rule applies to the act or declaration of a joint
owner, joint debtor, or other person jointly interested
with the party (Sec. 29, Rule 130).
Requisites for an admission of a partner to bind his
co-partners or for an agent to bind his principal
1. The act or declaration of a partner or agent of the
party must be within the scope of his authority;
2. The admission was made during the existence of the
partnership or agency; and
3. The existence of the partnership or agency is proven
by independent evidence other than such act or
declaration (Ibid.). The Articles of Incorporation or a
Special Power of Attorney may be presented for such
purpose (Suarez and De la Banda, 2000).
 Evidence
NOTE: The same rule applies to an act or declaration of a
joint owner, joint debtor or other person jointly
interested with the party (Sec. 29, Rule 130).
Dissolved Partnership
GR: Admissions made after a partnership has been
dissolved do not fall within the exception because such
are made when the partnership ceased to exist.
XPN: Where the admissions are made in connection with
the winding up of the partnership affairs, said admissions
are still admissible as the partner is acting as an agent of
his co-partner in said winding up. (Regalado, 2008)
---
Q: The Republic of the Philippines filed a forfeiture
case against the heirs of the late former President
Marcos. In one of her manifestations before the
Sandiganbayan, Imelda Marcos admitted that she
owned 90% of the Swiss bank deposits and only 10%
belongs to the estate of the late President Marcos. The
other heirs also made separate admissions in their
pleadings. What is the value of these admissions?
A: The individual and separate admissions of each
respondent bind all of them pursuant to Sec. 29, Rule 130
of the Rules of Court. The declaration of a party is
admissible against a party whenever a “privity of estate”
exists between the declarant and the party. It generally
denotes a succession of rights. Without doubt, privity
exists among the respondents in this case. Where several
co-parties exist, who are jointly interested in the subject
matter of the controversy, the admission of one is
competent against all (Republic v. Sandiganbayan, G.R. No.
152154, July 15, 2003).
ADMISSION BY A CONSPIRATOR
The act or declaration of a conspirator relating to the
conspiracy and during its existence, may be given in
evidence against the co-conspirator after the conspiracy
is shown by evidence other than such act of declaration
(Sec. 30, Rule 130).
Conspiracy
A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and
decide to commit it (Herrera, 1999).
NOTE: Once conspiracy is proven, the act of one is the act
of all. The statement therefore of one may be admitted
against the other co-conspirators as an exception to the
rule of res inter alios acta (Riano, 2016).
Requisites of an admission by a conspirator
1. The declaration or act be made or done during the
existence of the conspiracy;
2. The declaration or act must relate to the purpose and
object of the conspiracy; and
347
3. The conspiracy must be shown by evidence other
than the declaration or act (evidence aliunde) (Sec.
30, Rule 130).
NOTE: This rule applies only to extrajudicial acts or
admission and not to testimony at trial where the party
adversely affected has the opportunity to cross-examine
the witness (People vs. Baharan, G.R. No. L-188314,
January 10, 2011).
---
Q: A was convicted of robbery with homicide. Among
the evidence used to convict her was the extrajudicial
confession of her co-accused, an alleged co-
conspirator, which confession was made with the
assistance of counsel. Can such admission be used
against A?
A: NO. In order for such admission to be admissible in
evidence, there must be independent evidence aside from
the extrajudicial confession to prove conspiracy. There
being no independent evidence to prove conspiracy, A’s
culpability was not sufficiently established (People v.
Guittap, G.R. No. 144621, May 9, 2003).
Extrajudicial admissions made after the conspiracy
had terminated
GR: Extrajudicial admissions made by a conspirator after
the conspiracy had terminated and even before trial are
not admissible against the co-conspirator.
XPNs:
1. If made in the presence of the co-conspirator who
expressly or impliedly agreed therein;
2. Where the facts in said admission are confirmed in
the individual extrajudicial confessions made by the
co-conspirator after their apprehension;
3. As a circumstance to determine the credibility of the
witness; or
4. As circumstantial evidence to show the probability of
the co-conspirator’s participation in the offense
(Regalado, 2008).
When extrajudicial admission becomes a judicial
admission
While it is true that statements made by a conspirator
against a co-conspirator are admissible only when made
during the existence of the conspiracy, if the declarant
repeats the statement in court, his extrajudicial
confession becomes a judicial admission, making the
testimony admissible as to both conspirators (People v.
Baharan, G.R. No. 188314, January 10, 2011).
ADMISSION BY PRIVIES
Where one derives title to property from another, the act,
declaration, or omission of the latter, while holding the
title, in relation to the property, is evidence against the
former (Sec. 31, Rule 130).
Privies
 REMEDIAL LAW
They refer to persons who are partakers or have an
interest in any action or thing, or any relation to another
(Black’s Law Dictionary, 5th Ed.).
Requisites of an admission by privies
1. One (successor in interest) derives title to property
from another (predecessor in interest) through any
legal means of transfer
2. A statement, act or declaration is made by the
predecessor in interest in relation to the property
and while holding the title thereof
3. Said statement, act or declaration is evidence against
his successor in interest (Sec. 31, Rule 130; Suarez
and De la Banda, 2006).
---
Q: Del Monte Development Corporation filed a case to
be adjudged owner of a piece of land against Ababa
claiming that it acquired a lot from Lucero in 1964. As
a defense, Ababa presented a document executed by
Lucero in 1968 to settle the controversy. Can the
document bind Del Monte as successor in interest of
Lucero?
A: NO. The admission of a former owner of a property
must have been made while he was the owner thereof in
order that such admission may be binding upon the
present owner. Hence, Lucero’s act of executing the 1968
document have no binding effect on Del Monte, the
ownership of the land having passed to it in 1964 (Gevero
v. IAC, G.R. No. 77029, August 30, 1990).
ADMISSION BY SILENCE
There is admission by silence when a party does or says
nothing when he hears or observes an act or declaration
made in his presence when such act or declaration is such
as naturally to call for action or comment if not true, and
when proper and possible for him to do so. Such may be
given in evidence against him (Sec. 32, Rule 130).
Requisites of an admission by silence
1. He must have heard or observed the act or
declaration of the other person;
2. He must have had the opportunity to deny it (People
v. Ranario, 49 Phil. 220);
3. He must have understood the statement;
4. He must have an interest to object, such that he
would naturally have done so, if the statement was
not true;
5. The facts were within his knowledge; and
6. The fact admitted or the inference to be drawn from
his silence is material to the issue (People v. Paragsa,
G.R. No. L-44060, July 20, 1978; Sec. 32, Rule 130;
Regalado, 2008).
NOTE: The rule on admission by silence does not apply
when a person is under an official investigation. The
silence of a person under a custodial investigation for the
commission of an offense should not be construed as an
admission by silence because a person has the right to
remain silent and to be informed of that right (Sec. 12, Art.
348
III, 1987 Constitution; Riano, 2009). However, if it is not
the police investigators who confronted the accused but
the owner of a carnapped vehicle, the silence of one after
being implicated by the other accused serves as an
admission by silence as he did not refute the statements
of his co-accused despite having heard of them (People v.
Garcia, Jr., G.R. No. 138470, April 1, 2003).
Principle of adoptive admission
It is a party’s reaction to a statement or action by another
person when it is reasonable to treat the party’s reaction
as an admission of something stated or implied by the
other person. The basis for admissibility of admissions
made vicariously is that arising from the ratification or
adoption by the party of the statements which the other
person had made (Estrada v. Desierto, G.R. Nos. 146710-15,
April 3, 2001).
NOTE: One good example of adoptive admission is the
alleged admissions made by President Estrada when his
options had dwindled when, according to the Angara
Diary, the Armed Forces withdrew its support from him
as President and Commander-in-Chief. Thus, Angara had
to allegedly ask Senate President Pimentel to advise
Estrada to consider the option of “dignified exit or
resignation.” Estrada did not object to the suggested
option but simply said he could never leave the country.
According to the court, his silence on this and other
related suggestions can be taken as adoptive admissions
by him (Ibid.).
CONFESSIONS
The declaration of an accused acknowledging his guilt of
the offense charged, or of any offense necessarily included
therein, may be given in evidence against him (Sec. 33,
Rule 130).
Requisites for the admissibility of a confession
1. It must involve an express and categorical
acknowledgement of guilt (U.S. v. Corrales, 28 Phil.
362);
2. Facts admitted must be constitutive of a criminal
offense (U.S. v. Flores, 26 Phil. 262);
3. It must have been given voluntarily (People v.
Nishishima, 57 Phil. 26);
4. It must have been intelligently made (Bilaan v. Cusi,
G.R. No. L-18179, June 29, 1962), the accused realizing
the importance or legal significance of his act (U.S. v.
Agatea, 40 Phil. 596); and
5. There must have been no violation of Sec. 12, Art. III,
1987 Constitution (Regalado, 2008).
NOTE: A confession to a person, who is not a police
officer, is admissible in evidence. The declaration
