Authentication of electronic documents and electronic signatures

Burden of proof

The person seeking to introduce an electronic document in any legal proceeding has the burden
of proving its authenticity in the manner provided in this Rule. [Sec. 1, Rule 5, REE]

Manner of authentication of private electronic document offered as authentic

1. by evidence that it had been digitally

signed by the person purported to have

signed the same;

2. by evidence that other appropriate

security procedures or devices as may be authorized by the Supreme Court or by law

for authentication of electronic documents were applied to the document; or

3. by other evidence showing its integrity and reliability to the satisfaction of the judge.

[Sec. 2, Rule 5, REE]

Proof of electronically notarized document

A document electronically notarized in accordance with the rules promulgated by the Supreme
Court shall be considered as a public

document and proved as a notarial document under the Rules of Court. [Sec. 3, Rule 5, REE]

Manner of authentication of electronic signature

a. By evidence that a method or process

was utilized to establish a digital signature

and verify the same;

b. By any other means provided by law; or c. By any other means satisfactory to the

judge as establishing the genuineness of

the electronic signature. [Sec. 2, Rule 6, REE]

Page 481 of 525

d. Electronic hearsay rule

documents and

General Rule: Hearsay rule does not apply to: 1. A memorandum, report, record or data
compilation of acts, events, conditions,

opinions, or diagnoses
2. made by electronic, optical or other similar
means
3. at or near the time of or from transmission

or supply of information
4. by a person with knowledge thereof
5. kept in the regular course or conduct of a

business activity and

6. such was the regular practice to make the

memorandum, report, record, or data compilation by electronic, optical or similar means and

7. shown by the testimony of the custodian or other qualified witnesses [Sec. 1, Rule 8, REE]

Exception: The presumption may be overcome by evidence of the untrustworthiness of the

source of information or the method or circumstances of the preparation, transmission or
storage thereof. [Sec. 2, Rule 8, REE]

e. Audio,photographic,videoand ephemeral evidence

Audio, photographic and video evidence of events, acts or transactions

U.P. LAW BOC EVIDENCE

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1. Must be shown, presented or displayed to the court; and

2. Shall be identified, explained or authenticated by the person who made the recording or
by some other person competent to testify on the accuracy thereof [Sec. 1, Rule 11,
REE]

Ephemeral electronic communications

1. Proven by the testimony of:

1. a person who was a party to the same;

or

2. has personal knowledge thereof

2. In the absence or unavailability of such witnesses, other competent evidence may be
admitted

Recording of the telephone conversation or ephemeral electronic communication

Same as audio, photo and video evidence

If recorded or embodied in an electronic document, provisions of Rule 5 (Authentication of

electronic documents) shall apply.

[Sec. 2, Rule 11, REE]

5. Parol Evidence Rule
Parol evidence

Any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a
complete and enforceable agreement embodied in a document [2 Regalado 730, 2008 Ed.].

The parol evidence rule forbids any addition to or contradiction of the terms of a written
instrument by testimony or other evidence purporting to show that, at or before the execution of
the parties' written agreement, other or different terms were agreed upon by the parties, varying
the purport of the written contract. [Felix Plazo Urban Poor Settlers v. Lipat, G.R. No. 182409
(2017)]

Where not applicable

It does not apply when third parties are involved or those not privy to the written instrument in
question and does not base a claim or assent a right originating in the instrument [Lechugas v.
C.A., G.R. No. L- 39972 & L-40300 (1986)]

b. When Parol Evidence Can Be Introduced

How Parol Evidence Can Be Introduced General rule: Ground/s for presenting parol
evidence is put in issue in a verified pleading [Sec. 10, Rule 130]

Exception: If the facts in the pleadings all lead to the fact that it is being put in issue then the
Parol Evidence exception may apply [Sps. Paras v. Kimwa Corporation, G. R. No. 171601
(2015)]

In sum, two (2) things must be established for parol evidence to be admitted:

1. That the existence of any of the four (4)

exceptions has been put in issue in a party's pleading or has not been objected to by the
adverse party; and

2. That the parol evidence sought to be presented serves to form the basis of the
conclusion proposed by the presenting party. [Sps. Paras v. Kimwa Corporation, G. R.
No. 171601 (2015)]
a. Application of the Evidence Rule

General Rule

Parol

When the terms of an agreement (including wills) have been reduced to writing, it is considered
as containing all the terms agreed upon and there can be, as between the parties and their
successors in interest, no evidence of such terms other than the contents of the written
agreement [Sec. 10, Rule 130]

Page 482 of 525

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When Can Parole Evidence Can Be Introduced

1. Intrinsic ambiguity, mistake or imperfection

in the written agreement

2. Failure of the written agreement to express

the true intent and agreement of the parties

thereto

3. Validity of the written agreement

4. Existence of other terms agreed to by the

parties or their successors-in-interest after the execution of the written agreement.

1. INTRINSIC AMBIGUITY, MISTAKE OR IMPERFECTION IN THE WRITTEN

AGREEMENT

Intrinsic ambiguity (latent)– writing admits of two constructions, both of which are in harmony
with the language used [Ignacio v. Rementeria, 99 Phil. 1054 (Unrep.)]

The document is clear on its face, but matters outside the agreement create the ambiguity (Ex.
“I bequeath this land to my cousin George.” However, the testator has two cousins named
George) [Riano, 161, 2016 Ed.]

Note: American jurisprudence also refers to a situation where an ambiguity partakes of the
nature of both patent and latent ambiguity, that is, an intermediate ambiguity, because the
words of the writing, though seemingly clear and with a settled meaning, is actually equivocal
and admits of two interpretations. Parol evidence, in such a case is admissible to clarify the
ambiguity [2 Regalado 734, 2008 Ed., citing 20 Am. Jur 1011] (Ex. “dollar” may mean USD,
CAD, HKD, etc.)

Mistake refers to mistake of fact which is mutual to the parties [BPI v. Fidelity and Surety, Co.,
G.R. No. L-26743 (1927)]

Imperfection includes an inaccurate statement in the agreement or incompleteness in the

writing, or the presence of inconsistent provisions [2 Regalado 732, 2008 Ed.]

2. FAILURE OF THE WRITTEN AGREEMENT TO EXPRESS THE TRUE INTENT AND

AGREEMENT OF THE PARTIES THERETO

Purpose
To enable court to ascertain the true intention of the parties [Tolentino v. Gonzales Sy Chiam,
G.R. No. 26085 (1927)]

3. VALIDITY OF THE WRITTEN AGREEMENT

Parol evidence may be admitted to show:

1. True consideration of a contract

2. Want/Illegality of consideration
3. Incapacity of parties
4. Fictitious/absolutely simulated contract
5. Fraud in inducement

[2 Regalado 733, 2008 Ed.]

c. Distinction Between the Original Document Rule and Parol Evidence Rule
Original Document
Parol Evidence Rule
Rule
Contemplates the situation wherein the original writing is not available and/or there is a dispute
as to whether said writing is the original

Prohibits the introduction of substitutionary evidence in lieu of the original document regardless
of WON it varies the

Presupposes that the original document is available in court

Prohibits the varying of the terms of a written agreement

contents original

of the
Page 483 of 525

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Applies to all kinds of writings, recordings, photographs, or any material containing letters,
words, sounds, numbers, figures, symbols, or their equivalent, or other modes of written
expression offered as proof of their contents

Can be invoked by any party to an action regardless of WON such party participated in the
writing involved

Applies only to documents contractual in nature and to wills

4.

in force between the Philippines and the country of source

Note: This is a new addition to the original provision.
Public records, kept in the Philippines, of private documents required by law to be entered
therein
Can be invoked only when the controversy is between the parties to the written agreement, their
privies or any party

[Sec. 19, Rule 132]

A public document enjoys the presumption of regularity. It is a prima facie evidence of the truth
of the facts stated therein and a conclusive presumption of its existence and due execution. To
overcome this presumption, there must be clear and convincing evidence [Chua v. Westmont
Bank, G.R. No. 182650 (2012)].

A public document is self-authenticating and requires no further authentication in order to be

presented as evidence in court [Patula v. People, G.R. No. 164457 (2012)]

Private Documents

All other writings are private. [Sec. 20, Rule 130]

A private document is any other writing, deed, or instrument executed by a private person
without the intervention of a notary or other person legally authorized by which some disposition
or agreement is proved or set forth [Patula v. People, G.R. No. 164457 (2012)]

c. When a Private Writing Requires Authentication; Proof of Private Writing

General rule: Before any private document offered as authentic is received in evidence, its due
execution and authenticity must be proved [Sec. 20, Rule 132]

How to Prove Due Execution and Authenticity

1. By anyone who saw the document

executed or written;

directly thereby

affected

[2 Regalado 731, 2008 Ed.]

6. Authentication and Proof of

Documents

a. MeaningofAuthentication

Proving that the objects and documents presented in evidence are genuine and what it purports
to be.

b. Classes of Documents

Public Documents

1. Written official acts or records of the official acts of the sovereign authority, official
bodies and tribunals, and public officers, whether of the Philippines or of a foreign
country
2. Notarial documents (except last wills and testaments)
3. Documents considered public documents under treaties and conventions which are
Page 484 of 525

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2. By evidence of the genuineness of the 2. signature or handwriting of the maker; or

3. By other evidence showing its due execution and authenticity. [Sec. 20, Rule
132] 3.

Before a private document is admitted in 4. evidence, it must be authenticated either by:

1. the person who executed it,

2. the person before whom its execution was

acknowledged,

3. any person who was present and saw it 1.

executed, or

4. who after its execution, saw it and

recognized the signatures, or

5. the person to whom the parties to the

instruments had previously confessed

execution thereof

[Malayan Insurance v. Phil. Nails and Wires

Corp., G.R. No. 138084 (2002)] 2.

If a private writing itself is inserted officially into

a public record, its record, its recordation, or its incorporation into the public record becomes a
public document, but that does not make the 3. private writing itself a public document so as to

when the genuineness and authenticity of the actionable document have not been specifically
denied under oath by the adverse party;

when the genuineness and authenticity of the document have been admitted; or when the
document is not being offered as genuine.

e. GenuinenessofaHandwriting

By any witness who believes it to be the handwriting of such person because:

a. He/she has seen the person write; or b. He/she has seen writing purporting to
be his/hers upon which the witness has acted or been charged, and has thus acquired
knowledge of the handwriting of such person [Sec. 22, Rule 132]

A comparison by the witness or the court of the questioned handwriting, and admitted genuine
specimens thereof or proved to be genuine to the satisfaction of the judge [Sec. 22, Rule 132]

make it admissible without authentication [Republic v Sandiganbayan, G.R. No. 188881 (2014)]

d. When Evidence of Authenticity of a Private Writing is Not Required

The requirement of authentication of a private document is excused only in four instances,
specifically:
1. when the document is an ancient one

which is:

1. More than 30 years old;

2. Produced from a custody in which it

would naturally be found if genuine;

and

3. Unblemished by any alterations or

circumstances of suspicion [Sec. 21, Rule 132]

Expert evidence [Sec. 52, Rule 130]

f. Public Documents as Evidence; Proof of Official Records

Documents consisting of entries in public records made in the performance of a duty by a public
officer are prima facie evidence of the facts therein stated. All other public documents are
evidence, even against a third person, of the fact which gave rise to their execution and of the
date of the latter [Sec. 23, Rule 132]

Proof of official record referred to in Sec. 19(a), Rule 132

1. By an official publication thereof; or

2. By a copy of the document attested by the

officer having legal custody of the record, or his/her deputy

a. If record is not kept in the Philippines:

accompany with a certificate that such officer has the custody

Page 485 of 525

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i. If the foreign country is a contracting party to a treaty or convention to which the

Philippines is also a party, or it is considered a public document under the treaty or
convention: certificate or its equivalent shall be in the form prescribed therein, subject to
reciprocity
 ii. If not a contracting party: certificate made by a secretary of the embassy or legation,
consul general, consul, vice-consul, or consular agent, or any officer in the foreign
service of the Philippines stationed in the country where the record is kept

1. Must be authenticated by the seal of his/her office

The certificate shall not be required when a treaty or convention between a foreign country and
the Philippines has abolished the requirement or has exempted the document itself [Sec 24,
Rule. 132]

Note: Substantial amendment to Sec 24, Rule 132

g. Attestation of a Copy of a Document or Record

1. Must state that the copy is a correct copy of the original or a specific part thereof, as the
case may be
2. Must be under the official seal of the attesting officer, if there be any, or if he/she be the
clerk of a court having a seal, under the seal of such court