acknowledging his guilt of the offense charged, or of
any offense necessarily included therein, may be
given in evidence against the declarant. Such
admissions are not covered by Secs. 12 (1) and (3),
Article III, 1987 Constitution, because they were not
extracted while he was under custodial investigation
(People v. Davao, et al., G.R. No. 174660, May 30, 2011).
 Evidence
6. It must be in writing and signed by such person in the
presence of his counsel or in the latter’s absence,
upon a valid waiver and in the presence of any of the
parents, elder brothers and sisters, his spouse, the
municipal mayor, the municipal judge, district school
supervisor or priest or minister of the gospel as
chosen by him (Sec. 2(d), R.A. 7438).
Classification of Confessions
Judicial One made by the accused before an
confession open court in which the case is
pending and in the course of legal
proceedings therein and, by itself, can
sustain conviction and is admissible
against one’s co-accused. It is
governed by Secs. 1, 3 & 4 of Rule 116.
Extrajudicial One made in any other place or
confession occasion other than the court where
the case is pending and cannot sustain
a conviction unless corroborated by
evidence of corpus delicti. It is
generally binding only upon the
confessant and is not admissible
against his co-accused. It is governed
by Sec. 33 of Rule 130 (Regalado,
2008).
NOTE: If the accused admits having
committed the act in question but
alleges a justification therefor, such as
absence of criminal intent, the same is
merely an admission (Ibid.).
Admissibility of extrajudicial confessions
GR: An extrajudicial confession is not admissible against
the confessor’s co-accused. Said confession is hearsay
evidence and violative of the res inter alios acta rule.
XPN: It may be admitted in evidence against his co-
accused in the following cases:
1. In case of implied acquiescence of the co-accused to
the extrajudicial confession;
2. In case of interlocking confessions;
3. Where the accused admitted the facts stated by the
confessant after being apprised of such confession;
4. If they are charged as co-conspirators of the crime
which was confessed by one of the accused and said
confession is used only as corroborating evidence;
5. Where the confession is used as circumstantial
evidence to show the probability of participation by
the co-conspirator;
6. When the confessant testified for his co-defendant;
and
7. Where the co-conspirator’s extrajudicial confession
is corroborated by other evidence on record.
(Regalado, 2008)
---
Q: The mutilated cadaver of a woman was discovered
near a creek. Due to witnesses attesting that he was
the last person seen with the woman when she was
349
still alive, Carlito was arrested within 5 hours after
the discovery of the cadaver and brought to the police
station. The crime laboratory determined that the
woman had been raped. While in police custody,
Carlito broke down in the presence of an assisting
counsel and orally confessed to the investigator that
he had raped and killed the woman, detailing the acts
he had performed up to his dumping of the body near
the creek. He was genuinely remorseful. During the
trial, the State presented the investigator to testify the
oral confession of Carlito. Is the oral confession
admissible as evidence of guilt? (2008 Bar)
A: NO. The oral confession is not admissible as evidence
of guilt. The confession is in the nature of an extrajudicial
confession before an investigator while under custodial
investigation. Hence, the statutory provisions under R.A.
7438 (Sec. 2(d)) will have to be complied with.
Under said law, any extrajudicial confession made by a
person arrested, detained, or under custodial
investigation shall be in writing and signed by such
person in the presence of his counsel. An oral confession
does not comply with the mandatory provisions of the
law. Under R.A. 7438, the confession is inadmissible in
evidence in any proceeding (Sec. 2(d), R.A. 7438; Riano,
2016).
Requirements for an admission of guilt of an accused
during a custodial investigation to be admitted in
evidence
1. The admission must be voluntary (Sec. 12(1), 1987
Constitution);
2. The admission must be in writing (R.A. 7438);
3. The admission must be made with the assistance of
competent, independent counsel (Sec. 12, 1987
Constitution);
4. The admission must be express (People vs. Prinsipe,
G.R. No. 135862, May 2, 2002);
5. In case the accused waives his rights to silence and to
counsel, such waiver must be in writing, executed
with the assistance of competent, independent
counsel (R.A. 7438).
Doctrine of Interlocking Confessions
It states that extrajudicial confessions independently
made without collusion which are identical with each
other in their essential details and corroborated by other
evidence against the persons implicated, are admissible to
show the probability of the latter’s actual participation in
the commission of the crime (People v. Mulit, G.R. No.
181043, October 8, 2008).
---
Q: 4 of the 6 suspects in the crime of kidnapping with
double murder executed separate extrajudicial
statements confessing to the crime and implicating
the others. The statements were independently
executed but are identical with each other in their
material details. There are also distinct similarities in
the narration of events leading to the killings. Is the
 REMEDIAL LAW
extrajudicial confession admissible against the of the 2 victims and pointed their guns at them. In the
others? second case, however, it appears that the 2 victims
were not physically threatened or tied. Can evidence
A: YES. The rule that an extrajudicial statement is in the first case be used in the second to prove that
evidence only against the person making it, also accused had the intent to deprive the victims of
recognizes various exceptions. One such exception is the liberty?
rule on interlocking confessions where several
extrajudicial statements had been made by several A: YES. The evidence shows the intent of the accused. That
persons charged with an offense and there could have the victim’s hands were not tied nor guns poked at their
been no collusion with reference to said several sides when they were taken by the accused in the second
confessions but the fact that the statements are in all case do not conclusively preclude the deprivation of
material respects identical, is (1) confirmatory of the liberty. The circumstances surrounding the taking of the
confession of the co-defendants and is admissible against victims in the first case, particularly the previous conduct
other persons implicated therein. (2) They are also of accused in kidnapping them, plainly demonstrates their
admissible as circumstantial evidence against the person intent to likewise deprive the victims in the other case, of
implicated therein to show the probability of the latter’s their liberty (People v. Dadles, G.R. No. 118620-21,
actual participation in the commission of the crime and September 1, 1997).
(3) may likewise serve as corroborative evidence if it is
clear from other facts and circumstances that other
persons had participated in the perpetration of the crime HEARSAY RULE
charged and proved (People v. Lising, G.R. No. 106210-11,
January 30, 1998).
It states that a witness can testify only to those facts which
SIMILAR ACTS AS EVIDENCE
he knows of based on his personal knowledge or those
(2nd Branch of the Res Inter Alios Acta Rule)
which are derived from his own perception (Sec. 36, Rule
(Sec. 34, Rule 130)
130). (2003, 2007 Bar)
GR: Evidence that one did or did not do a certain thing at
It also includes all assertions where, though derived from
one time is not admissible to prove that he did or did not
personal knowledge, the adverse party is not given an
do the same or similar thing at another time (Sec. 34, Rule
opportunity to cross-examine (Herrera, 1999).
130). This is also referred to as the “Propensity Rule.”
(2002 Bar)
Hearsay evidence is an evidence that is derived from the
testimony of a witness who has no personal knowledge of
XPNs: Evidence of similar or previous acts may be
the events being inquired into. (1999 Bar)
received to prove the following:
---
1. Specific intent;
2. Knowledge;
Q: Umali filed a complaint against Justice Hernandez
3. Identity;
for grave misconduct and gross ignorance of the law.
4. Plan;
He alleged, among others, that it was "relayed" to him
5. System;
that he needed to pay P15 million if he wanted to be
6. Scheme;
acquitted; and that it was a one-time, "take it or leave
7. Habit;
it" offer. Will the action prosper?
8. Custom;
9. Usage; and
A: NO. In administrative proceedings, complainants have
10. The like (Ibid.).
the burden of proving the allegations in their complaints
by substantial evidence. Umali failed to support by
Purpose of the rule
substantial proof any of the allegations in his complaint.
He was only relying in hearsay evidence to support his
Evidence of similar acts or occurrences compels the
complaint. He did not provide any further details on the
defendant to meet allegations that are not mentioned in
so-called extortion attempt in the complaint, such as the
the complaint, confuses him in his defense, raises a variety
time and place of the incident; the identities of the
of relevant issues, and diverts the attention of the court
persons from his camp who were approached by Ricarte;
from the issues immediately before it. Hence, the
and the person who relayed to him the P15 million
evidentiary rule guards the practical inconvenience of
demand. (Umali v. Hernandez, IPI No. 15-35-SB-J, February
trying collateral issues and protracting the trial, and
23, 2016)
prevents surprise or other mischief prejudicial to
litigants. (Cruz v. CA, G.R. No. 126713, July 27, 1998)
Elements of hearsay evidence
---
1. There must be an out-of-court statement; and
2. The statement made out of court, is repeated and
Q: Accused was charged with 2 counts of kidnapping.
offered by the witness in court to prove the truth of
Since the 2 incidents happened almost
the matters asserted by the statement. (Riano, 2016)
simultaneously, the cases were consolidated and joint
trial ensued. In the first case, accused tied the hands

350
 Evidence
NOTE: Newspaper clippings are hearsay and of no
evidentiary value at all whether objected to or not, unless
offered for a purpose other than proving the truth of the
matter asserted (Feria v. CA, G.R. No. 122954, February 15,
2000).
Medical certificates cannot be admitted in the absence of
the testimony of the physician who examined the
complaint for alleged torture wounds.
Affidavits are inadmissible unless the affiants themselves
are placed in the witness stand to testify therefrom.
Statements made through an interpreter
GR: Statements made through an interpreter are
considered hearsay if a witness is offered to testify to the
statements of another person, spoken in a language not
understood by him, but translated for him by an
interpreter, such witness is not qualified, because he does
not speak from personal knowledge. All that he can know
as to the testimony is from the interpretation thereof
which is in fact given by another person.
XPNs: In cases where the interpreter had been selected:
1. By common consent of the parties endeavoring to
converse;
2. By a party against whom the statements of the
interpreter where offered in evidence (Principal-
Agent Rule).
---
Q: Counsel Oliva objected to a question posed by
opposing Counsel Diesta on the grounds that it was
hearsay and it assumed a fact not yet established. The
judge banged his gavel and ruled by saying “Objection
Sustained”. Can Counsel Diesta ask for a
reconsideration of the ruling? (2012 Bar)
A: YES, Counsel Diesta may ask the Judge to specify the
ground/s relied upon for sustaining the objection and
thereafter move its reconsideration thereof (Sec. 38, Rule
132).
REASON FOR EXCLUSION
OF HEARSAY EVIDENCE
There is no opportunity to cross-examine the outside
declarant.
In criminal cases, its admission would be a violation of the
constitutional provision that the accused shall enjoy the
right of being confronted with the witnesses testifying
against him and to cross-examine them. Moreover, the
court is without opportunity to test the credibility of
hearsay statements by observing the demeanor of the
person who made them (People v. Pruna, G.R. No. 138471,
October 10, 2002).
Double hearsay
It is a testimony of a person with respect to what was told
him by one who was not an eyewitness to the crime but
who obtained knowledge thereof only from the alleged
351
victim. (People v. Manhuyod, Jr., G.R. No. 124676, May 20,
1998)
---
Q: Romeo is sued for damages for injuries suffered by
the plaintiff in a vehicular accident. Julieta, a witness
in court, testifies that Romeo told her that he heard
Antonio, a witness to the accident, gives an excited
account of the accident immediately after its
occurrence. Is Julieta’s testimony admissible against
Romeo over proper and timely objection? Why?
(2002 Bar)
A: NO, because while the excited account of Antonio, a
witness to the accident, was told to Romeo, it was only
Romeo who told Julieta about it, which makes it hearsay.
Classification of out-of-court statements
1. Hearsay – Its probative force depends, in whole or in
part, on the competency and credibility of some
persons other than the witness by whom it is sought
to produce it. It is inadmissible as evidence when the
purpose for introducing the out-of-court statement is
to prove the truth of the facts asserted therein
(Estrada v. Desierto, supra).
2. Non-hearsay – This occurs when the purpose for
introducing the statement is not to prove the truth of
the facts asserted therein but only the making of the
statements and are admissible in evidence when the
making of the statement is relevant. These are the so-
called independently relevant statements (Herrera,
1999).
3. Exceptions to the hearsay rule – Those which are
hearsay but are considered as exceptions to the
hearsay rule and are therefore admissible (Secs. 37-
47, Rule 130).
Independently relevant statements
These are statements which are relevant independently of
whether they are true or not. They are neither hearsay
nor an exception to the hearsay rule as the purpose
thereof is not to prove the truth of the declaration or
document (Estrada v. Desierto, supra). It merely proves
the fact that a statement was made and not the truth of the
fact asserted in the statement. (1999, 2005, 2009, 2010
Bar)
Classification of independently relevant statements
1. Those statements which are the very facts in issue;
2. Those statements which are circumstantial evidence
of the fact in issue. It includes the following:
a. Statements of a person showing his state of
mind, that is, his mental condition, knowledge,
belief, intention, ill-will and other emotions;
b. Statements of a person which show his physical
condition, as illness and the like;
c. Statements of a person from which an inference
may be made as to the state of mind of another,
i.e., the knowledge, belief, motive, good or bad
faith, etc. of the latter;
 REMEDIAL LAW
d. Statements which may identify the date, place
and person in question; and
e. Statements showing the lack of credibility of a
witness (Ibid.).
---
Q: Annie overheard Billy call Rocky a thief. In an
action for defamation filed by Rocky against Billy, is
the testimony of Annie offered to prove the fact of
utterance i.e., that Billy called Rocky a thief,
admissible in evidence? Explain. (1999 Bar)
A: YES. The testimony of Annie is admissible in evidence
as an independently relevant statement. It is offered in
evidence only to prove the tenor thereof, not to prove the
truth of the facts asserted therein. Independently relevant
statements include statements which are on the very facts
in issue or those which are circumstantial evidence
thereof. The hearsay rule does not apply (People v. Gaddi,
G.R. No. 74065, February 27, 1989).
Non-human evidence
It is the testimony of a witness as to statements made by
a non-human declarant (e.g. machines and computers). It
does not violate the rule on hearsay, hence not covered by
the Rule. Machines and animals, unlike humans, lack
conscious motivation to tell falsehoods. The workings of
the machines can be explained by human witnesses who
may then be cross-examined (Herrera, 1999).
EXCEPTIONS TO THE HEARSAY RULE
Exceptions to the hearsay rule (1999 Bar)
1. Dying declaration (Sec. 37);
2. Declaration against interest (Sec. 38);
3. Act or declaration about pedigree (Sec. 39);
4. Entries in the course of business (Sec. 43);
5. Testimony or deposition at a former proceeding (Sec.
47);
6. Family reputation or tradition regarding pedigree
(Sec. 40);
7. Common reputation (Sec. 41);
8. Parts of res gestae (Sec. 42);
9. Entries in official records (Sec. 44);
10. Commercial lists and the like (Sec. 45);
11. Learned treatises (Sec. 46);
NOTE: Items 1 to 5 require death or unavailability of
declarant.
The exceptions are hearsay but they are deemed
admissible by reason of necessity and trustworthiness
(Riano, 2016).
Reason for admissibility
They are admissible by reason of relevancy, necessity and
trustworthiness (Estrada vs. Desierto, supra).
DYING DECLARATION
The declaration of a dying person, made under the
352
consciousness of an impending death, may be received in
any case wherein his death is the subject of inquiry, as
evidence of the cause and surrounding circumstances of
such death. (Sec. 37, Rule 130) (1991, 1992, 1993, 1996,
1998, 1999, 2007, 2010 Bar)
These are ante mortem statements made by a person after
the mortal wound has been inflicted under the belief that
the death is certain, stating the fact concerning the cause
of and the circumstances surrounding the attack (Herrera,
1999).
NOTE: Where the elements of both a dying declaration
and a statement as part of the res gestae are present, the
statement may be admitted as a dying declaration and at
the same time as part of res gestae (People vs. Gado, G.R.
No. 129556, November, 11, 1998).
Requisites for the admissibility of a dying declaration
1. The declaration is one made by a dying person;
2. The declaration was made by said dying person
under a consciousness of his impending death;
3. The declaration refers to the cause and
circumstances surrounding the death of the
declarant and not of anyone else;
4. The declaration is offered in a case wherein the
declarant’s death is the subject of the inquiry
(Geraldo v. People, G.R. No. 173608, November 20,
2008);
5. The declarant is competent as a witness had he
survived (Ibid.);
6. That the statement is complete in itself – “Doctrine of
Completeness” (People v. De Joya, G.R. No. 75028,
November 8, 1991); and
7. The declarant should have died (if he survives, his
declaration may be admissible as part of the res
gestae) (Riano, 2016).
Time interval
GR: The intervening time from the making of a dying
declaration up to the time of death is immaterial in its
admissibility, as long as it was made under the
consciousness of impending death.
XPN: If there is retraction made by the declarant before
he died or his declaration is ambiguous. However, the
interval of time between the declaration and the death of
the declarant may be taken into account where the
declaration is ambiguous as to whether the declarant
believed that his death was imminent when he made such
declaration. (Regalado, 2008)
Factors in determining whether the declarant is
conscious of his impending death
1. The words or statements of the declarant on the
same occasion;
2. His conduct at the time the declaration was made;
and
3. The serious nature of his wounds as would
necessarily engender a belief on his part that he
would not survive therefrom (Regalado, 2008).
 Evidence
NOTE: The dying declaration of the deceased is not
admissible as an ante-mortem declaration when the
deceased was in doubt as to whether he would die or not.
It may, however, be admitted as part of res gestae when it
is made immediate after a startling occurrence. (People of
the Philippines v. Laquinon, G.R. No. L-45470, February 28,
1985)
---
Q: Sam was charged with robbery and homicide.
Kitchie, the victim, suffered several stab wounds. It
appears that 11 hours after the crime, while Kitchie
was being brought to the hospital in a jeep, with his
brother and a policeman as companions, Kitchie was
asked certain questions which she answered,
pointing to Sam as her assailant. Her answers were
put down in writing, but since she was in a critical
condition, her brother and the policeman signed the
statement. Is the statement admissible as a dying
declaration? Explain. (1999 Bar)
A: YES. The statement is admissible as a dying declaration
if the victim subsequently died and her answers were
made under the consciousness of an impending death.
The fact that she did not sign the statement pointing to the
accused as her assailant because she was in a critical
condition does not affect its admissibility as a dying
declaration (People v. Viovicente, G.R. No. 118707,
February 2, 1998).
NOTE: A dying declaration may be oral or written. If oral,
the witness who heard it may testify thereto without the
necessity of reproducing the word of the decedent, if he is
able to give the substance thereof. An unsigned dying
declaration may be used as a memorandum by the
witness who took it down (People v. Boller, G.R. Nos.
144222-24, April 3, 2002).
Assailing a dying declaration
The declaration may be attacked in the same manner as
one would do a testimony in open court. The declarant
himself may be impeached through the normal methods
provided for under the rules.
DECLARATION AGAINST INTEREST
The declaration made by a person deceased, or unable to
testify, against the interest of the declarant, if the fact is
asserted in the declaration was at the time it was made so
far contrary to declarant's own interest, that a reasonable
man in his position would not have made the declaration
unless he believed it to be true, may be received in
evidence against himself or his successors in interest and
against third persons (Sec. 38, Rule 130). (2007 Bar)
These are ante litem motam statements made by a person
who is neither a party nor in privity with a party to the
suit. Such are considered secondary evidence and
admissible only when the declarant is already dead or
unavailable to testify as a witness and may be admitted
against himself or successors-in-interest and against third
persons.
353
Reason for the admissibility of declaration against
interest
Necessity, as such declaration, act, or omission is
frequently the only mode of proof available and
trustworthiness, because of the first presumption that
men will neither falsify nor commit mistakes when such
falsehood or mistake would be prejudicial to their own
pecuniary interest, and because of the fact that any
fraudulent motive for making the statement may be
shown.
Requisites of declaration against interest:
1. The declarant is dead or unable to testify;
NOTE: The inability to testify must be serious.
2. Declaration relates to a fact against the interest of the
declarant;
3. At the time he made said declaration, he was aware
that the same was contrary to his interest; and
4. Declarant had no motive to falsify and believed such
declaration to be true.
Q: Alejandro Cuenca was charged with the crime of
kidnapping Hector Ocampo. One of the testimonies
presented by the prosecution was that of Maribelle
Magdayao, who testified that Hector confided to her
that he and Alejandro’s wife Rubi were having an
affair. Undoubtedly, his wife’s infidelity was ample
reason for Alejandro to contemplate revenge.
Consequently, the trial court convicted Alejandro
based on the testimonies of the witnesses. Was the
testimony of Maribelle admissible as evidence?
A: YES. Hector’s revelation to Maribelle regarding his
illicit relationship with Alejandro’s wife is admissible in
evidence, pursuant to Section 38, Rule 130 of the Revised
Rules on Evidence. With the deletion of the phrase
“pecuniary or moral interest” from the present provision,
it is safe to assume that “declaration against interest” has
been expanded to include all kinds of interest, that is,
pecuniary, proprietary, moral or even penal. Hector
having been missing since his abduction, cannot be called
upon to testify. His confession to Maribelle, definitely a
declaration against his own interest, since his affair with
Rubi was a crime, is admissible in evidence because no
sane person will be presumed to tell a falsehood to his
own detriment (People v. Bernal, G.R. No. 113685, June 19,
1997).
Declaration against interest vs. Admission against
interest
Declaration against Admission against
Interest Interest
Made by a person who is Made by a party to a
neither a party nor in litigation or by one in
privity with a party to the privity with or identified
suit is a secondary in legal interest with such
evidence. party.
Secondary evidence is Primary evidence is
admissible only when the admissible whether the
declarant is already dead
 REMEDIAL LAW