[Sec. 25, Rule 132]

h. Public Record of Private

Documents

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]

See Sec. 25, Rule 132

i. Proof of Lack of Record

1. Written statement
1. Signed by an officer having the custody

of an official record or by his/her deputy

2. Must state that after diligent search, no record or entry of a specified tenor is
found to exist in the records of his/her

office

2. Certificate
1. Accompanying the written statement
2. Must state that that such officer has the

custody
[Sec. 28, Rule 132]

j. How a Judicial Record is Impeached

Establish:
1. Want of jurisdiction in the court or judicial

officer;
2. Collusion between the parties; or
3. Fraud in the party offering the record, with

respect to the proceedings [Sec. 29, Rule 132]

k. ProofofNotarialDocuments

Notarial Documents

Every instrument duly acknowledged or proved and certified as provided by law which may be
presented in evidence without further proof, the certificate of acknowledgment being prima facie
evidence of the execution of the instrument or document involved [Sec. 30, Rule 132]

Such notarized documents are evidence, even against 3rd persons, of the facts which gave rise
to their execution and of the date of execution [Sec. 23, Rule 132]
Page 486 of 525

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Note: Last wills and testaments are not public documents [Sec. 19, Rule 132]
l. Alterations in a Document

When Applicable and Whose Burden of Proof

The party producing a document as genuine which has been altered and appears to have been
altered after its execution, in a part material to the question in dispute, must account for the
alteration. If he or she fails to do that, the document shall not be admissible in evidence [Sec.
31, Rule 132]

How to Account for Alteration

Party producing a document as genuine may show that the alteration

1. Was made by another, without his/her

concurrence;

2. Was made with the consent of the parties

affected by it;

3. Was otherwise properly or innocently

made; or

4. Did not change the meaning or language of

the instrument.

[Sec. 31, Rule 132]

m. Documentary Evidence in an Unofficial Language

Not admissible unless accompanied by a translation into English or Filipino. Parties or their
attorneys are directed to have the translation prepared before trial [Sec. 33, Rule 132]

Where such document, not so accompanied with a translation in English or Filipino, is offered in
evidence and not objected to, either by the parties or the court, it must be presumed that the
language in which the document is written is understood by all, and the document is admissible
in evidence. [Heirs of Doronio v. Heirs of Doronio, G.R. No. 169454 (2007)]

1. Qualifications of a Witness
Witness

A witness is one who, being present, personally sees or perceives a thing, a beholder, spectator
or eyewitness. One who testifies to what he has seen or heard, or otherwise observed [Herrera
citing Black’s Law Dictionary]
Qualifications of a Witness

All persons who can perceive, and perceiving, can make known their perception to others, may
be witnesses.

Religious/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. 21, Rule 130]

Basic Qualifications of a Witness

Page 487 of 525

a.

b.
i.

He/she can perceive

i. Corollary to perception is that the

witness must have personal knowledge of the facts surrounding the subject matter of his
testimony [Sec. 22, Rule 130]

He/she can make known his perception This means that he/she must have the ability to
remember and communicate the remembered perception

E. TESTIMONIAL EVIDENCE

c. He/she must take an oath or affirmation [Sec. 1, Rule 132]

d. He/she must not possess any of the disqualifications

A deaf-mute is competent to be a witness so long as he/she has the faculty to make

observations and he/she can make those observations known to others [People v. Aleman y
Longhas, G.R. No. 181539 (2013)]

Parties declared in default are not disqualified from taking the witness stand for non- disqualified
parties. The law does not provide

U.P. LAW BOC EVIDENCE default as an exception [Marcos v. Heirs of

Navarro, G.R. No. 198240 (2013)]

There is no substantive or procedural rule which requires a witness for a party to present some
form of authorization to testify as a witness for the party presenting him or her [AFP Retirement
and Separation Benefits System v. Republic, G.R. No. 188956 (2013)]

When determined

Qualification of a witness is determined at the time the said witness is produced for examination
or at the taking of their depositions.

With respect to children of tender years, competence at the time of the occurrence is also taken
into account.

In case person is convicted of a crime General rule: Not disqualified

The fact that a witness has been convicted of felony is a circumstance to be taken into
consideration as affecting his character and credibility [Enrile, et al. v. Roberto, et al. G.R. No. L-
42309 (1935)]

Exception: Otherwise provided by law, e.g. under Art. 821 of the Civil Code, a person convicted
of any of the following crimes cannot be a witness to a will:

1. Falsification of documents,
2. Perjury; or
3. False testimony

Competency of a Witness

One is qualified to take the witness stand if:

1. He is capable of perceiving at the time of

the occurrence of the fact; and

2. He came make his perception known

[Sec. 20, Rule 130]

Competency has reference to the basic qualifications and the absence of disqualifications of a
witness to testify. [Riano, 185, 2016 Ed.]

Competency Presumed

A person who takes the witness stand is presumed to possess the qualifications of a

REMEDIAL LAW

witness. His competence may be questioned by the other party by interposing an objection.
[Herrera]
Remedy for Errors or Questions on Competence
Appeal, not certiorari, is the proper remedy for the correction of any error as to the competency
of a witness committed by an inferior court in the course of the trial [Icutanim v. Hernandez,
G.R. No. L-1709, June 8, 1948]

Credibility of a Witness

Credibility has nothing to do with the law or the rules. It refers to the weight and trustworthiness
or reliability of the testimony. [Riano, 185, 2016 Ed.]

Questions concerning the credibility of a witness are best addressed to the sound discretion of
the trial court as it is in the best position to observe his demeanor and bodily movements.
[Llanto v. Alzona, 450 SCRA 288 (2005)]

2. Disqualifications of Witnesses
EFFECT OF INTEREST IN THE SUBJECT MATTER
A person is not disqualified by reason of his interest in the subject matter.

Interest only affects credibility, not competency.

EFFECT OF RELATIONSHIP

General rule: Mere relationship does not impair credibility [People v. De Guzman, G.R. 130809
(2000)]
Page 488 of 525

Exception:
To warrant rejection, it must be clearly shown that:
a. T estimony

defective
b. Improper/evil motives had moved the

witness to incriminate falsely

[People v. Daen Jr., G.R. No. 112015 (1995)]

was inherently

improbable or

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Note: Disqualification by reason of mental incapacity or immaturity (previously Sec. 21, Rule
130) and disqualification by reason of death or insanity of adverse party aka Dead Man’s
Statute (previously Sec. 23, Rule 130) have been deleted in the 2019 Revisions.

a. Disqualification by Reason of Marriage

Also known as Marital Disqualification Rule [Alvarez v. Ramirez, G.R. No. 143439 (2005)] or
Spousal Immunity

Elements

Duration
General rule: During their marriage [Sec. 23 Rule 130]

Exception: Where the marital and domestic relations are so strained that there is no more
harmony to be preserved nor peace and tranquility which may be disturbed, the reason based
upon such harmony and tranquility fails. In such a case, identity of interests disappears, and the
consequent danger of perjury based on that identity is non-existent [Alvarez v. Ramirez, G.R.
No. 143439 (2005)]

Scope of Rule

The rule also includes utterance as to facts or mere production of documents. It does not only
prevent disclosure of matters communicated in nuptial confidence but is an absolute prohibition
against the spouse’s testifying to any facts affecting the other however these facts may have
been acquired. [Herrera]

Waiver of Disqualification
If one spouse imputes the commission of a crime against the other, the latter may testify against
the former. [People v. Francisco, G.R. No. L-568 (1947)]

Spouses as Co-Accused

The other cannot be called as an adverse party witness under this Rule

b. Disqualifications by Reason of Privileged Communications; Rule on Third

Parties

Privilege

A privilege is a rule of law that, to protect a particular relationship or interest, either permits a
witness to refrain from giving testimony he otherwise could be compelled to give, or permits
someone usually one of the parties, to prevent the witness from revealing certain information.
[Herrera]

Privilege may only be invoked by the persons protected thereunder. It may also be waived by
the same persons, either impliedly or expressly.
1.

During their marriage

i. The marriage must be valid and

existing at the time of the offer of the

testimony
2. The husband or the wife cannot testify

i. ii.
against the other
The “other” spouse must be a party to the action, either as a plaintiff or defendant
Note: 2019 Revision removed the words “for or”

Without the consent of the affected spouse

3.
[Sec. 23, Rule 130]

Except: Spouse may testify against the other even without the consent of the latter

1. In a civil case by one against the other; or

2. In a criminal case for a crime committed by

one against the other or the latter's direct descendants/ascendants [Sec. 23, Rule 130]

Rationale

1. There is identity of interests between husband and wife;

2. If one were to testify against the other, there is a consequent danger of perjury;
3. Policy of the law is to guard the security and confidence of private life, 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 v. Ramirez, G.R. No. 143439 (2005)]

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Note: this Section was substantially amended in the 2019 Revised Rules

i. Husband and Wife Also known as marital privilege

Rationale

Confidential nature of the privilege; to preserve marital and domestic relations

Elements

1. The husband or the wife

2. During or after the marriage
3. Cannot be examined
4. Without the consent of the other
5. As to any communication received in

confidence by one from the other during

 the marriage

[Sec. 24(a), Rule 130]

Except: Spouse may testify for or against the other even without the consent of the latter

1. In a civil case by one against the other, or

2. 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]

A widow of a victim allegedly murdered may testify as to her husband’s dying declaration as to
how he died since the same was not intended to be confidential [US v. Antipolo, G.R. No. L-
13109 (1918)]

Scope: “Any communication”

Includes utterances, either oral or written, or acts [Herrera]

When not applicable

1. When the communication was not intended to be kept in confidence

2. When the communication was made prior to the marriage
3. Waiver of the privilege

[Herrera]

Waiver

1. Failure of the spouse to object; or

2. Calling spouse as witness on cross

examination

3. Any conduct constructed as implied consent.

[Herrera]

The objection to the competency of the spouse must be made when he or she is first offered as
a witness. The incompetency is waived by failure to make a timely objection to the admission of
spouse’s testimony [People v. Pasensoy, G. R. No. 140634 (2002)]
Marital Disqualification [Sec. 22]
One spouse should be a party to the case;
Applies only if the marriage is existing at the
time the testimony is offered; and
Constitutes a total prohibition on any testimony
against the spouse of the witness
Page 490 of 525
ii. Attorney and Client
Marital Privilege [Sec. 24(a)]
Neither of the spouses need to be a party;
Does not cease even after the marriage is
dissolved; and
Prohibition is limited to testimony on confidential
communications between spouses
Elements
As regards an attorney or any person reasonably believed by the client to be licensed to
engage in the practice of law

1. Without the consent of his client

2. Cannot be examined as to
1. Any communication made by the client to him/her, or
2. His/her advice given thereon in the course of, or with a view to, professional
employment

[Sec 24(b), Rule 130]

As regards an attorney’s secretary, stenographer, clerk, or other persons assisting the

attorney

1. Without the consent of the client and

his/her employer

2. Cannot be examined

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3. Concerning any fact the knowledge of which has been acquired in such capacity

[Sec. 24(b), Rule 130]

Subject-matter of the privilege

1. Communications
2. Observations by the lawyer (regardless of

medium of transmission which may include

oral or written words and actions)

3. T angible evidence delivered to a lawyer

4. Documents entrusted to a lawyer

[Herrera]

Exceptions

1. Furtherance of crime or fraud

1. If the services or advice of the lawyer were sought or obtained
2. T o enable or aid anyone
3. T o commit or plan to commit
 4. What the client knew or reasonably

should have known to be a crime or

fraud [Sec. 24(b)(i), Rule 130]

2. Claimants through same deceased

client

1. As to communication relevant to an issue between parties who

2. Claim through the same deceased client
3. Regardless of whether the claims are by testate, intestate, or inter vivos
transaction [Sec. 24(b)(ii), Rule 130]
3. Breach of duty by lawyer or client

a. As to communications relevant to an issue of breach of duty

i. By the lawyer to his/her client; or ii. By the client to his/her lawyer [Sec.

24(b)(iii), Rule 130]

4. Document attested by the lawyer

1. As to communication relevant to an issue concerning an attested
document
2. The lawyer is an attesting witness [Sec.

24(b)(iv), Rule 130]

5. Joint clients
1. As to a communication relevant to a matter of common interest between
two or more clients
2. The communication was made by any of them to
3. The lawyer retained or consulted in common

d. Communication is offered in an action between any of the clients

e. Neither expressly agreed otherwise [Sec. 24(b)(v), Rule 130]

Identity of Client
General rule: The attorney-client privilege may not be invoked to refuse to divulge the identity
of the client.