or unavailable to testify declarant is available as a FAMILY REPUTATION OR TRADITION

as a witness. witness. REGARDING PEDIGREE
Exception to the hearsay Covered by the hearsay
rule rule The reputation or tradition existing in a family previous
to the controversy, in respect to the pedigree of any one
Must have been made May be made at any time,
of its members, may be received in evidence if the witness
ante litem motam, i.e. before or during the trial.
testifying thereon be also a member of the family, either
before the controversy
by consanguinity or affinity. Entries in family bibles or
May be admitted against Used only against the
other family books or charts, engravings on rings, family
himself or successors-in- party admitting
portraits and the like, may be received as evidence of
interest and against third
pedigree (Sec. 40, Rule 130). (2000 Bar)
persons
The declarant is the witness himself and a member of the
ACT OR DECLARATION ABOUT PEDIGREE
family. The witness is the one to whom the fact relates, it
is not necessary for him to establish by independent
The act or declaration of a person deceased, or unable to
evidence his relationship to the family.
testify, in respect to the pedigree of another person
related to him by birth or marriage, may be received in
Reason for admissibility
evidence where it occurred before the controversy, and
the relationship between the two persons is shown by
These are admissible by reason of necessity since
evidence other than such act or declaration (Sec. 39, Rule
tradition is often the sole method by which proof of
130).
matters of pedigree can be obtained.
Pedigree
Requisites for the admissibility of family reputation
or tradition regarding pedigree
It includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where the facts
1. There is controversy in respect to the pedigree of any
occurred and the names of the relatives. It also embraces
member of the family;
facts of family history intimately connected with pedigree
2. The reputation or tradition of the pedigree of the
(Ibid.).
person concerned existed previous to the
controversy;
NOTE: The relationship between the declarant and the
3. The statement is about the reputation or tradition of
person subject of the inquiry must be legitimate unless
the family in respect to the pedigree of any member
the issue is the legitimacy itself.
of the family; and
4. The witness testifying to the reputation or tradition
There is no provision as to the extent of degree of
regarding pedigree of the person concerned must be
relationship.
a member of the family of said person either by
consanguinity or affinity (Sec. 40, Rule 130).
Rationale for admissibility
How to establish family reputation or tradition with
Necessity and trustworthiness. Necessity since the facts
respect to one’s pedigree
about pedigree are usually those which occurred many
years before the trial and known only to a few persons.
1. Through testimony in open court of a witness who
Trustworthiness since these are matters which members
must be a member of the family either by
of a family are presumed to be interested in ascertaining
consanguinity or affinity;
the truth.
2. Through entries in:
Requisites for the admissibility of acts or declarations
a. Family bible;
about pedigree
b. Family books or charts;
c. Engravings on rings; or
1. The declarant is dead or unable to testify;
d. Family portraits and the like.
2. The pedigree should be in issue;
3. The declarant must be a relative of the person whose
Sec. 39 (act or declaration about pedigree) v. Sec. 40
pedigree is in question, either by birth or marriage;
(family reputation regarding pedigree)
4. The declaration must be made ante litem motam or
before the controversy occurred; and
Section 39 Section 40
5. The relationship between the declarant and the
Act or declaration Family reputation or
person whose pedigree is in question must be shown
about pedigree tradition regarding
by evidence other than such act or declaration
pedigree
(Tecson v. COMELEC, G.R. No. 161434, March 3, 2004).
Act or declaration about Family reputation or
NOTE: Such declarations are natural expressions of pedigree tradition regarding
persons who must know the truth. Although hearsay, it is pedigree
best that the nature of the case admits and because Witness need not be a Witness is a member of
greater evil might arise from the rejection of such proof member of the family the family
than from its admission.

354

Relation of the declarant
and the person subject of
the inquiry must be
established by
independent evidence
Testimony is about what
the declarant has said
concerning the pedigree
of the family
COMMON REPUTATION
Evidence
The witness is the one to
whom the fact relates, it is
not necessary for him to
establish by independent
evidence his relationship
to the family (Francisco,
1992).
Testimony is about family
reputation or tradition
covering matters of
pedigree
1. Matters of public and general interest more than 30
years old;
2. Matters respecting marriage or moral character and
related facts; and
3. Individual moral character.
NOTE: Marriage, if not proven through an act or
declaration about pedigree may be proven through
common reputation (Trinidad v. CA, G.R. 118904, April 20,
1998).
Difference between matters of public interest and
matters of general interest

Common reputation existing previous to the controversy,
respecting facts of public or general interest more than
thirty years old, or respecting marriage or moral
character, may be given in evidence. Monuments and
inscriptions in public places may be received as evidence
of common reputation (Sec. 41, Rule 130).
It is the definite opinion of the community in which the
fact to be proved is known or exists. It means the general
or substantially undivided reputation, as distinguished
from a partial or qualified one, although it need not be
unanimous (Regalado, 2008).
NOTE: As a general rule, the reputation of a person should
be that existing in the place of his residence; it may also
be that existing in the place where he is best known (Ibid.).
Character is what a man is, and reputation is what he is
supposed to be in what people say he is (Lim v. CA, G.R. No.
91114, September 25, 1992).
Reasons for admissibility
1. Necessity arising from the inherent difficulty of
obtaining any other evidence than that in the nature
of common reputation; and
2. Trustworthiness of the evidence arising from:
a. The supposition that the public is conversant
with the subject to be proved because of their
general interest therein; and
b. The fact that the falsity or error of such evidence
could be exposed or corrected by other
testimony since the public are interested in the
same (Francisco, 1992).
Requisites for admissibility of common reputation
1. The facts must be of public or general interest or
respecting marriage or moral character;
2. The common reputation must have been ancient, i.e.
30 years old;
3. The reputation must have been one formed among a
class of persons who were in a position to have some
sources of information and to contribute intelligently
to the formation of the opinion; and
4. The common reputation must have been existing
previous to the controversy.
Matters of public interest involve those which are
common to all citizen of the state or to the entire people
while matters of general interest involve those which are
common only to a single community or to a considerable
number of persons forming part of the community.
PART OF THE RES GESTAE
Res Gestae
Statements made by a person while a startling occurrence
is taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof, may be
given in evidence as part of res gestae. So, also, statements
accompanying an equivocal act material to the issue, and
giving it a legal significance, may be received as part of the
res gestae. (Sec. 42, Rule 130) (2005, 2007 Bar)
It is a Latin phrase which literally means “things done.” As
an exception to the hearsay rule, it refers to those
exclamations and statements by either the participants,
victims, or spectators to a crime immediately before,
during or immediately after the commission of the crime,
when the circumstances are such that the statements
were made as spontaneous reactions or utterances
inspired by the excitement of the occasion, and there was
no opportunity for the declarant to deliberate and
fabricate a false statement. (Capila v. People, G.R. No.
146161, July 17, 2006)
Reason for admissibility
The reason for the rule is human experience. It has been
shown that under certain external circumstances of
physical or mental shock, the state of nervous excitement
which occurs in a spectator may produce a spontaneous
and sincere response to the actual sensations and
perceptions produced by the external shock.
The spontaneity of the declaration is such that the
declaration itself may be regarded as the event speaking
through the declarant rather than the declarant speaking
for himself.
Requisites for the admissibility of res gestae
Spontaneous Statements

Matters that may be established by common 1. That there is a startling event or occurrence taking
reputation place;

355
 REMEDIAL LAW
2. A statement was made, while the event is taking May precede, or Confined to matters
place or immediately prior to or subsequent thereto; accompany or follow the occurring after the
3. The statement was made before the declarant had principal act homicidal act
time to contrive or devise a falsehood; and
4. The statement relates to the circumstances of the Justification is the Justification is the
startling event or occurrence or that the statements spontaneity of the trustworthiness, being
must concern the occurrence in question and its statement given by the person who
immediately attending circumstances. (Sec. 42, Rule was aware of his
130; Talidano v. Falcom Maritime & Allied Services, impending death
Inc., G.R. No. 172031, July 14, 2008)
Two types of res gestae
Q: Edgardo Lupac was convicted of the crime of rape.
One of the evidence adduced was AAA’s spontaneous, Verbal Acts Spontaneous
unhesitating and immediate denunciation of the rape Statements
to her Tita Terry and her mother (hindot and inano Utterances which Statements or
ako ni Kuya Ega being the term she used). Is the accompany some act or exclamations made
statement made by AAA part of the res gestae under conduct to which it is immediately after some
Section 42, Rule 130 of the Rules of Court? desired to give legal exciting occasion by a
effect; When such act has participant or spectator
A: YES. AAA’s denunciation was part of the res gestae. AAA intrinsically no definite and asserting the
went to Tita Terry’s house immediately after fleeing from legal significance, or only circumstances of that
Lupac and spontaneously, unhesitatingly and an ambiguous one, its occasion as it is observed
immediately declared to Tita Terry that Lupac had legal purport or tenor by him.
sexually abused her. Such manner of denunciation of him may be ascertained by
as her rapist was confirmed by Tita Terry’s testimony considering the words
about AAA’s panic-stricken demeanor that rendered it accompanying it, and
difficult to quickly comprehend what the victim was then these utterances thus
saying. Of course, AAA’s use of the words hindot and inano enter merely as verbal
ako ni Kuya Ega said enough about her being raped. part of the act.
(People v. Edgardo Lupac y Flores, G.R. No. 182230,
September 19, 2012) The res gestae is the The res gestae is the
equivocal act. startling occurrence.
NOTE: The reason for the admissibility of spontaneous
statements is trustworthiness and necessity, because Verbal act must be May be prior to,
statements are made instinctively, and because said contemporaneous with or simultaneous with, or
natural and spontaneous utterances are more convincing must accompany the subsequent to the
than the testimony of the same person on the stand. equivocal act to be startling occurrence.
admissible.
Verbal Acts
Q: Sam raped Reyna. After raping Reyna, Sam fled.
1. The principal act to be characterized must be Reyna then rushed to the police station and told
equivocal; Police Officer Buloy what had happened. Sam was
2. The equivocal act must be material to the issue; charged with rape. During the trial, Reyna can no
3. The statement must accompany the equivocal act; longer be located. If the prosecution presents Buloy to
and testify on what Reyna had told him, would such
4. The statement gives a legal significance to the testimony of Buloy be hearsay? Explain. (2005 Bar)
equivocal act (Ibid).
A: NO. It is part of res gestae. It is also an independently
NOTE: The reason for the admissibility of verbal acts is
relevant statement. Buloy testified based on his personal
that the motive, character and object of an act are
knowledge; that is, he was testifying to the fact that Reyna
frequently indicated by what was said by the person
told him that she was raped by Sam and not to the truth of
engaged in the act.
Reyna’s statement (People v. Gaddi, G.R. No. 74065, Feb. 27,
1989).
Part of res gestae vs. Dying Declaration
Factors to determine whether statements offered in
Part of Res Gestae Dying Declaration evidence as part of the res gestae have been made
It is the event itself which A sense of impending spontaneously
speaks death takes the place of
an oath and the law 1. The time that has elapsed between the occurrence of
regards the declarant as the act and transaction and the making of the
testifying statement;
May be made by the killer Can be made by the victim 2. The place where the statement was made;
after or during the killing only 3. The condition of the declarant when he made the
or that of a third person statement;

356
 Evidence
4. The presence or absence of intervening occurrences
between the occurrence and the statement relative
thereto; and
5. The nature and circumstances of the statement itself
(Francisco, 1992).
Q: Gilberto Villarico, Sr., Gilberto Villarico, Jr., Jerry
Ramentos, and Ricky Villarico were convicted of the
crime of murder for the killing of Haide Cagatan. One
of the evidence adduced was a statement of Haide to
his mother saying that Berting shot him in the
immediate aftermath of the shooting where he was
the victim. Is the statement made by Haide
admissible?
A: YES. Haide’s statement was part of the res gestae and
was admissible. The requisites concurred herein. Firstly,
the principal act the shooting of Haide was a startling
occurrence. Secondly, his statement to his mother about
being shot by the group of Berting was made before Haide
had time to contrive or to devise considering that it was
uttered immediately after the shooting. And, thirdly, the
statement directly concerned the startling occurrence
itself and its attending circumstance: that is, the identities
of the assailants. (People v. Villarico, et. Al., G.R. No.
158362, April 4, 2011)
ENTRIES IN THE COURSE OF BUSINESS
or THE SHOP-BOOK RULE
Entries made at, or near the time of transactions to which
they refer, by a person deceased, or unable to testify, who
was in a position to know the facts therein stated, may be
received as prima facie evidence, if such person made the
entries in his professional capacity or in the performance
of duty and in the ordinary or regular course of business
or duty (Sec. 43, Rule 130).
Reason for admissibility
What a man has actually done and committed to writing
when under obligation to do the act, it being in the course
of the business he has undertaken, and he being dead,
there seems to be no danger in submitting to the
consideration of the court.
NOTE: Reliability is furnished by the fact that regularly
kept records typically have a high degree of accuracy. The
law does not fix any precise moment when the entries
should be made. It is sufficient if the entry was made
within a reasonable period of time so that it may appear
to have taken place while the memory of the facts was
unimpaired.
Requisites for the admissibility of entries in the
course of business
1. The person who made the entry must be dead or
unable to testify;
2. The entries were made at or near the time of the
transactions to which they refer;
3. The entrant was in a position to know the facts stated
in the entries;
357
4. The entries were made in his professional capacity or
in the performance of a duty, whether legal,
contractual, moral or religious; and
5. The entries were made in the ordinary or regular
course of business or duty (Patula v. People, G.R. No.
164457, April 11, 2012).
NOTE: The law does not fix any precise moment when the
entries should be made as long as the entry was made
within a reasonable period of time so that it may appear
to have taken place while the memory of the facts was
unimpaired.
Proof of regularity of the entries
It may be proved by the form in which they appear as
entries in the books/ledgers. There is no need to present
for testimony the clerk who manually made the entries.
The person who supervised such clerk is competent to
testify that:
1. The account was prepared under his supervision;
and
2. That the entries were regularly entered in the
ordinary course of business (Regalado, 2008).
NOTE: Baptismal certificates are admissible as entries in
the ordinary course of business, even absent the
testimony of the officiating priest or official recorder
because it is one of its transactions in the exercise of
ecclesiastical duties and recorded in the book of the
Church during the course of its business. (Heirs of Conti v.
Court of Appeals, G.R. No. 118464, December 21, 1998)
When the declarant is alive
GR: Business entries may not be admitted in evidence as
an exception to the hearsay rule when the declarant is
alive.
XPN: They may nevertheless be availed of by said entrant
as a memorandum to refresh his memory while testifying
on the transactions reflected therein.
ENTRIES IN OFFICIAL RECORDS
Entries in official records made in the performance of his
duty by a public officer of the Philippines, or by a person
in the performance of a duty specially enjoined by law, are
prima facie evidence of the facts therein stated (Sec. 44,
Rule 130).
Official record
The original document that is legally recognized and thus
ensuring the quality of a fact when it is established. It may
be a:
1. Register;
2. Cash book; or
3. An official return or certificate (Regalado, 2008).
Reason for admissibility
 REMEDIAL LAW
1. Necessity – due to the impossibility of requiring the Persons responsible for such lists have no motive to
official’s attendance as a witness to testify to the deceive and they further realize that unless the list,
innumerable transactions occurring in the course of register or periodical or other published compilation are
his duty; prepared with care and accuracy, their work will have no
2. Trustworthiness – there is a presumption of commercial or probative value.
regularity in the performance of official duty.
Requisites for the admissibility of commercial lists
Requisites for the admissibility of entries in official and the like
records
1. Statements of matters of interest to persons engaged
1. Entries were made by a public officer in the in an occupation;
performance of his duties or by a person in the 2. Statements must be contained in a list, register,
performance of a duty especially enjoined by law; periodical, or other published compilation;
2. Entrant had personal knowledge of the facts stated 3. Compilation is published for use by persons engaged
by him or such facts were acquired by him from in that occupation; and
reports made by persons under a legal duty to submit 4. Such is generally relied upon by them.
the same; and
3. Such entries were duly entered in a regular manner Examples of commercial lists
in the official records (Ibid.).
1. Trade journals reporting current prices and other
Entries in official record vs. Entries in the course of market data;
business 2. Mortality tables compiled for life insurance;
3. Abstracts of title compiled by reputable title
Entries in Entries in the examining institutions or individuals; or
Official Record Course of Business 4. Business directories, animal pedigree registers, and
The entrant, if a private It is sufficient that the the like (Francisco, 1992).
individual, must have entrant made the entries
acted pursuant to a pursuant to a duty be it LEARNED TREATISES
specific legal duty legal, contractual, moral
specially enjoined by law. or religious. A published treatise, periodical or pamphlet on a subject
of history, law, science, or art is admissible as tending to
Entrant need not be dead Entrant must be dead or prove the truth of a matter stated therein if the court takes
or unable to testify unable to testify. judicial notice, or a witness expert in the subject testifies,
that the writer of the statement in the treatise, periodical
Need not be Needs authentication or pamphlet is recognized in his profession or calling as
authenticated expert in the subject (Sec. 46, Rule 130).
Exception to the best Best Evidence Rule Reason for admissibility
evidence rule applies
(irremovability of public The learned writers have no motive to misrepresent due
records) to the awareness that his work will be carefully
scrutinized by the learned members of the profession and
Q: Should entries in the police blotter be given that he shall be subject to criticisms and be ultimately
probative value? rejected as an authority on the subject matter if his
conclusions are found to be invalid.
A: No, as they are not conclusive evidence of the truth of
the contents but merely of the fact that they were Requisites for the admissibility of learned treatises
recorded (People v. Cabrera, Jr., G.R. No. 138266, April 30,
2003). 1. When the court can take judicial notice of them; or
2. When an expert witness testifies that the author of
COMMERCIAL LISTS AND THE LIKE such is recognized as expert in that profession (Sec.
46, Rule 130).
Evidence of statements of matters of interest to persons
engaged in an occupation contained in a list, register, TESTIMONY OR DEPOSITION
periodical, or other published compilation is admissible AT A FORMER TRIAL
as tending to prove the truth of any relevant matter so
stated if that compilation is published for use by persons The testimony or deposition of a witness deceased or
engaged in that occupation and is generally used and unable to testify, given in a former case or proceeding,
relied upon by them therein (Sec. 45, Rule 130). judicial or administrative, involving the same parties and
subject matter, may be given in evidence against the
Reason for admissibility adverse party who had the opportunity to cross-examine
him (Sec. 47, Rule 130).
Because of the usual inaccessibility of the persons
responsible for the compilation of matters contained in Requisites for admissibility
such lists, it would cause the court inconvenience if it
would issue summons to these numerous individuals.