Exceptions:
1. When a strong probability exists that

revealing the name would implicate that person in the very same activity for which he sought the
lawyer’s advice;
2. When disclosure would open the client to liability;

3. When the name would furnish the only link that would form the chain of testimony necessary
to convict

[Regala v. Sandiganbayan, G.R. No. 105938 and G.R. No. 108113 (1996)]

Duration of the privilege

In the absence of a statute, the privilege is permanent. It may even be claimed by a client’s
executor or administrator after the client’s death [Herrera]

iii. Physician and Patient

Elements

1. A physician, psychotherapist or person reasonably believed by the patient to be

authorized to practice medicine or psychotherapy

a. Psychotherapist:
i. Person licensed to practice

medicine engaged in the diagnosis or treatment of a mental or emotional condition; or

ii. A person licensed as a psychologist by the government while similarly engaged

2. In a civil case

a. Note: the privilege cannot be claimed in

a criminal case because the interest of the public in a criminal prosecution should be deemed
more important than the secrecy of the communication [Riano, 211, 2016 Ed.]
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3. Without the consent of the patient

4. Cannot be examined as to

e. Where the patient examines the physician as to matters disclosed in a consultation

f. Also check Rule 28 on Physical and Mental Examination [Rules on Civil Procedure]

[Herrera]
Physician allowed to testify as an expert

A doctor is allowed to be an expert witness when he does not disclose anything obtained in the
course of his examination, interview and treatment of a patient. [Lim v. C.A., G.R. No. 91114
(1992)]

Autopsical information

If the information was not acquired by the physician in confidence, he may be allowed to testify
thereto. But if the physician performing the autopsy was also the deceased’s physician, he
cannot be permitted either directly or indirectly to disclose facts that came to his knowledge
while treating the living patient [Herrera, citing US Case Travelers’ Insurance Co. v. Bergeron]

Duration of privilege

The privilege survives the death of the patient. [Riano, 212, 16th Ed.]

Hospital Records during discovery procedure

T o allow the disclosure during discovery procedure of the hospital records would be to allow
access to evidence that is inadmissible without the patient’s consent. Disclosing them would be
the equivalent of compelling the physician to testify on privileged matters he gained while
dealing with the patient, without the latter’s prior consent. [Chan v. Chan, G.R. No. 179786
(2013)]

iv. Priest and Penitent

Elements

1. A minister or priest or person reasonably believed to be so

2. Without the consent of the affected person
3. Cannot be examined as to any
1. communication; or
2. confession made to; or

a.

b.
i.

ii.

Any confidential communication made between the patient and his/her physician or
psychotherapist
For the purpose of diagnosis or treatment
Of the patient’s physical, mental, or emotional condition
Including drug or alcohol addiction

Note: this privilege also applies to persons, including members of the patient’s family, who have
participated in the diagnosis or treatment of the patient under the direction of the physician or
psychotherapist. [Sec. 24(c), Rule 130]

Physician-patient relationship need not be entered into voluntarily.

When not applicable

1. Communication was not given in confidence

 2. Communication was irrelevant to the professional employment
3. Communication was made for an unlawful purpose
4. Communication was intended for the commission/concealment of a crime
5. Communication was intended to be made public/divulged in court
6. When there was a waiver
7. When the doctor was presented as an

expert witness and only hypothetical problems were presented to him [Lim v. C.A., G.R.
No. 91114 (1992)]

Waiver

1. Express waiver – may only be done by the

patient

2. Implied waiver
1. By failing to object
2. When the patient testifies
3. A testator procures an attending doctor

to subscribe his will as an attesting

witness

4. Disclosure of the privileged information

either made or acquiesced by the privilege holder before trial

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c. advice given by him/her

4. in his/her professional character

5. in the course of discipline enjoined by the

church to which the minister or priest

belongs

[Sec. 24(d), Rule 130]

v. Public Officers
Elements

1. A public officer
2. During or after his/her tenure
3. Cannot be examined as to communications

made to him/her in official confidence

4. When the court finds that the public interest

would suffer by the disclosure

[Sec. 24(e), Rule 130]

Elements of “presidential communications privilege”

1. Must relate to a “quintessential and non-

delegable presidential power;”

2. Must be authored or “solicited and

received” by a close advisor of the

President or the President himself; and

3. Privilege may be overcome by a showing of adequate need such that the information
sought “likely contains important evidence” and by the unavailability of the information
elsewhere [Neri v. Senate, G.R. No.

180643 (2008)]

Purpose

The privilege is not intended for the protection of public officers but for the protection of the
public interest. When no public interest would be prejudiced, this privilege cannot be invoked
[Banco Filipino v. Monetary Board, G.R. No. 70054 (1986)).

Rule on Third Parties

The communication shall remain privileged, even in the hands of a third person who may
have obtained the information, provided that the original parties to the communication took
reasonable precaution to protect its confidentiality. [Sec. 24, Rule 130 (last par.)]

Note: This amendment is a stark contrast from the previous rule which removes the privilege

from communication that landed in the hands of third parties.

c. Parental and Filial Privilege Rule

 Art. 315, CC (repealed by
Sec. 25, Rule 130 Art. 215, FC
FC)
No person shall be compelled
to testify against his/her

1. Parents
2. other No descendant shall be No descendant can be
compelled, in a criminal case, to compelled, in a criminal case,
direct ascenda nts testify against his parents and to testify against his parents
grandparent s and ascendants
3. children or
4. other direct

descend ants
Except when such testimony is
indispensabl e in a crime
Except when such testimony
is indispensabl e in a crime 1. 1. against
against that person or
NONE
the descend ant or
2. by one parent against the
other. 2. by one parent

against the other

Page 493 of 525

Applicability

The rule is applied to both civil and criminal cases [Herrera]

The privilege cannot apply between stepmothers and stepchildren because the rule applies only
to direct ascendants and descendants, a family tie connected by a

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common ancestry. [Lee v. C.A., G.R. No. 2. 177861 (2010)]

A child can waive the filial privilege and choose

to testify against his father. The rule refers to a
privilege not to testify, which can be invoked or
waived like other privileges. [People v. 3. Invencion y Soriano, G.R. No. 131636 (2003)]

d. Trade Secrets
General Rule: A person cannot be compelled

to testify about any trade secret

Except: the non-disclosure will conceal fraud or otherwise work injustice

When disclosure is directed, the court shall take protective measures, as required by

1. the interests of the owner of the trade

secret;

2. the interests of the parties; and

3. the furtherance of justice

[Sec. 26, Rule 130] Note: This is a new rule.

OTHER PRIVILEGED COMMUNICATION NOT IN THE RULES OF COURT

1. Newsman’s Privilege

General rule: Publisher, editor or duly accredited reporter of any newspaper, magazine or
periodical of general circulation cannot be compelled to reveal the source of any news-report or
information appearing in said publication which was related in confidence to such publisher,
editor or reporter

Exception: Court or a House/Committee of Congress finds that such revelation is demanded by

security of the State

Note: This is without prejudice to his liability under the civil and criminal laws
[R.A. 53, as amended by R.A. 1477]

Information in Conciliation Proceedings

All information and statements made at conciliation proceedings shall be treated as privileged
communications [Art. 233, Labor Code]

Data Privacy Act

Personal information controllers may invoke the principle of privileged communication over
privileged information that they lawfully control or process. Subject to existing laws and
regulations, any evidence gathered on privileged information is inadmissible [Sec. 15, RA
10173]

Page 494 of 525

4. Food and Drug Administration Act Prohibits the use of a person to his own advantage, or
revealing, other than to the Secretary of Health or officers or employees of the Department of
Health or to the courts when relevant in any judicial proceeding under this Act, any information
acquired under authority Board of Food Inspection and Board of Food and Drug, or concerning
any method or process which as a trade secret is entitled to protection [Secs. 9, 11 (f) and 12,
RA 3720]
3. Examination of a Witness
Shall be done

1. in open court, and

2. under oath or affirmation.

Answers shall be given orally, unless the

1. witness is incapacitated to speak, or

2. question calls for a different mode of

answer

[Sec. 1, Rule 132]

Proceedings to be recorded, including

1. the questions propounded to a witness and

his answers thereto

2. the statements made by the judge or any of

the parties, counsel, or witnesses with

reference to the case

by means of shorthand or stenotype or by other means of recording found suitable by the court
[Sec. 2, Rule 132]

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Transcript deemed prima facie correct

A transcript of the record of the proceedings made by the official stenographer, stenotypist or
recorder and certified as correct by him shall be deemed prima facie a correct statement of such
proceedings [Sec. 2, Rule 132]

Exclusion and separation of witnesses

The court, motu proprio or upon motion, shall order witnesses excluded so that they cannot hear
the testimony of other witnesses

However, this rule does NOT AUTHORIZE exclusion of:

1. a party who is a natural person;

2. a duly designated representative of a
 juridical entity which is a party to the case;

3. a person whose presence is essential to

the presentation of the party’s cause; or

4. a person authorized by a statute to be

present.

The court may also cause witnesses to be kept separate and to be prevented from conversing
with one another, directly or through intermediaries, until all shall have been examined. [Sec.
15]

a. Rights and Obligations of a Witness

RIGHTS

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. To only be examined as to matters pertinent to the issue;
4. Not to give an answer which will tend to subject him/her to a penalty for an offense

a. Unless: otherwise provided by law

Example of this right: Sec. 8, R.A. 1379 and other immunity statutes which grant the witness
immunity from criminal prosecution for offenses admitted

5. Not to give an answer which will tend to degrade his/her reputation

a. Exceptions:

i. the answer is the very fact in issue; ii. the answer is a fact from which the

fact in issue would be presumed

b. Exception to the exception: he/she must answer to the fact of his/her

previous final conviction for an offense [Sec. 3, Rule 132]

OBLIGATION

A witness must answer questions, although his/her answer may tend to establish a claim
against him/her. [Sec. 3, Rule 132]

One-Day Examination of Witness Rule

A witness has to be fully examined in one (1) day only. It shall be strictly adhered to subject to
the courts' discretion during trial on whether or not to extend the direct and/or cross-
examination for justifiable reasons. [A.M. No. 03-1-09-SC]
b. Order in the Examination of an Individual Witness

1. Direct examination by the proponent;

2. Cross-examination by the opponent;
3. Re-direct examination by the proponent;
4. Re-cross examination by the opponent.

[Sec. 4, Rule 132]

Direct examination — examination-in-chief of a witness by the party presenting him/her on the

facts relevant to the issue [Sec. 5, Rule 132]

Cross-examination — the witness may be cross examined by the adverse party on any
relevant matter with sufficient fullness and freedom

• Purpose: to test the witness’ accuracy, truthfulness and freedom from interest or bias, or the
reverse; and to elicit all important facts bearing upon the issue [Sec. 6, Rule 132]

Right to cross-examination

Cross-examination is the most reliable and effective way known of testing the credibility and
accuracy of testimony. This is an essential element of due process. [Herrera, citing Alford v. US
(1931)]
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The right to cross-examine under the constitution is superior to technical rules on evidence.
[Herrera, citing People v. Valero, G.R. No. L-45283-84 (1982)]

Effect of denial of right to cross-examine

Most courts require that the testimony given on direct examination be stricken off – provided the
unavailability of the witness is through no fault of the party seeking to cross-examine. [Herrera]

Cross-examination must be completed or finished. When cross-examination is not and cannot

be done or completed due to causes attributable to the party offering the witness, the
uncompleted testimony is thereby rendered incompetent. [Herrera, citing Ortigas, Jr. v.
Lufthansa German Airlines, G.R. No. L-28773 (1975)]

Re-direct examination—re-examination of the witness by the party calling him/her

 Purpose: to explain or supplement his/her

answers given during the cross-

examination

 Questions on matters not dealt with during

the cross-examination may be allowed by the court in its discretion. [Sec. 7, Rule 132]

Re-cross-examination — re-cross- examination of the witness by the adverse party on

matters stated in his/her re-direct and on other matters allowed by the court in its
discretion [Sec. 8, Rule 132]

Recalling the witness

After examination by both sides has been concluded, the witness cannot be recalled
without leave of court. [Sec. 9, Rule 132]

Why conducted

1. Particularly identified material points were not covered in cross-examination

2. Particularly described vital documents were not presented to the witness
3. Cross-examination was conducted in so inept a manner as to result in a virtual
absence thereof

[People v. Rivera, G.R. No. 98376 (1991)]

c. Leading Questions

and Misleading

Leading question: A question which suggests to the witness the answer which the examining
party desires

General rule: Not allowed

Except:
 1. On cross examination;
2. On preliminary matters;
3. When there is difficulty in getting direct and

intelligible answers from a witness who is ignorant, or a child of tender years, or is of

feeble mind, or a deaf-mute;

4. Of an unwilling or hostile witness; or

5. Of a witness who is an adverse party or an officer, director, or managing agent of a
public or private corporation or of a partnership or association which is an

adverse party

[Sec. 10, Rule 132]

Misleading question: One which assumes as true a fact not yet testified to by the witness, or
contrary to that which he/she has previously stated. It is not allowed. [Sec. 10, Rule 132]

d. ImpeachmentofWitness i. Adverse party’s witness

1. By contradictory evidence;
2. By evidence that his/her general reputation

for truth, honesty or integrity is bad;

3. By evidence that he/she has made at other times statements inconsistent with his

present testimony

But NOT by evidence of particular wrongful acts, EXCEPT that it may be shown by the
examination of the witness, or the record of the judgment, that he/she has been convicted of an
offense.