358
 Evidence
1. The witness evidence is dead or unable to testify;
2. The testimony or deposition was given in a former
case or proceeding, judicial or administrative,
between the same parties or those representing the
same interests;
3. The former case involved the same subject as that in
the present case, although on different causes of
action;
4. The issue testified to by the witness in the former
trial is the same issue involved in the present case;
and
5. The adverse party had an opportunity to cross-
examine the witness in the former case (Manliclic v.
Calunan, G.R. No. 150157, January 25, 2007).
NOTE: What may be admitted as evidence is testimony or
deposition. A decision in a previous case involving the
same parties and the same subject matter does not fall
under the exception. What is considered as a testimony in
the former trial is the “transcript of the witness’
testimony.”
Grounds which make a witness unable to testify in a
subsequent case
1. Death;
2. Insanity or mental incapacity or the former witness’
loss of memory through old age or disease;
3. Physical disability by reason of sickness or advanced
age;
4. The fact that the witness has been kept away by
contrivance of the opposite party; or
5. The fact that after diligent search the former witness
cannot be found (Francisco, 1992).
Proof of former testimony
1. If reduced to writing, such writing is the primary
evidence thereof and should be used;
2. The stenographic notes or a copy thereof.
NOTE: The judge’s notes are not evidence of what the
witness said, and, as a rule, they can be used only to
refresh the memory of a witness.
OPINION RULE
Opinion
A person’s thought, belief, or inference, especially a
witness’s view about facts in dispute, as opposed to
personal knowledge of the facts themselves (Black’s Law
Dictionary, 2004).
GR: The opinion of a witness is not admissible. The
witness must testify to facts within their knowledge and
may not state their opinion, even on their cross-
examination.
XPNs:
1. Opinion of expert witness;
2. Opinion of ordinary witnesses
359
NOTE: Opinion testimony involving questions of law or
the ultimate fact in issue is not admissible.
Hearsay evidence vs. Opinion evidence (2002, 2004
Bar)
Hearsay Evidence Opinion Evidence
Consists of testimony that Expert evidence based on
is not based on personal the personal knowledge,
knowledge of the person skill, experience or
testifying training of the person
testifying and evidence of
an ordinary witness on
limited matters.
OPINION OF EXPERT WITNESS
The opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he shown
to possess may be received in evidence (Sec. 49, Rule 130).
NOTE: The use of the word may, signifies that the use of
opinion of expert witness is permissive and not
mandatory on the part of the courts. It only assists the
court in the determination of the issue before it, and is for
the court to adopt or not to adopt depending on its
appreciation of the attendant facts and the applicable law
(Tabao v. People, G.R. No. 187246, July 20, 2011).
Expert Witness
He is one who belongs to the profession or calling to
which the subject matter of the inquiry relates and who
possesses special knowledge on questions on which he
proposes special knowledge to express an opinion
(Regalado, 2008). Before one may be allowed to testify as
an expert witness, his qualification must first be
established by the party presenting him, i.e., he must be
shown to possess the special skill or knowledge relevant
to the question to which he is to express an opinion
(People vs. Fundano, G.R. No. 124737, June 26, 1998).
NOTE: Expert testimony is not admissible as to a matter
not in issue.
Degree of skill or knowledge
There is no definite standard in determining the degree of
skill or knowledge that a witness must possess in order to
testify as an expert as long as the following are present:
1. Training and education;
2. Particularity, first-hand familiarity with the facts of
the case;
3. Presentation of authorities or standards upon which
his opinion is based. (People v. Abriol, G.R. No. 123137,
October 17, 2001)
NOTE: An expert witness may base his opinion either on
the first-hand knowledge of the facts or on the basis of
hypothetical questions where the facts are presented to
him hypothetically and on the assumption that they are
true, formulates his opinion on such hypothesis.
 REMEDIAL LAW
The probative force of the testimony of an expert does not GR: Character evidence is NOT admissible in evidence.
lie in a mere statement of his theory or opinion, but rather
in the aid that he can render to the courts in showing the XPNs:
facts which serve as a basis for his criterion and the
reasons upon which the logic of his conclusion is founded. 1. Subject to certain exceptions in criminal cases;
(Dizon v. Tuazon, G.R. No. 172167, July 9, 2008) 2. In civil cases;
3. In case the character of a witness has been
Test in determining the need to resort to expert previously impeached (Sec. 14, Rule 132).
evidence
NOTE: The reason for this is that the evidence of a
Whether the opinion called for will aid the court in person’s character does not prove that such person acted
resolving an issue. in conformity with such character or trait in a particular
occasion.
Q: In a case where the issue involves forgery, two
expert witness were presented by the plaintiff, the CHARACTER EVIDENCE
NBI official and a handwriting expert from the PNP. IN CRIMINAL CASES
The NBI official testified that the signatures in the
deed of sale and the other sample signatures are the As to the As to the As to the
same. However, the PNP handwriting expert declared Accused Prosecution Offended
that the person who signed are not the same person. Party
The lower court gave credit and based the ruling on He may prove They may not His good or bad
the testimony of the PNP handwriting expert on the his good moral prove the bad moral character
fact that the said witness has better credentials than character which moral character may be proved
the NBI witness. Is the ruling valid, because of the fact is pertinent to of the accused as long as it
that the court based the ruling on the credentials? the moral trait which is tends to
involved in the pertinent to the establish in any
A: While credentials of an expert witness play a factor in offense charged moral trait reasonable
the evidentiary and persuasive weight of his testimony, involved in the degree the
the same cannot be the sole factor in determining its offense charged, probability or
value. The judge must conduct his own independent unless in improbability of
examination of the signatures under scrutiny (Tamani, et rebuttal when the offense
al. v. Roman Salvador and Filomena Bravo, G.R. No. 171497, the accused charged (2002,
April 4, 2011). opens the issue 2010 Bar)
by introducing
OPINION OF ORDINARY WITNESS evidence of his
good moral
That which is given by a witness who is of ordinary character
capacity and who has by opportunity acquired a
particular knowledge which is outside the limits of NOTE: In criminal cases, character evidence is
common observation and which may be of value in inadmissible under the following situations:
elucidating a matter under consideration.
1. In rebuttal, proof of the bad character of the victim is
The opinion of a witness for which proper basis is given, not admissible if the crime was committed through
may be received in evidence regarding: treachery and premeditation; and
2. In rape cases, the evidence of complainant’s past
1. The identity of a person about whom he has sexual conduct, or reputation or opinion thereof shall
adequate knowledge; not be admitted unless and only to the extent that the
2. A handwriting with which he has sufficient court finds that such evidence is material and
familiarity; relevant to the case (Sec. 6, R.A. 8505).
3. The mental sanity of a person with whom he is
sufficiently acquainted; and CHARACTER EVIDENCE
4. The witness’ impressions of the emotion, IN CIVIL CASES
behavior, condition or appearance of a person
(Sec. 50, Rule 130). (2005 Bar) The moral character of either party thereto cannot be
proved unless it is pertinent to the issue of character
CHARACTER EVIDENCE involved in the case (Sec. 51, Rule 130).

Character Proof of bad character

The aggregate of the moral qualities which belong to and 1. Cross-examination;

distinguish an individual person; the general result of
one’s distinguishing attributes. (Black’s Law Dictionary,
2004)
Admissibility of Character Evidence
2. Independent evidence of bad character.
NOTE: Personal opinion as to the moral character of the
accused and the specific conduct of the part exhibiting

360
 Evidence
character is excluded as evidence. However, reputation in
the community is admissible.
---
Q: Don was prosecuted for homicide for allegedly
beating up Vilma to death with an iron pipe. May the
prosecution introduce evidence that Vilma had a good
reputation for peacefulness and non-violence? Why?
(2002 Bar)
A: The prosecution may introduce evidence of the good or
even bad moral character of the victim if it tends to
establish in any reasonable degree the probability or
improbability of the offense charged. In this case, the
evidence is not relevant.
OFFER AND OBJECTION
GR: The court shall consider only the evidence which has
been formally offered. The purpose for which the evidence
is offered must be specified (Sec. 34, Rule 132). (2007
Bar)
XPNs:
1. Marked exhibits not formally offered may be
admitted provided it complies with the following
requisites:
a. Must be duly identified by testimony duly
recorded; and
b. Must have been incorporated in the records of
the case (Ramos v. Dizon, G.R. No. 137247, August
6, 2006);
2. Under the Rule on Summary Procedure, where no full
blown trial is held in the interest of speedy
administration of justice;
3. In summary judgments under Rule 35 where the
judge based his decisions on the pleadings,
depositions, admissions, affidavits and documents
filed with the court;
4. Documents whose contents are taken judicial notice
of by the court;
5. Documents whose contents are judicially admitted;
6. Object evidence which could not be formally offered
because they have disappeared or have become lost
after they have been marked, identified and testified
on and described in the record and became the
subject of cross-examination of the witness who
testified on them during the trial (Tabuena v. CA, G.R.
No. 85423, May 6, 1991; People v. Napat-a, G.R. No.
84951, November 14, 1989); or
7. Documents and affidavits used in deciding quasi-
judicial or administrative cases (Bantolino v. Coca-
Cola Bottlers Inc., G.R. No. 153660, June 10, 2003).
OFFER OF EVIDENCE
Purposes of offer of evidence
361
1. To notify the party of possible objection, and for the
offeror to make necessary correction at the trial level
to meet the objection;
2. To allow the trial judge to rule properly;
3. To lay basis for appeal so that the appellate court can
decide intelligently (Regalado, 2008).
NOTE: A formal offer is necessary, since judges are
required to base their findings of fact and their judgment
solely and strictly upon the evidence offered by the
parties at the trial. (Aludos v. Suerte, G.R. No. 165285, June
18, 2012)
To allow parties to attach any documents to their
pleadings and then expect the court to consider it as
evidence, even without formal offer and admission, may
draw unwarranted consequences. Opposing parties will
be deprived of their chance to examine the document and
to object to its admissibility. On the other hand, the
appellate court will have difficulty reviewing the
documents not previously scrutinized by the court below.
(Candido v. Court of Appeals, G.R. No. 107493, February 1,
1996)
Reasons for stating purposes of offer of evidence
1. For the court to determine whether that piece of
evidence should be admitted or not;
2. Evidence submitted for one purpose may not be
considered for any other purpose (People v. Diano,
[CA], 66 O.G. 6405); and
3. For the adverse party to interpose the proper
objection.
NOTE: It is basic in the law of evidence that the court shall
consider evidence solely for the purpose for which it was
offered. (Ragudo vs. Fabella Estate Tenants Assoc. Inc., G.R.
No. 146823, August 9, 2005)
Identification of a Documentary Evidence vs. Formal
Offer as an Exhibit
Identification of a Formal Offer as an
Documentary Evidence Exhibit
Done in the course of the Done only when the party
trial and accompanied by rests its case (Dizon v.
the marking of the Court of Tax Appeals, G.R.
evidence as an exhibit No. 140944, April 30,
2008).
---
Q: Gizel filed a complaint for recovery of possession
and damages against Fara. In the course of the trial,
Gizel marked his evidence but his counsel failed to file
a formal offer of evidence. Fara then presented in
evidence tax declarations in the name of his father to
establish that his father is a co-owner of the property.
The court ruled in favor of Fara, saying that Gizel
failed to prove sole ownership of the property in the
face of Fara’s evidence. Was the court correct? Explain
briefly. (2007 Bar)
A: YES. The court shall consider no evidence which has
not been formally offered. The trial court rendered
 REMEDIAL LAW
judgment considering only the evidence offered by Fara. is not the offer
The offer is necessary because it is the duty of the judge to contemplated in the rules
rest his findings of fact and his judgment only and strictly (Riano, 2016).
upon the evidence offered by the parties at the trial.
(People v. Pecardal, G.R. No. 71381, November 24, 1986) NOTE: The offer shall be done orally unless allowed by the
court to be in writing (Sec. 35, Rule 132).
---
Stages in the presentation of documentary evidence
Q: Aiza and Matet were charged with murder. Upon
application of the prosecution, Matet was discharged
from the Information to be utilized as a State witness.
The prosecutor presented Matet as witness but forgot
to state the purpose of his testimony much less offer
it in evidence. Matet testified that she and Aiza
conspired to kill the victim but it was Aiza who
actually shot the victim. The testimony of Matet was
the only material evidence establishing the guilt of
Aiza. Matet was thoroughly cross-examined by the
defense counsel. After the prosecution rested its case,
the defense filed a motion for demurrer to evidence
based on the following grounds:

1. The testimony of Matet should be excluded

because its purpose was not initially stated and it
was not formally offered in evidence; and
2. Matet's testimony is not admissible against Aiza
pursuant to the rule on "res inter alios acta".
(2003 Bar)

Rule on the motion for demurrer to evidence on the

above grounds.

A:

1. The demurrer to evidence should be denied because

the defense counsel did not object to her testimony
despite the fact that the prosecutor forgot to state its
purpose and offer it in evidence. Moreover, the
defense counsel thoroughly cross-examined Matet
and thus waived the objection.
2. The res inter alios acta rule does not apply because
Matet testified in open court and was subjected to
cross-examination.

WHEN TO MAKE AN OFFER

Testimonial Evidence Documentary and OBJECTION

Offer must be made at the
time the witness is called
to testify. (2009 Bar)
Every time a new witness
is called to testify, there
must be an offer of
evidence.
Object Evidence
Must be made after the
presentation of party’s
testimonial evidence, and
before resting his case
(Sec. 35, Rule 132).
The evidence is only
offered once, after all the
testimonial evidence are
offered and prior to the
resting of the case for a
party.
NOTE: The presentation
of a documentary or
object evidence for
marking and
identification during trial
Ways of impeaching the evidence of the proponent
1. By objection and without objection, the objection is
waived and the evidence is admitted (Sec. 36, Rule
132); or
2. By motion to strike (Sec. 39, Rule 132).
Purposes of objections
1. To keep out inadmissible evidence that would cause
harm to a client’s cause;
2. To protect the record, i.e. to present the issue of
inadmissibility of the offered evidence in a way that
if the trial court rules erroneously, the error can be
relied upon as a ground for a future appeal;
3. To protect a witness from being embarrassed on the
stand or from being harassed by the adverse counsel;