[Sec. 11, Rule 132]

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ii. By evidence of conviction of crime

a. By evidence that he/she has been convicted by final judgment of a crime:

i. Punishable by a penalty in excess of one year; or

iv. How the witness is impeached by evidence of inconsistent statements

a. The statements must be related to him/her, with the circumstances of the times and places
and the persons present, and

b. He/she must be asked whether he/she made such statements, and if so, allowed to explain
them.

c. If the statements be in writing, they must be shown to the witness before any question is put
to him/her concerning them

[Sec. 14, Rule 132]

e. Referral of Witness to

Memorandum

When witness may refer to memorandum

1. A witness may be allowed to refresh

his/her memory respecting a fact

1. by anything written or recorded

2. by himself/herself or under his/her

direction

3. at the time when the fact occurred, or

immediately thereafter, or at any other time when the fact was fresh in his/her
memory and

4. he/she knew that the same was correctly written or recorded

5. the writing or record must be produced and may be inspected by the adverse
party, who may, if he/she chooses, cross-examine the witness upon it, and may
read it in evidence.
2. A witness may also testify from such a writing or record, though he/she retain no
recollection of the particular facts, if he/she is able to swear that the writing or record
correctly stated the transaction when made; but such evidence must be received with
caution.

[Sec. 16, Rule 132]

When part of transaction, writing or record given in evidence, the remainder admissible.
a. When part of an act, declaration,

conversation, writing or record is given in evidence by one party, the whole of the

ii. Involving moral regardless of penalty

turpitude,

HOWEVER, evidence of conviction is not admissible if the conviction has been subject of an
amnesty or annulment of the conviction. [Sec. 12, Rule 132]

Note: This is a new rule.

iii. Own witness

Party may not impeach his own witness EXCEPT with respect to

1. An unwilling or hostile witness; or

 2. A witness who is an adverse party or an

officer, director, or managing agent of a public or private corporation or of a partnership

or association which is an adverse party

When witness considered unwilling or hostile

Only if so declared by the court upon adequate showing of his/her

1. adverse interest
2. unjustified reluctance to testify, or
3. having misled the party into calling him/her

to the witness stand

How impeached: The unwilling or hostile witness so declared, or the witness who is an adverse
party, may be impeached by the party presenting him/her in all respects as if he/she had been
called by the adverse party, except by evidence of his bad character. He/she may also be
impeached and cross-examined by the adverse party, but such cross- examination must only be
on the subject matter of his examination-in-chief.

[Sec. 13, Rule 132]

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same subject may be inquired into by the

other
b. 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]

Right to inspect writing shown to witness

Whenever a writing is shown to a witness, it may be inspected by the adverse party [Sec. 18,
Rule 132]

Exception: the court shall conduct a competency examination of a child, motu proprio or on
motion of a party when it finds that substantial doubt exists regarding the child’s ability to:

1. Perceive
2. Remember
3. Communicate
4. Distinguish from falsehood, or
5. Appreciate the duty to tell the truth in court

[Sec. 6]

Proof of necessity

The party seeking a competency examination must present proof of its necessity. The age of
the child, by itself, is not a sufficient basis. [Sec. 6(a)]

Burden of proof lies with the party challenging the child’s competence. [Sec. 6(b)]

Conduct of examination

1. Conducted only by the judge

2. Counsel for the parties may submit

questions to the judge

a. It is discretionary upon the judge if he

will ask the child the submitted questions [Sec. 6(d)]

Developmentally appropriate questions

The questions asked shall:

1. be appropriate to the age and

developmental level of the child;

2. not be related to the issues at trial; and

3. focus on the ability of the child to

remember, communicate, distinguish between truth and falsehood, and appreciate the
duty to testify truthfully. [Sec. 69(d)]

Continuing duty to assess competence

The court has the duty of continuously assessing the competence of the child throughout his
testimony [Sec. 6(f)]

iv. Examination of a child witness

Done in open court General Rule: Given orally

f.
i.

Examination of a child witness (A.M. No. 004-07-SC)

Applicability of the rule

Unless otherwise provided, this rule shall govern the examination of a child witness who are:

1. victims of a crime;
2. accused of a crime; and
3. witnesses to a crime
Where applicable: all criminal and non-criminal proceedings involving child witnesses [Sec. 1,
Rule on Examination of a Child Witness]

ii. Meaning of “child witness"

Child witness—any person who at the time of giving testimony is:

1. below the age of 18 years; or

2. in child abuse cases, may be over 18 but is

found by the court unable to fully take care of himself or protect himself from abuse,
neglect, cruelty, exploitation, or discrimination because of a physical or mental disability
or condition

[Sec. 4 (a), Rule on Examination of a Child Witness]

iii. Competency of a child witness

General Rule: Every child is presumed qualified to be a witness.

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Exception: If the witness is incapacitated to speak or the question calls for a different mode of
answer
[Sec. 8]

v. Live-link TV testimony of a child witness

The prosecutor, counsel or guardian ad litem may apply for an order that the testimony of the
child be taken in a room outside the courtroom and be televised to the courtroom by live-link
television.

Prerequisite for applying: the guardian ad litem shall consult the prosecutor or counsel and
defer to their judgment regarding the necessity of applying for an order.

If the guardian is convinced that the decision of the prosecutor or counsel not to apply will cause
the child serious emotional trauma, he himself may apply for the order. [Sec. 25(a)]

When applied for: at least 5 days before the trial date UNLESS the court finds on the record
that the need for such an order was not reasonably foreseeable [Sec. 25(a)]

The court shall issue an order granting or denying the use of live-link television and stating the
reasons therefor. [Sec. 25(e)]
When granted: if there is a substantial likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel or the prosecutor

a. the trauma must be of a kind which would impair the completeness or truthfulness of the
testimony of the child [Sec. 25(f)]

The testimony of the child shall be preserved on videotape, digital disc, or other similar devices
which shall be made part of the court record and shall be subject to a protective order as
provided in Sec. 31(b). [Sec. 25(h)]

vi. Videotaped deposition of a child witness

The prosecutor, counsel or guardian ad litem may apply for an order that a deposition be taken
of the testimony of the child and that it be recorded and preserved on videotape.

Prerequisite for applying: Same as application for live-link TV testimony in Sec. 25(a)

When granted: If the court finds that the child will not be able to testify in open court at trial

The judge shall preside at the videotaped deposition of the child.

Objection to deposition testimony or evidence, or parts thereof, and the grounds of objection
shall be stated and ruled upon at the time of the taking of the deposition.

Who else is allowed in the proceeding:

a. prosecutor
b. defense counsel
c. guardian ad litem
d. accused, subject to subsection (e)

1. if there is evidence that the child is unable to testify in the physical presence of the accused,
the court may direct the latter to be excluded from the room where the deposition is conducted

2. in case of exclusion of the accused, the court shall order the testimony of the child to be
taken by live-link TV in accordance with Sec. 25

3. it is not necessary for the child to be able to view an image of the accused

e. other persons whose presence is determined by the court to be necessary for the welfare and
well-being of the child

f. one or both of his support persons, the facilitator and interpreter, if any

g. court stenographer; and

h. persons necessary to operate the

videotape equipment [Sec. 27(c)]

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Rights of the accused during trial, especially v. the right to counsel and confront and cross-
examine the child, shall NOT BE VIOLATED
during the deposition. vi.

If, at the time of the trial, the court finds that the
child is unable to testify for a reason stated in vii. Sec. 25(f) of this Rule or is unavailable for any
reason described in Rule 23, Sec 4(c) of the viii. 1997 Rules of Civil Procedure, the court may
admit into evidence the videotaped deposition
of the child in lieu of his testimony at the trial.
[Sec. 27]

timing of the statement and the relationship between the declarant child and witness cross-
examination could not show the lack of knowledge of the declarant child

possibility of faulty recollection of the declarant child is remote

the circumstances surrounding the statement are such that there is no reason to suppose the
declarant child misrepresented the involvement of the accused [Sec. 28(b)]

vii. Hearsay exception in child abuse cases

Applicability: Any criminal and non-criminal proceeding

A statement made by a child describing any act or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be admitted in evidence subject to the following rules:

1. Before the hearsay statement may be admitted, its proponent shall make known to the
adverse party the intention to offer such statement and its particulars
1. Reason: to provide him a fair opportunity to object
2. if the child is available: the court shall, upon motion of the adverse party, require
the child to be present at the presentation of the hearsay statement for cross-
examination
3. if the child is unavailable: the fact of unavailability must be proved by the
opponent [Sec. 28(a)]
2. The court shall consider the time, content and circumstances of the hearsay statement
which provide sufficient indicia of reliability

When a child is considered unavailable:

a. He/she is deceased, suffers from mental infirmity, lack of memory, mental illness, or will be
exposed to severe psychological injury; or

b. He/she is absent from the hearing and the proponent of his statement has been unable to
procure his attendance by process or other reasonable means [Sec. 28(c)]

Condition for admissibility if child is unavailable: His/her hearsay testimony must be

corroborated by other admissible evidence [Sec. 28(d)]

viii. Sexual abuse shield rule

General Rule: The following evidence is inadmissible in any criminal proceeding involving
alleged child sexual abuse:
1. Evidence offered to prove that the alleged

victim engaged in other sexual behavior;

and
2. Evidence to prove the sexual

predisposition of the alleged victim Exception: Evidence of specific instances of

sexual behavior by the alleged victim to prove that a person other than the accused was the
source of the semen, injury, or other physical evidence shall be ADMISSIBLE

a.
i.

ii. iii.

iv.
factors to consider: motive to lie

general character of declarant child whether more than one person heard the statement
whether the statement was spontaneous

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Requirements for party intending to offer such evidence:

1. Written motion filed at least 15 days before

trial, specifically describing the evidence and stating the purpose for which it is offered
a. Exception: if the court, for good cause,

requires a different time for filing or

permits filing during trial

2. Motion served on all parties and the

guardian ad litem at least 3 days before the hearing of the motion

Hearing necessary

Before admitting such evidence, the court must conduct a hearing in chambers and afford the
child, his/her guardian ad litem, the parties, and their counsel a right to attend and be heard.

The motion and the record of the hearing must be sealed and remain under seal and protected
by a protective order.

The child shall not be required to testify at the hearing in chambers EXCEPT if he consents.
[Sec. 30]

ix. Protective orders

Coverage: Any videotape or audiotape of a

child that is part of the court record

Provisions of the order:

1. Tapes may be viewed only by the parties, their counsel, their expert witnesses, and the
guardian ad litem
2. No tape, or any portion thereof, shall be divulged by any person mentioned in Sec. 31(a)
to any other person, except as necessary for the trial
a. Persons in Sec. 31(a): members of the court staff for administrative use, the prosecuting
attorney, defense counsel, guardian ad litem, agents of investigating law enforcement agencies,
and other persons as determined by the court

3. No person shall be granted access to the tape, its transcript, or any part thereof, UNLESS:

a. he signs a written affirmation that he has received and read a copy of the protective order;

b. he submits to the jurisdiction of the court with respect to the protective order; and

c. in case of violation, he will be subject to the contempt power of the court

4. Each of the cassette tapes and transcripts thereof made available to the parties, their
counsel, and their respective agents shall bear the following cautionary notice:

a. “This object or document and the contents thereof are subject to a protective order issued by
the court in (case title), (case number). They shall not be examined, inspected, read, viewed, or
copied by any person, or disclosed to any person, except as provided in the protective order. No
additional copies of the tape or any of its portion shall be made, given, sold, or shown to any
person without prior court order. Any person violating such protective order is subject to the
contempt power of the court and other penalties prescribed by law.”