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 Evidence
4. To expose the adversary’s unfair tactics like his
consistently asking obviously leading questions;
5. To give the trial court an opportunity to correct its
own errors and at the same time warn the court that
a ruling adverse to the objector may supply a reason
to invoke a higher court’s appellate jurisdiction; and
6. To avoid a waiver of the inadmissibility of an
otherwise inadmissible evidence (Riano, 2016).
Time when objection should be made
Objection to evidence offered orally must be made
immediately after the offer is made. Objection to a
question propounded during the oral examination of a
witness shall be made as soon as the grounds therefore
shall become reasonably apparent. An offer of evidence
in writing shall be objected to within 3 days after notice of
the offer unless a different period is allowed by the court.
In any case, the grounds for objection must be specified
(Sec. 36, Rule 132).
Testimonial Evidence Documentary and
Object Evidence
1. When the offer was When the document is
made; offered in evidence.
2. When an objectionable
question is asked of the
witness.
NOTE: As a rule, failure to specify the grounds for the
objection is in effect a waiver of the objection, except
where the evidence could not have been legally admitted
for any purpose whatsoever. (People v. Singh, 45 Phil. 676)
The objection must be specific enough to adequately
inform the court the rule of evidence or of substantive law
that authorizes the exclusion of evidence. (Riano, 2016)
Contemporaneous Objection Rule
It requires that a specific and timely objection be made to
the admission of evidence. Objections to the admission of
evidence must be made seasonably, at the time it is
introduced or offered, otherwise they are deemed waived,
and will not be entertained for the first time on appeal.
(People v. Bañares, G.R. No. 68298, November 25, 1986)
Kinds of objections
1. Irrelevant – The evidence being presented is not
relevant to the issue (e.g. when the prosecution offers
as evidence the alleged offer of an insurance
company to pay for the damages suffered by the
victim in a homicide case);
2. Incompetent – The evidence is excluded by law or
rules (Sec. 3, Rule 138) (e.g. evidence obtained in
violation of the Constitutional prohibition against
unreasonable searches and seizures);
3. Specific objections – e.g. parol evidence and best
evidence rule;
4. General objections – e.g. continuing objections (Sec.
37).
a. objection to a question propounded in the
course of the oral examination of the witness;
and
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b. objection to an offer of evidence in writing
5. Formal – One directed against the alleged defect in
the formulation of the question (e.g. ambiguous
questions, leading and misleading questions,
repetitious questions, multiple questions,
argumentative questions) (Riano, 2016); and
6. Substantive – One made and directed against the very
nature of evidence (eg. parol, not the best evidence
hearsay, privileged communication, not
authenticated, opinion, res inter alios acta) (Ibid).
NOTE: Objections to admissibility of evidence cannot be
raised for the first time on appeal. When a party desires
the court to reject the evidence offered he must so state in
the form of objection. Without objection, he cannot raise
the question for the first time on appeal. (People v. Salak,
G.R. No. 181249, March 14, 2011)
REPETITION OF AN OBJECTION
Rules on continuing objections
GR: When it becomes reasonably apparent in the course
of the examination that the questions asked are of the
same class as those to which objection has been made
(whether sustained or overruled), it shall not be
necessary to repeat the objection, it being sufficient for
the adverse party to record his continuing objection to
such class of questions (Sec. 37, Rule 132).
XPNs:
1. Where the question has not been answered, it is
necessary to repeat the objection when the evidence
is again offered or the question is again asked;
2. Incompetency is shown later;
3. Where objection refers to preliminary question,
objection must be repeated when the same question
is again asked during the introduction of actual
evidence;
4. Objection to evidence was sustained but reoffered at
a later stage of the trial;
5. Evidence is admitted on condition that its
competency or relevancy be shown by further
evidence and the condition is not fulfilled, the
objection formerly interposed must be repeated or a
motion to strike out the evidence must be made; and
6. Where the court reserves the ruling on objection, the
objecting party must request a ruling or repeat the
objection.
RULING
It must be given immediately after the objection is made,
unless the court desires to take a reasonable time to
inform itself on the question presented; but the ruling
shall always be made during the trial and at such time as
will give the party against whom it is made an opportunity
to meet the situation presented by the ruling. (Sec. 38, Rule
132).
However, if the objection is based on two or more
grounds, a ruling sustaining the objection on one or some
 REMEDIAL LAW
of the must specify the ground or grounds relied upon.
(Ibid).
NOTE: The rulings of the trial court during the course of
the trial are interlocutory in nature and may not be the
subject of separate appeals or review on certiorari but are
assigned as errors and reviewed on appeal properly taken
from the decision rendered by the trial court (Gatdula v.
People, G.R. No. 140688, January 26, 2001).
STRIKING OUT OF AN ANSWER
Modes of excluding inadmissible evidence
1. Objection – when the evidence is offered;
NOTE: Objections may be waived because the right
to object is merely a privilege which the party may
waive (People v. Martin, G.R. No. 172069, January 30,
2008). However, such waiver only extends to the
admissibility of the evidence. It does not involve an
admission that the evidence possesses the weight
attributed to it by the offering party (Riano, 2016).
2. Motion to strike out or expunge:
a. When the witness answers prematurely before
there is reasonable opportunity for the adverse
party to object, and such objection is found to be
meritorious;
b. When the answers are incompetent, irrelevant,
or improper (Sec. 39, Rule 132);
c. When the witness becomes unavailable for
cross-examination through no fault of the cross-
examining party;
d. When the answer is unresponsive;
e. When the testimony was allowed conditionally
and the condition for its admissibility was not
fulfilled (Riano, 2016);
f. When a witness has volunteered statements in
such a way that the party has not been able to
object thereto;
g. When a witness testifies without a question
being addressed to him;
h. When a witness testifies beyond the ruling of the
court prescribing the limits within which he may
answer (Herrera, 1999); or
i. Uncompleted testimonies where there is no
opportunity for the other party to cross-
examination (Ibid.).
NOTE: A direct testimony given and allowed without a
prior formal offer may not be expunged from the record.
When such testimony is allowed without any objection
from the adverse party, the latter is estopped from
questioning the non-compliance with the requirement.
TENDER OF EXCLUDED EVIDENCE
When an attorney is not allowed by the court to present
testimony which he thinks is competent, material and
necessary to prove his case, he must make an offer of
proof. This is the method properly preserving the record
to the end that the question may be saved for purposes of
review (Caraig, 2004).
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NOTE: This rule is in preparation in the filing of an appeal.
Moreover, the rule is that the offeror must preserve such
excluded evidence on his record and stating the purpose
of such preservation, i.e. knowing that it is relevant and
must be admitted.
Purposes of tender of excluded evidence
1. To allow the court to know the nature of the
testimony or the documentary evidence and
convince the trial judge to permit the evidence or
testimony; and
2. To create and preserve a record for appeal, should
the judge be not persuaded to reverse his earlier
ruling. (Riano, 2016)
Offer of Proof vs. Offer of Evidence
Offer of Proof / Tender Offer of Evidence
of Excluded Evidence
Only resorted to if Refers to testimonial,
admission is refused by documentary or object
the court for purposes of evidence that are
review on appeal presented or offered in
court by a party so that
the court can consider his
evidence when it comes
to the preparation of the
decision
How tender of excluded evidence is made
1. As to documentary or object evidence: It may have the
same attached to or made part of the record. (Sec. 40,
Rule 132) (1991, 1996 Bar)
NOTE: The party should ask that evidence ruled out
at the trial be attached to the record of case in order
that same may be considered on appeal. (Bañez vs.
CA, G.R. No. L-30351, September 11, 1974)
2. As to oral evidence: It may state for the record the
name and other personal circumstances of the
witness and the substance of the proposed
testimony. (Sec. 40, Rule 132)
How offer of evidence is made
1. Before the court has ruled on the objection, in which
case its function is to persuade the court to overrule
the objection or deny the privilege invoked;
2. After the court has sustained the objection, in which
case its function is to preserve for the appeal the
evidence excluded by the privilege invoked; or
3. Where the offer of proof includes the introduction of
documents, or any of the physical evidence, the same
should be marked for identification so that they may
become part of the record (Herrera, 1999).
When offer of proof is NOT required
1. When the question to which an objection has been
sustained clearly reveals on its face the substance,
purpose and relevancy of the excluded evidence;
2. When the substance, purpose and relevancy of the
excluded evidence were made known to the court
 Special Rules
either in the court proceedings and such parts appear SPECIAL RULES
on record;
3. Where evidence is inadmissible when offered and
excluded, but thereafter becomes admissible, it must REVISED RULES ON SUMMARY PROCEDURE
be re-offered, unless the court indicates that a second
offer would be useless (Herrera, 1999).

English Exchequer Rule vs. Harmless Error Rule CASES COVERED BY THE RULE

1. Civil cases:
English Exchequer Rule Harmless Error Rule
It provides that a trial The apellate court will
a. All cases of forcible entry and unlawful detainer,
court's error as to the disregard an error
irrespective of amount of damages or unpaid
admission of evidence committed by the trial
rentals sought to be recovered provided when
was presumed to have court in the admission of
attorney’s fees are awarded, the same shall not
caused prejudice and evidence unless in its
exceed Php 20,000.00; and
therefore, almost opinion, some substantial
b. All other civil cases, except probate proceedings,
automatically required wrong or miscarriage of
where the total amount of the plaintiff’s claim
new trial. justice has been
does not exceed Php 100,000 (outside Metro
occasioned.
Manila) or Php 200,000 (in Metropolitan
Manila) exclusive of interest and costs (As
NOTE: We follow the harmless error rule, for in dealing
amended by A.M. No. 02-11-09-SC effective
with evidence improperly admitted in the trial, courts
November 12, 2002)
examine its damaging quality and its impact to the
substantive rights of the litigant. If the impact is slight and
2. Criminal cases:
insignificant, appellate courts disregard the error as it will
not overcome the weight of the properly admitted
a. Violations of traffic laws, rules and regulations;
evidence against the prejudiced part. (People v. Teehankee
b. Violations of rental law;
Jr., G.R. Nos. 111206-08, October 6, 1995)
c. Violations of municipal or city ordinances;
d. All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding 6 months or a fine
not exceeding Php 1,000.00, or both,
irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability
arising there from. Provided however, that in
offenses involving damage to property through
criminal negligence, this Rule shall govern
where the imposable fine does not exceed Php
10,000.00; and
e. Violation of BP 22 (Sec. 1, Revised Rules on
Summary Procedure).

Commencement of a criminal case

The filing of criminal cases falling within the scope of this

Rule shall be either by complaint or by information:
Provided, however, that in Metropolitan Manila and in
Chartered Cities, such cases shall be commenced only by
information, except when the offense cannot be
prosecuted de officio.

The complaint or information shall be accompanied by

the affidavits of the complainant and of his witnesses in
such number of copies as there are accused plus 2 copies
for the court's files. If this requirement is not complied
with within 5 days from date of filing, the case may be
dismissed (Sec. 11, Ibid.).

Pleadings allowed in civil cases

The only pleadings allowed to be filed are the complaints,

compulsory counterclaims and cross-claims pleaded in
the answer, and the answers thereto (Sec. 3(a), ibid.).

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