5. No tape shall be given, loaned, sold, or shown to any person EXCEPT as ordered by the
court

6. Within 30 days from receipt, all copies of the tape and any transcripts thereof shall be
returned to the clerk of court for safekeeping UNLESS the period is extended by the court on
motion of a party

7. This protective order shall remain in full force and effect until further order of the court. [Sec.
31(b)]

Additional protective order

The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or
the guardian ad litem, issue additional orders to protect the privacy of the child. [Sec. 31(c)]
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4. Admissions and Confessions

a. AdmissionbyaParty

Elements
 1. The act, declaration or omission
2. Of a party
3. As to a relevant fact
4. Against his or her interest

[Sec. 27, Rule 130]

5. Made out of court

(Those made in court are governed by Sec.

4, Rule 129.) [2 Regalado 754, 2008 Ed.]

6. Offered and presented in court in an

admissible manner (e.g. non-hearsay)

EXTRAJUDICIAL ADMISSIONS

Any statement of fact made by a party against his interest or unfavorable to the conclusion for
which he contends or is inconsistent with the facts alleged by him. [2 Regalado 754, 2008 Ed.,
citing 31 C.J.S. 1022]

A statement by the accused, direct or implied, of facts pertinent to the issue, and tending in
connection with proof of other facts, to prove his guilt. [People v. Lorenzo, G.R. No. 110107
(1995)]

Requisites for Admissibility

1. They must involve matters of fact;

2. They must be categorical and definite;
3. They must be knowingly and voluntarily

made; and

4. Is adverse to admitter’s interests

[2 Regalado 754, 2008 Ed.]

Effect of an Admission

It may be given in evidence against the admitter. [Sec. 27, Rule 130]

Flight from justice is an admission by conduct and circumstantial evidence of consciousness of

guilt. [US v. Sarikala, G.R. No. L-12988 (1918)]

Rationale
No man would make any declaration against himself unless it is true. [Republic v. Bautista, G.R.
No. 169801 (2007)]

Judicial and Extrajudicial Admissions

Judicial Extrajudicial
Made in connection with a judicial
proceeding in which it is offered [Sec. 4, Any other admission [Secs. 27 and 33, Rule 130]
Rule 129]
Must still be formally offered in evidence (Note the
Does not require proof [Sec. 4, Rule 129] language of Sec. 27, Rule 130: “may be given in
evidence”)
May be conclusive unless contradicted
Rebuttable
[Sec. 4, Rule 129]
May be written, oral express or implied [Sec. 4, Rule 129; Sec. 27, Rule 130]

b. Res Inter Alios Acta Rule

“Res inter alios acta alteri nocere non debet”— Things done between strangers ought not to
injure those who are not parties to them [Black’s Law Dictionary]

Two Branches
1. First branch: Admission by a third party

[Sec. 29, Rule 130]

2. Second branch: Similar acts as evidence
[Sec. 35, Rule 130]
[2 Regalado 758, 774, 2008 Ed.]

c. AdmissionbyaThirdParty

General rule: The rights of a party cannot be prejudiced by an act, declaration, or omission of
another [Sec. 29, Rule 130]

Admission by a third party is inadmissible as against another. The act, declaration or omission
of another is generally irrelevant, and that in justice, a person should not be bound by the acts
of mere unauthorized strangers.

The rule is well-settled that a party is not bound by any agreement of which he has no
knowledge and to which he has not given his consent and that his rights cannot be

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prejudiced by the declaration, act or omission of another, except by virtue of a particular

relation between them.

Exceptions:

1. Partner’s or Agent’s Admission [Sec. 30,

Rule 130]

2. Admission by conspirator [Sec. 31, Rule

 130]

3. Admission by privies [Sec. 32, Rule 130]

Basis of exception

A third party may be so united in interest with the party-opponent that the other person’s
admissions may be receivable against the party himself. The term “privy” is the orthodox
catchword for the relation.

Note: the res inter alios acta rule only applies to extrajudicial declarations (admissions and
confessions). However, when the declarant repeats his extrajudicial declaration in open court
and his co-accused are given the opportunity to cross-examine him, the declaration becomes
admissible against the co-accused.

d. AdmissionbyaCo-Partneror Agent

Requisites for Admissibility

1. The act or declaration

2. Of a partner or agent

a. authorized by the party to make a statement concerning the subject; or

b. within the scope of his/her authority

3. During the existence of the partnership or

agency,

4. May be given in evidence against such

party

5. After the partnership or agency is shown by

evidence other than such act or declaration

(evidence aliunde)

[Sec. 30, Rule 130]

This rule also applies to the act or declaration of a joint owner, joint debtor, or other persons
jointly interested with the party [Sec. 30, Rule 130]

Statements made after partnership is dissolved

As a rule, statements made after the partnership has been dissolved do not fall within the
exception, but 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-partners in said winding up [2 Regalado 759, 2008 Ed.]

Joint interests

1. The joint interest must be first made to appear by evidence other than the admission itself

2. The admission must relate to the subject- matter of joint interest [Herrera]

The word “joint” must be construed according to its meaning in the common law system, that is,
in solidum for the whole. [Jaucian v. Querol, G.R. No. L-11307 (1918)]

A mere community of interests between several persons is not sufficient to make the
admissions of one admissible against all. [Herrera]

Just like in partnership and agency, the interest must be a subsisting one unless for the
admission to be admissible. [Herrera]

e. AdmissionbyaConspirator

Requisites for Admissibility

1. The act or declaration

2. Of a conspirator
3. In furtherance of the conspiracy and during

its existence,
4. May be given in evidence against the co-

conspirator
5. After the conspiracy is shown by evidence

other than such act or declaration

(evidence aliunde) [Sec. 31, Rule 130]

An exception to the res inter alios acta rule is an admission made by a conspirator under Sec.
30, Rule 130. [People v. Cachuela, G.R. No. 191752 (2013)]
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Existence of the conspiracy may be inferred from acts of the accused [People v. Belen, G.R.
No. L-13895 (1963)).

Applies only to extra-judicial statements, not to testimony given on the stand [People v.
Serrano, G.R. No. L-7973 (1959)] or at trial where the party adversely affected has the
opportunity to cross-examine. [People v. Palijon, G.R. No. 123545 (2000]
As regards extrajudicial admissions AFTER termination of conspiracy, BEFORE trial

General rule: Not admissible [People v. Badilla, G.R. No. 23792 (1926); People v. Yatco, G.R.
No. L-9181 (1955)]

Exceptions:

1. Made in the presence of the co-conspirator

who expressly/impliedly agreed (tacit

admission)

2. Facts in admission are confirmed in the

independent extrajudicial confessions made by the co-conspirators after apprehension

[People v. Badilla, G.R. No. 23792 (1926)]

3. As a circumstance to determine credibility of a witness [People v. Narciso, G.R. No. L-

24484 (1968)]
4. Circumstantial evidence to show the probability of the latter’s participation

[2 Regalado 761, 2008 Ed.]

Doctrine of interlocking confessions

Extrajudicial statements of co-accused may be taken as circumstantial evidence against the

person implicated to show the probability of the latter’s actual participation, provided that
the statements are made by several accused are:

1. Made without collusion

2. Identical with each other in their essential

details;

3. Corroborated by other evidence on record

[People v. Molleda, G.R. No. L-34248 (1978), People v. Tuniaco, G.R. No. 185710 (2010)]

Note: Interlocking confessions may also be used as evidence aliunde to prove conspiracy

Applicable to extrajudicial statements

The evidence adduced in court by the conspirators as witnesses are not declarations of
conspirators, but direct testimony to the acts to which they testify. This is applicable only when it
is sought to introduce extrajudicial declarations and statements of the co- conspirators [Herrera,
citing People v. Vizcarra, G.R. No. L-38859 (1982)]

f. Admission by Privies
Privies

Persons who are partakers or have an interest in any action or thing, or any relation to another
[Riano 262, 2016 Ed., citing Black’s Law Dictionary]

It denotes the idea of succession, not only by right of heirship and testamentary legacy, but also
that of succession by singular title, derived from acts inter vivos, and for special purposes.
(example: assignee of a credit and one subrogated to it are privies.) [Alpuerto v. Perez Pastor
and Roa, G.R. No. L-12794 (1918)]

Requisites for Admissibility

1. One derives title to property from another

2. The act, declaration, or omission
1. of the latter (the person from whom title is derived)
2. while holding the title
3. in relation to the property
3. is evidence against the former (one who

derives title from another)

[Sec. 32, Rule 130]

g. AdmissionbySilence

An act or declaration made in the presence and within the hearing or observation of a party who
does or says nothing when the act or declaration is such as naturally to call for action or
comment if not true, and when proper and possible for him/her to do so, may be given in
evidence against him/her. [Sec. 33, Rule 130]

Requisites: When silence is deemed an admission

1. Person heard or understood the statement;

2. That he was at a liberty to make a denial;
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3. That the statement was about a matter affecting his rights or in which he was interested
and which naturally calls for a response;
4. That the facts were within his knowledge; and
5. That the fact admitted from his silence is material to the issue

[People v. Paragsa, G.R. No. L-44060 (1978)]

This rule applies even when a person was surprised in the act [US v. Bay, G.R. No. 9341
(1914)] or even if he was already in the custody of the police [People v. Ancheta, G.R. No.
143935 (2004)]

When not applicable

1. Statements adverse to the party were made in the course of an official investigation
[U.S. v. De la Cruz, G.R. No. 4740 (1908)], as where he was pointed out in the course of
a custodial investigation and was neither asked to reply nor comment on such
imputations [People v. Alegre, G.R. No. L-30423 (1979)]
2. Party had justifiable reason to remain silent, e.g. acting on advice of counsel

[2 Regalado 763, 2008 Ed.]

Failure to file a comment

Respondent’s failure to file a comment despite all the opportunities afforded him constituted a
waiver of his right to defend himself. In the natural order of things, a man would resist an
unfounded claim or imputation against him. It is generally contrary to human nature to remain
silent and say nothing in the face of false accusations. As such, respondents' silence may be
construed as an implied admission and acknowledgement of the veracity of the allegations
against him [OCA v. Amor, A.M. No. RTJ-08-2140 (2014)]

h. Confessions

The declaration of an accused acknowledging his/her guilt of the offense charged, or of any
offense necessarily included therein, may be given in evidence against him/her. [Sec. 34, Rule
130]

An acknowledgment in express words or terms, by a party in a criminal case, of his guilt of the
crime charged. [People v. Lorenzo, G.R. No. 110107 (1995)]

Requisites

1. Express and categorical acknowledgement of guilt [U.S. v. Corrales, G.R. No. 9230 (1914)]

2. Facts admitted constitutes a criminal offense [U.S. v. Flores, G.R. No. 9014 (1913)]

3. Given voluntarily [People v Nishishima, G.R. No. 35122 (1932)]

4. Intelligently made [Bilaan v Cusi, G.R. No. L-18179 (1962)], realizing the importance or legal
significance of the act [U.S. v. Agatea, G.R. No. 15177 (1919)]

5. No violation of Secs. 12 and 17, Art. III of the Constitution

[2 Regalado 765, 2008 Ed.]

If the accused admits having committed the act in question but alleges a justification therefore,
the same is merely an admission. [Ladiana v. People, G.R. No. 144293 (2002)]
Any confession, including a re-enactment, without admonition of the right to silence and to
counsel, and without counsel chosen by the accused is inadmissible in evidence. [People v. Yip
Wai Ming, G.R. No. 120959 (1996)]

[T]he basic test for the validity of a confession is – was it voluntarily and freely made. The term
"voluntary" means that the accused speaks of his free will and accord, without inducement of
any kind, and with a full and complete knowledge of the nature and consequences of the
confession, and when the speaking is so free from influences affecting the will of the accused,
at the time the confession was made, that it renders it admissible in evidence against him.
Plainly, the admissibility of a confession in evidence hinges on its voluntariness [People v.
Satorre, G.R. No. 133858 (2003)]

An extrajudicial confession may be given in evidence against the confessant but not against his
co-accused (since) they are deprived of the opportunity to cross-examine
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him. A judicial confession is admissible against the declarant’s co-accused since the latter
are afforded the opportunity to cross- examine the former. [People v. Palijon, G.R. No. 123545
(2000), cited in People v. Janjalani, G.R. No. 188314 (2011)]

Effect of Extrajudicial Confession of Guilt General rule: An extrajudicial confession made by

an accused, shall not be a sufficient ground for conviction
Exception: When corroborated by evidence of corpus delicti
[Sec. 3, Rule 133]

Corpus Delicti

Substance of the crime; the fact that a crime has actually been committed [People v. De Leon,
G.R. No. 180762 (2009)]

As Distinguished from Admissions of a Party

i. Similar Acts as Evidence

General rule: Evidence that one did or did not do a certain thing at one time is not admissible to
prove that he/she did or did not do the same or similar thing at another time

Exceptions: Said evidence may be received to prove a:

1. specific intent or knowledge

2. identity
3. plan, system, or scheme
4. habit
5. custom or usage and the like

[Sec. 35, Rule 130]

2nd Branch of res inter alios acta rule [2 Regalado 774, 2008 Ed.]

Reason for General Rule

The lone fact that a person committed the same or similar act at some prior time affords, as a
general rule, no logical guaranty that he committed the act in question. A man’s mind and even
his modes of life may change; and objectively, the conditions which he may find himself at a
given time make likewise change and induce him to act a different way [Herrera, citing Moran]

j. Admissibility of Offers of compromise

In civil cases

An offer of compromise is not an admission of any liability and is not admissible in evidence
against the offeror

General rule: Evidence of conduct or statements made in compromise negotiations are also not
admissible

Exceptions: Evidence otherwise discoverable or offered for another purpose such as

1. proving bias or prejudice of a witness;

2. negativing a contention of undue delay; or
3. proving an effort to obstruct a criminal
 investigation or prosecution

In criminal cases

Admission of a Party Confession

A statement of fact [2 Regalado 754, 2008 Acknowledgment of guilt or liability [2 Regalado 754, 2008
Ed.] Ed.]

Maybe express or tacit [2 Regalado 754, 2008 Ed.]

Acts, declarations or omissions [Sec. 26, Rule 130]

Must be express [2 Regalado 754, 2008 Ed.]

Maybe made by 3rd parties, and in certain Can be made only by the party himself, and admissible
cases, admissible against a party [2 Regalado against his co-accused in some instances [2 Regalado
754, 2008 Ed.] 754, 2008 Ed.]

Declarations 34, Rule 130]

[Sec.

May be in any proceeding

Criminal case (Sec. 34, Rule 130 refers to
(Sec. 27, Rule 130 refers to a party without distinction as to “accused”)
nature of proceeding)

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General rule: An offer of compromise by the accused may be received as an implied admission
of guilt

Exception: In cases involving quasi-offenses (criminal negligence) or those allowed by the law
to be compromised

Pleas of guilty

Not admissible against the accused who made the plea or offer:

1. Plea of guilty later withdrawn;

2. Unaccepted offer of a plea of guilty to a

lesser offense; or

3. Statement made in the course of plea

bargaining with the prosecution which does not result in a plea of guilty or which results
in a plea of guilty later withdrawn

Offer to pay medical, hospital or other expenses

Offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is
not admissible in evidence as proof of civil or criminal liability for the injury

[Sec. 28, Rule 130]

5. Hearsay Rule
Note: Provisions on hearsay were substantially changed in the 2019 Amended Rules.

a. MeaningofHearsay

Hearsay is a statement other than the one made by the declarant while testifying at a trial or
hearing, offered to prove the truth of the facts asserted therein

Statement—oral or written assertion OR non- verbal conduct of a person if it is intended by

him/her as an assertion [Sec. 39, Rule 130]

Elements

1. Declarant is out of court

2. Out of court declaration is offered as proof

of its contents

3. Absence of opportunity for cross-

 examination

General Rule on Hearsay

A witness can testify only as to those facts which he/she knows of his personal knowledge, that
is, which are derived from his/her own perception [Sec. 22, Rule 130]

If a party does not object to hearsay evidence, the same is admissible, as a party can waive his
right to cross-examine [People v. Ola, G.R. No. L-47147 (1987)]

Repeated failure to cross-examine is an implied waiver [Savory Luncheonette v. Lakas ng

Manggagawang Pilipino, G.R. No. L-38964 (1975)]

When a statement is NOT hearsay:

1. If the declarant testifies at the trial or hearing and is subject to cross- examination concerning
the statement; and

2. The statement is:

1. Inconsistent with the declarant’s

testimony and was given under oath subject to the penalty of perjury at a trial, hearing,
or other proceeding, or in a deposition

2. Consistent with the declarant’s testimony and is offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence or motive
3. Identification of a person made after perceiving him/her

[Sec. 37, Rule 130]

b. Reason for Exclusion of

Hearsay Evidence

The underlying rule against hearsay are serious concerns about the worth (trustworthiness,
reliability) of hearsay evidence. Because such evidence:

1. was not given under oath or solemn affirmation; and

2. was not subject to cross-examination by opposing counsel to test the perception,
memory, veracity and articulateness of out- of-court declarant or actor upon whose
reliability on which the worth of the out-of- court testimony depends
[Herrera] Page 507 of 525

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Hearsay evidence is excluded precisely because the party against whom it is presented is
deprived of or is bereft of opportunity to cross-examine the persons to whom the statements
or writings are attributed [Philippines Free Press v. C.A., G.R. No. 132864 (2005)]

c. ExceptionstotheHearsayRule
 1. Dying declaration
2. Statement of decedent or person of

unsound mind

3. Declaration against interest

4. Act or declaration about pedigree
5. Family reputation or tradition regarding

pedigree

6. Common reputation
7. Part of the res gestae
8. Records of regularly conducted business

activity

9. Entries in official records

10. Commercial lists and the like
11. Learned treatises
12. Testimony or deposition at a former trial
13. Residual exception

i. Dying Declaration

Also known as “antemortem statement” or “statement in articulo mortis” [People v. Mendoza,

G.R. No. 142654 (2001)]

Requisites for Admissibility

1. Declaration of a dying person

2. Declaration was made under the

consciousness of an impending death

3. Declaration may be received in any case wherein his/her death is the subject of inquiry,
as evidence of the cause and

surrounding circumstances of such death

[Sec. 38, Rule 130]

4. Declarant would have been competent as

a witness had he survived [Geraldo v

People, G.R. No. 173608 (2008)); and

5. Declarant should have died [People v. Macandog, G.R. No. 129534 and 1411691
 (2001)]

A dying declaration must be single hearsay to be admissible [People v. Bautista, G.R. No.
117685 (1999)]

Rationale for Admissibility

As a general rule, when a person is at the point of death, every motive to falsehood is silenced
[People v Bacunawa, G.R. No. 136859 (2001)]

The law considers the point of death as a situation so solemn and awful as creating an
obligation equal to that which is imposed by an oath administered by the court. [People v.
Cerilla, G.R. No. 177147 (2007)]

The admissibility of an ante mortem declaration is not affected by the fact that the declarant died
hours or several days after making his declaration. It is sufficient that he believes himself in
imminent danger of death at the time of such declaration [Herrera, citing People v. Ericta 77
SCRA 199]

The rule is that, in order to make a dying declaration admissible, a fixed belief in inevitable and
imminent death must be entered by the declarant. It is the belief in impending death and not the
rapid succession of death in point of fact that renders a dying declaration admissible. The test is
whether the declarant has abandoned all hopes of survival and looked on death as certainly
impending.

Objections to the dying declaration

May be premised on any of the requisites for its admissibility embodied in Sec. 38, Rule 130.
[Riano 302, 2016 Ed.]

Dying declarations are admissible in favor of the defendant as well as against him [US v.
Antipolo, 37 Phil. 726 (1918)]
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ii. Statement of Decedent or Person of Unsound Mind

Requisites for Admissibility

General rule: Any statement of the deceased or the person of unsound mind may be received
in evidence
 1. In an action against:
1. an executor, administrator or other

representative of a deceased person;

OR

2. a person of unsound mind

2. Upon a claim or demand against the estate of such deceased person or against such
person of unsound mind
3. Where party or assignor of a party or a person in whose behalf a case is prosecuted
testifies on a matter of fact occurring before the death of the deceased or before the
person became of unsound mind
4. Statement was made by the deceased or person of unsound mind at a time where the
matter had been recently perceived by him/her while his/her recollection was clear

Exception: The statement is inadmissible if made under circumstances indicating its lack of
trustworthiness [Sec. 39, Rule 130]

iii. Declaration Against Interest

Requisites for Admissibility

1. Declarant is dead or unable to testify;

2. Declaration relates to a fact against the

interest of the declarant;

3. At the time he made said declaration,

declarant was aware that the same was contrary to the declarant’s own interest; and

4. Declarant had no motive to falsify and believed such declaration to be true [Sec. 40,
Rule 130]

When NOT admissible

General rule: If the statement tends to expose the declarant to criminal liability and is offered to
exculpate the accused

Exception: Admissible if corroborating circumstances clearly indicate the trustworthiness of the

statement [Sec. 40, Rule 130]

Inability to testify means that the person is dead, mentally incapacitated or physically
incompetent. Mere absence from the jurisdiction does not make him ipso facto unavailable.
[Fuentes v. C.A., G.R. No. 111692 (1996)]

Admissible against third persons

Declaration against interest made by the deceased, or by one unable to testify, is admissible
even against the declarant’s successors-in-interest or even against third persons [Sec. 40, Rule
130]

Actual or real interest

It is essential that at the time of the statement, the declarant’s interest affected thereby should
be actual, real or apparent, not merely contingent, future or, conditional; otherwise the
declaration would not in reality be against interest. (Example: declarations regarding a
declarant’s inheritance are not admissible because these are future interests) [Herrera]

As Distinguished from Admissions

 Declaration against Interest [Sec. 40, Rule
Admission by a party [Sec. 27, Rule 130]
130]
Admitter is a party himself, or in privity with Declarant is neither a party nor in privity with a
such party party
Admissible whether or not admitter is available Admissible only when declarant is unavailable
as a witness as a witness
Can be made any time, even during trial Must have been made ante litem motam

Admissible
against the admitter

only Admissible even against 3rd persons

Admissible not as an exception to any

Admissible as an exception to the hearsay rule
rule

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Made against one’s claim or defense, although not moral Made against one’s pecuniary or
or pecuniary interest moral interest

Primary evidence
[Estrada v. Desierto, G.R. Nos. 146710-15 (2001)]

iv. Act or Declaration About Pedigree

Requisites for Admissibility

1. The act or declaration

2. Of a person deceased or unable to testify
3. In respect to the pedigree of another

person related to him/her by

birth;
1.
adoption;
2.
marriage; or
3.
in the absence thereof, with those family he/she was so intimately associated as
4.
to be likely to have accurate information concerning his/her pedigree
4. May be received in evidence where the act/declaration occurred before the controversy;
and
 5. Relationship between the declarant and the person whose pedigree is in question must
be shown by evidence other than such act or declaration (evidence aliunde) [Sec. 41,
Rule 130]

Pedigree includes

1. Relationship;
2. Family genealogy;
3. Birth;
4. Marriage;
5. Death;
6. Dates when these facts occurred;
7. Places where these facts occurred;
8. Names of relatives; and
9. Facts of family history intimately connected

with pedigree [Sec. 40, Rule 130]

Pedigree declaration by conduct

This rule may also consist of proof of acts or conduct of relatives and the mode of treatment in
the family of one whose parentage is in question [Herrera 649]

v. Family Reputation or Tradition Regarding Pedigree

Requisites for Admissibility

1. Witness must be a member, by consanguinity, affinity, or adoption, of the same family as

the subject; and
2. Such reputation or tradition must have existed in that family ante litem motam (before
the controversy) [Sec. 42, Rule 130]

1. Note: ante litem motam means before the controversy arose, not before the suit was brought
(Prof. Avena)

Other Admissible Evidence

1. Entries in family bibles or other family books;

2. Charts;
3. Engravings on rings;
4. Family portraits and the like

[Sec. 42, Rule 130]

This enumeration, by ejusdem generis, is limited to "family possessions," or those articles which
represent, in effect, a family's joint statement of its belief as to the pedigree of a person [Jison v.
C.A., G.R. No. 124853. (1998)]
A person’s statement as to his date of birth and age, as he learned of these from his parents or
relatives, is an ante litem motam declaration of a family tradition [Gravador v. Mamigo, G.R. No.
L-24989, (1967)]

Distinguished from Declaration about Pedigree

Secondary evidence
Sec. 41 – Declaration about Pedigree Sec. 42 – Family Reputation or Tradition
There must be a declarant and a witness The
testifying
family
The witness need not be a relative of the and tradition must be a member of the family
person whose pedigree is in question, it must member of the person whose pedigree is in
be the declarant. controversy.

witness to the reputation

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Independent evidence is needed to establish The witness may testify about the relationship
relationship between declarant and person himself. The author of the reputation need not be
whose pedigree is in issue established by independent evidence.
[Herrera]
vi. Common Reputation

Definition: 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 [2 Regalado, 787, 2008 Ed.]

Requisites for Admissibility

a. Common reputation existed ante litem motam

b. Reputation pertains to:

 1. boundaries of or customs affecting

lands in the community

2. events of general history important to

the community

3. marriage, or
4. moral character

[Sec. 43, Rule 130]

Note: The 30-year rule was removed in the

Amended Rules

Other Admissible Evidence

a. Monuments
b. Inscriptions in public places [Sec. 43, Rule 130]

Pedigree may be established by reputation in the family, but not in the community [Secs. 42- 43,
Rule 130]

Common reputation is hearsay like any other exception to the hearsay rule, but is admissible
because of trustworthiness [Riano 327, 2016 Ed., citing Reg. v. Bedforshire, 4 E & B 535, 82
ECL 535, 542]

Reputation has been held admissible as evidence of age, birth, race, or race-ancestry, and on
the question of whether a child was born alive [In re: Florencio Mallare, A.M. No. 533 (1974)]

Unlike that of matters of pedigree, general reputation of marriage may proceed from persons
who are not members of the family — the reason for the distinction is the public interest. [In re:
Florencio Mallare, AM No. 533 (1974)]

vii. Part of the Res Gestate

Res gestae — “things done”

Res gestae, as an exception to the hearsay rule, refers to those exclamations and statements
made by either the participants, victims, or spectators to a crime immediately before, during, or
after the commission of the crime, when the circumstances are such that the statements were
made as a spontaneous reaction or utterance inspired by the excitement of the occasion and
there was no opportunity for the declarant to deliberate and to fabricate a false statement [DBP
Pool of Accredited Insurance Companies v. Radio Mindanao Network, Inc., G.R. No. 147039
(2006)]
A dying declaration can be made only by the victim, while a statement as part of the res gestae
may be that of the killer himself after or during the killing [2 Regalado 788, 2008 Ed., citing
People v. Reyes, G.R. Nos. L-1846–48 (1949)]

A statement not admissible as dying declaration because it was not made under consciousness
of impending death, may still be admissible as part of res gestae if made immediately after the
incident [People v. Gueron, G.R. No. L-29365 (1983)]

Page 511 of 525

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Requisites for res gestae

Spontaneous Statements Verbal Acts

1. The res gestae or principal act
1. The principal act, the res
or to be characterized must be
equivocal;
gestae, be made due to a startling
occurrence
2. Such act must be material to
2. The statements were made
the issue
before the declarant had the opportunity to
3. The statements
contrive
must accompany the equivocal act.
3. The statements must refer to the
occurrence in question and its attending
4. The statements give a legal
circumstances [Talidano v. Falcon
Maritime, G.R. No. 172031 (2008)]]
significance to the equivocal act
[Talidano v. Falcon Maritime, G.R.
[2 Regalado 788, 2008 Ed., citing People v.
No. 172031 (2008)]
Siscar, G.R. No. 55649 (1985)]
[2 Regalado 790, 2008 Ed.]
Spontaneous exclamations may have been made Verbal act must have been made at the
before, time, and not after, the equivocal act was
during being performed [2 Regalado 790, 2008
immediately Ed.]
the
occurrence equivocal act [2 Regalado 790, 2008
Ed.]

AND must be under the stress or excitement

caused by the occurrence [Sec. 44, Rule 130]

or after startling
Sec. 44. Res gestae Sec. 38. Dying Declaration
Statement may be made by the killer himself
after or during the killing [People v. Reyes, G.R.
Nos. L- 1846–48 (1949)] OR that of a Can be made only by the victim

3rd person.
May precede, accompany or be made after the Made only after the homicidal attack has been
homicidal attack was committed committed
Trustworthiness based upon in its being given
Justification in the spontaneity of the statement.
in awareness of impending death
Page 512 of 525

[2 Regalado 788-789, 2008 Ed.]

viii. Records of Regularly Conducted

Business Activity

Requisites for Admissibility

1. Memorandum, report, record or data compilation

1. Of acts, events, conditions, opinions, or diagnoses
2. Made by writing, typing, electronic, optical, or other similar means
 3. At or near the time of or from transmission or supply of information
2. Entrant had knowledge thereof
3. Records are kept in the regular course or

conduct of a business activity

4. The making of the memorandum, report,

record, or data compilation by electronic,

optical or similar means is regular practice

5. All of the above are shown by the testimony of a custodian or other qualified witness

[Sec. 45, Rule 130]

Note: Sec. 45 has no counterpart in the previous Rules but it is the exact reproduction of Sec. 2,
Rule 8, Rules on Electronic Evidence

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(“Business records as exception to the hearsay rule under the Rules on Electronic Evidence”)

If the entrant is available as a witness, the entries will not be admitted, but they may
nevertheless be availed of by said entrant as a memorandum to refresh his memory while
testifying on the transactions reflected therein [Cang Yui v. Gardner, G.R. No. L-9974 (1916)]

Entries in the payroll, being entries in the course of business, enjoy the presumption of
regularity [Sapio v. Undaloc Construction, G.R. No. 155034 (2008)]

Reason for rule

The duty of the employees to communicate facts is of itself a badge of trustworthiness of the
entries [Security Bank and Trust Company v. Gan, G.R. No. 150464 (2006)]

These entries are accorded unusual reliability because their regularity and continuity are
calculated to discipline record keepers in the habit of precision [LBP v. Monet’s Export and
Manufacturing Corp., G.R. No. 184971 (2010)]

ix. Entries in Official Records

Requisites for Admissibility

b. the penalty which is usually affixed to a breach of that duty;

c. the routine and disinterested origin of most such statements; and

d. the publicity of record which makes more likely the prior exposure of such errors as might
have occurred

[Herce, Jr. v Municipality of Cabuyao, Laguna, GR. No. 166645 (2005)]

A sheriff’s return is an official statement by a public official in the performance of a duty specially
enjoined by law and is prima facie evidence of the facts therein stated. Being an exception to
the hearsay rule, the sheriff need not testify in court as to the facts stated in said return [Manalo
v Robles Trans.Co., GR. No. L- 8171, (1956)]

Entries in official records are merely prima facie evidence of the facts therein stated [Sec. 46,
Rule 130]

Entries in a police blotter are not conclusive proof of the truth of such entries [People v.
Cabuang, G.R. No. 103292 (1993)]

Baptismal certificates or parochial records of baptism are not official records [Fortus v. Novero,
G.R. No. L-22378 (1968)]
 1. Entries in official records were made by a
public officer in the performance of his/her
duties or by a person in the performance of
a duty specially enjoined by law [Sec. 46,
Rule 130]; a.
2. Entrant must have personal knowledge of
the facts stated by him or such facts
acquired by him from reports made by b. persons under a legal duty to submit the
same [Barcelon, Roxas Securities v. CIR,
G.R. 157064 (2006)]; and c.

c. Entries were duly entered in a regular manner in the official records [People v. Mayingque,
G.R. No. 179709 (2010)]
The trustworthiness of public documents and the value given to the entries made therein could
be grounded on:
a. the sense of official duty in the preparation

of the statement made;

Evidence of statements of matters of interest to persons engaged in an occupation

Such statements are contained in a list, register, periodical, or other published compilations

Compilation is published for use by persons engaged in that occupation; and 1. Example:
mortality tables, MIMS drug

Page 513 of 525

x. Commercial Lists and the Like

Requisites for Admissibility

database
d. It is generally used and relied upon by them [Sec. 47, Rule 130]

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xi. Learned Treatises

Requisites for Admissibility

1. Published treatise, periodical or pamphlet is on a subject of history, law, science, or art;

and
2. Court takes either:
1. judicial notice of it, or
2. a witness expert in the subject testifies

that the writer of the statement in the treatise, periodical or pamphlet is

recognized in his/her profession or calling as expert in the subject

[Sec. 48, Rule 130]

Scientific studies or articles and websites which were culled from the internet, attached to the
Petition, and were not testified to by an expert witness are basically hearsay in nature and
cannot be given probative weight. [Paje v. Casiño, G.R. No. 207257 (2015)]

xii. Testimony or Deposition at a Former Trial

Requisites for Admissibility

 1. Witness is dead, out of the Philippines or with due diligence cannot be found therein,
unavailable, 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. Former case involved the same subject as that in the present case although on different
causes of action;
4. Issue testified to by the witness in the former trial is the same issue involved in the
present case; and
5. Adverse party had the opportunity to cross- examine the witness in the former case

[Sec. 49, Rule 130]

Inability to testify (meaning and standard)

The inability of the witness to testify must proceed from a grave cause, almost amounting to
death, as when the witness is old and has lost the power of speech. Mere refusal shall not
suffice [Tan v. C.A., G.R. No. L-22793 (1967)]

xiii. Residual Exception Requisites for admissibility

Page 514 of 525

a. b. c.

Statement not specifically covered by any of the foregoing exceptions;

Has the equivalent circumstantial guarantees of trustworthiness

The court determines that:

1. the statement is offered as evidence of

a material fact;
2. it is more probative on the point for

which it is offered than any other evidence which the proponent can procure through reasonable
efforts; and

3. the general purposes of these rules and the interests of justice will be best served by its
admission

Proponent makes known to the adverse party, sufficiently in advance of the hearing or by the
pre-trial stage in case of a trial of the main case, to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent’s intention to offer the statement and its
particulars, including the name and address of the declarant [Sec. 50, Rule 130]
d.

Note: This is a new provision under the Amended Rules.

OTHER EXCEPTIONS OUTSIDE THE RULES OF COURT

a. Affidavit in the Rules of Summary

Procedure - shall not be considered as competent evidence for the party presenting the
affidavit, but the adverse party may utilize the same for any admissible purpose [Sec. 14,
Rules on Summary Procedure]
b. Under the Rule on Examination of a Child Witness, hearsay exception in child abuse cases
[see Sec. 28]

d. Independently Statements (IRS)

Relevant

Statements or writings attributed to a person not on the witness stand, which are being offered
not to prove the truth of the facts stated

U.P. LAW BOC EVIDENCE therein, but only to prove that such were

actually made.
These are not covered by the hearsay rule

[People v. Cusi, G.R. No. L-20986 (1965)]

These are statements which are relevant independently of whether they are true or not [Estrada
v. Desierto, G.R. No. 146710 (2001)]

Two classes of independently relevant statements:

1. Statements which are the very facts in

issue, and

2. Statements which are circumstantial

evidence of the facts in issue. They include

the following:

1. Statement of a person showing his

state of mind, that is, his mental condition, knowledge, belief, intention, ill will and other
emotions;

2. Statements of a person which show his physical condition, as illness and the like;
3. Statements of a person from which an inference may be made as to the state of mind of
another, that is, the knowledge, belief, motive, good or bad faith, etc. of the latter;
4. Statements which may identify the date, place and person in question; and
5. Statements showing the lack of credibility of a witness [Estrada v.

Desierto, G.R. No. 146710 (2001)]

6. Opinion Rule
Opinion is an inference or conclusion drawn from facts observed [Black’s Law Dictionary]
General rule: The opinion of witness is not admissible [Sec. 51, Rule 130]

Exceptions:

1. Expert witness [Sec. 52, Rule 130]

2. Ordinary witness [Sec. 53, Rule 130]

a. Opinion of Expert Witness; Weight given

REMEDIAL LAW

The opinion of a witness on a matter requiring special knowledge, skill, experience, training, or
education, which he/she shown to possess, may be received in evidence [Sec. 52, Rule 130]

Expert witness is one who has made the subject upon which he gives his opinion a matter of
particular study, practice or observation and he must have particular and special knowledge on
the subject [People v. Dekingco, G.R. No. 87685 (1990)]

ADMITTING EXPERT TESTIMONY

Question in admitting expert testimony

Whether the opinion called for will aid the fact finder in resolving an issue, or whether the judge
is as well qualified as the witness to draw its own or his own deductions from the hypothetical
facts [Herrera]

Court discretion to exclude or include expert evidence

If men of common understanding are capable of comprehending the primary facts and drawing
correct conclusions from them, expert testimony may be excluded by the Court [Herrera]

Competency of witness is a preliminary question before testimony is admitted

It must be shown that the witness is really an expert; determination of competency is a
preliminary question [Herrera]

The competence of an expert witness is a matter for the trial court to decide upon in the
exercise of its discretion. The test of qualification is necessarily a relative one, depending upon
the subject matter of the investigation, and the fitness of the expert witness. In our jurisdiction,
the criterion remains to be the expert witness' special knowledge, experience and practical
training that qualify him/her to explain highly technical medical matters to the Court.

It is the specialist's knowledge of the requisite subject matter, rather than his/her
Page 515 of 525

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specialty that determines his/her qualification to testify. [Casumpang v. Cortejo, G.R. No.
171127 (2015)]

EXAMINING AN EXPERT WITNESS

Mode of examination of expert witness

He may base his opinion 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 this
hypothesis [Herrera]

The lack of personal examination and interview of the respondent, or any other person
diagnosed with personality disorder, does not per se invalidate the testimonies of the doctors.
Neither do their findings automatically constitute hearsay that would result in their exclusion as
evidence. Within their acknowledged field of expertise, doctors can diagnose the psychological
make up of a person based on a number of factors culled from various sources. [Camacho-
Reyes v Reyes, G.R. No. 185286 (2010)]

How to present an expert witness

1. Introduce and qualify the witness;

2. Let him give his factual testimony, if he has

knowledge of the facts;

3. Begin the hypothetical question by asking

him to assume certain facts as true;

4. Conclude the question, by first asking the expert if he has an opinion on a certain

point

5. assuming that these facts are true and

secondly, asking him, after he has answered affirmatively, to give his opinion on the
point;

6. After he has stated his opinion, ask him to give his reasons.

Weight given to expert testimony

Courts are not bound by the findings or opinions of the expert. Their evidence is not conclusive,
but merely advisory.

b. OpinionofOrdinaryWitness

The opinion of an ordinary witness is admissible:

1. 2.

If proper basis is given, and Regarding:

a.

b.
c.

d.

Identity of a person about whom he/she has adequate knowledge;

Handwriting with which he/she has sufficient familiarity;

Mental sanity of a person with whom he/she is sufficiently acquainted; and Impressions of the

emotion,
behavior,
condition, or appearance of a person
Page 516 of 525

i. ii. iii. iv.

[Sec. 53, Rule 130]

IDENTITY OF A PERSON ABOUT WHOM HE

HAS ADEQUATE KNOWLEDGE

Statements of a witness as to identity are not to be rejected because he is unable to describe

features of the person in question [Herrera]

Identification by voice is recognized by the courts, especially in a case where it was impossible
to see the accused but the witness has known the accused since their childhood [Herrera, citing
US v. Manabat]

HANDWRITING WITH WHICH HE HAS SUFFICIENT FAMILIARITY

The ordinary witness must be acquainted with the characteristics of the handwriting of a person.
He may only draw on the knowledge which he already has, and which enables him to recognize
the handwriting.

Only experts are allowed to give conclusions from the comparison of samples of handwriting of
a person whose handwriting he is not familiar with [Herrera]

MENTAL SANITY OF A PERSON WITH WHOM HE IS SUFFICIENTL Y ACQUAINTED

These are allowed where the witness can adequately describe the actions, looks or symptoms
of a person’s sanity or insanity which is impossible for the court to determine [Herrera]

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IMPRESSIONS OF THE EMOTION, BEHAVIOR, CONDITION OR APPEARANCE OF A

PERSON

The rule recognizes instances when a witness may be permitted to state his inferences that are
drawn from minute facts and details which the witness cannot fully and properly describe in
court. Such expressions are expressed to the countenance, the eye and the general manner
and bearing of the individual; appearance which are plainly enough recognized by a person of
good judgment, but which he cannot otherwise communicate by an expression of results in the
shape of an opinion [Herrera, citing US case Hardy v. Merill]

7. Character Evidence
Note: There are substantial changes in this part in the 2019 Revised Rules

Character distinguished from reputation

'Character' is what a man is, and 'reputation' is what he is supposed to be in what people say he
is. 'Character' depends on attributes possessed, and 'reputation' on attributes which others
believe one to possess. The former signifies reality and the latter merely what is accepted to be
reality at present [Lim v. C.A., G.R. No. 91114 (1992)].

General rule:
Evidence of a person’s character or a trait of character is not admissible for the purpose of
proving action in conformity therewith on a particular occasion
[Sec. 54, Rule 130]

Exceptions:

1. Criminal cases [Sec. 54(a), Rule 130]

2. Civil case [Sec. 54(b), Rule 130]
3. In both civil and criminal cases [Sec. 54(c),

Rule 130]

1. Evidence of good character of witness

is not admissible until such character

has been impeached

2. When the character or trait of character

is an essential element of a charge, claim or defense

1.

a. CriminalCases

Accused – May prove his/her good moral character, which is pertinent to the moral trait
involved in the offense charged.

2. Prosecution – May not prove the bad moral character of the accused, except in rebuttal.

3. Offended Party –May be proved if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.

[Sec. 54, Rule 130]

Good moral character of accused

The purpose of presenting evidence of good moral character is to prove the improbability of his
doing the act charged. The accused may prove his good moral character only if it is pertinent to
the moral trait involved in the offense charged [Herrera]

Bad moral character of accused in rebuttal

Unless and until the accused gives evidence of his good moral character the prosecution may
not introduce evidence of his bad character [Herrera, citing People v. Rabanes, G.R. No. 93709
(1992)]

Character evidence must be limited to the traits and characteristics involved in the type of
offense charged. Thus:

 ●  on a charge of rape: character for chastity

 ●  on a charge of assault: character for

peaceableness or violence

 ●  on a charge of embezzlement: character

for honesty [CSC v. Belagan, G.R. No. 132164 (2004)]

Proof of the bad character of the victim is not admissible:

 ●  In a murder case: If the crime was

committed through treachery and evident premeditation [People v. Soliman, G.R. No. L-
9723 (1957)]

 ●  In a rape case: If through violence and intimidation [People v. Blance, G.R. No. 20063,
(1923)]
Page 517 of 525

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Rape Shield Rule

In prosecution for rape, evidence of complainant’s past sexual conduct, opinion thereof or of
his/her reputation shall not be admitted unless, and only to the extent that the court finds that
such evidence is material and relevant to the case [Sec 6, R.A. 8505]
Sexual Abuse Shield Rule

The following evidence is not admissible in any criminal proceeding involving alleged child
sexual abuse:

1. Evidence to prove that the alleged victim

engaged in other sexual behavior; and

2. Evidence offered to prove the sexual predisposition of the alleged victim [Sec 30,

Rule on Examination of a Child Witness]

b. Civil cases

Moral character is admissible only when pertinent to the issue of character involved in the case
[Sec. 54(b), Rule 130]

c. Criminalandcivilcases

Evidence of the witness’ good character is not admissible until such character has been
impeached

In all cases in which evidence of character or a trait of character of a person is admissible, proof
may be made by:

1. Testimony as to reputation; or
2. Testimony in the form of an opinion

On cross-examination, inquiry is allowable into relevant specific instances of conduct.

In cases where the character or trait of character is an essential element of a charge, claim, or
defense, proof may also be made of specific instances of that person’s conduct. [Sec. 54(c),
Rule 130]

8. Judicial Affidavit Rule [A.M. 12-8-8-SC]

a. Scope

Where Applicable

Applies to all actions and proceedings, and incidents requiring the reception of evidence before:

1. Courts (but not to small claims cases)

2. Investigating officers and bodies authorized by the SC to receive evidence, including the
IBP
 3. Quasi-judicial bodies, whose rules of procedure are subject to disapproval of the
Supreme Court, insofar as their existing rules of procedure contravene the provisions of
this Rule

[Sec. 1]
b. Submission in lieu of direct

Page 518 of 525

1.

testimony
The parties shall file with the court and serve on the adverse party, personally or by licensed
courier service, not later than five 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, shall be marked and attached to the
judicial affidavits

Should a party or a witness desire to keep the original document or object evidence in his
possession, he may, after the same has been identified, marked as exhibit, and authenticated,
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. This is
without

2.

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REMEDIAL LAW

prejudice to the introduction of secondary evidence in place of the original when allowed by
existing rules.

[Sec. 2]
c. Contents

Shall be prepared in the language known to the witness and, if not in English or Filipino,
accompanied by a translation in English or Filipino [Sec. 3]

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
1. Show the circumstances under which

the witness acquired the facts upon

which he testifies
 2. Elicit from him those facts which are

relevant to the issues that the case

presents; and

3. 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

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]
7. A sworn attestation at the end, executed by

the lawyer who conducted or supervised the examination of the witness, to the effect that:
a. He faithfully recorded or caused to be

recorded the questions he asked and the corresponding answers that the witness gave; and

b. Neither he nor any other person then present or assisting him coached the witness regarding
the latter's answers.

A false attestation shall subject the lawyer mentioned to disciplinary action, including
disbarment.
[Sec. 4]

d. Offerandobjection

Offer of and objections to testimony in judicial affidavit

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.

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.

3. 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 prejudice to a tender of excluded evidence under Section 40 of Rule 132 of the Rules of
Court.

[Sec. 6]
Examination of the witness on his judicial affidavit
1. The adverse party shall have the right to

cross-examine the witness on his judicial affidavit and on the exhibits attached to the same.

2. The party who presents the witness may also examine him as on re-direct.

3. 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.

[Sec. 7]

Oral offer of and objections to exhibits

1. Upon the termination of the testimony of his last witness, a party shall immediately make an
oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological
order, stating
Page 519 of 525

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the purpose or purposes for which he offers

the particular exhibit.

2. 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.

3. 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.

[Sec. 8]
e. Applicationincriminalcases

This 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]

Procedure

1. 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.
2. 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.
3. No further judicial affidavit, documentary, or object evidence shall be admitted at the
trial.
4. If the accused desires to be heard on his defense after receipt of the judicial affidavits of
the prosecution, he shall have 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.

[Sec. 9]
f. Effect of non-compliance
Non-compliant

behavior

Consequence
Party’s failure to submit

Deemed to have waived their submission

Note: Court may allow, only once late submission, provided

1. the delay (a) is for a

valid reason, (b) would not prejudice the opposing party and

2. the defaulting party pays a fine.

Witness’ failure to appear at the scheduled hearing

Affidavit shall not be considered by the court

Counsel’s failure to appear

Deemed to have waived his client’s right to cross- examine the witnesses there present

Non- compliance with content and attestation requirements

Judicial affidavit cannot be admitted as evidence

The court may, however, allow only once the subsequent submission of the compliant replacement
affidavits before the hearing or trial provided

1. the delay (a) is for a valid reason, (b)

 would not prejudice the opposing party and

2. the defaulting party pays a fine.

[Sec. 10] Page 520 of 525

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Issuance of Subpoena

If the government employee or official, or the requested witness, who is neither the witness of
the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or
refuses without just cause to make the relevant books, documents, or other things under his
control available for copying, authentication, and eventual production in court, the requesting
party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under
Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in
this case shall be the same as when taking his deposition except that the taking of a judicial
affidavit shall be understood to be ex parte [Sec. 5]

Adverse party witnesses and hostile witnesses are excluded since they are not covered by Sec.
5 [Tam v. China Banking Corporation, G.R. No. 214054 (2015)]

There is nothing in the provisions of the Judicial Affidavit Rule, which prohibits a defendant from
filing a demurrer to evidence, if he truly believes that the evidence adduced by the plaintiff is
insufficient. [Lagon v. Velasco, G.R. No. 208424 (2018)]

The provisions of the Rules of Court and other rules of procedure in the investigative or quasi-
judicial bodies covered by this rule are repealed or modified insofar as these are inconsistent
with the provisions of this Rule [Sec. 11]

1. Offer of Evidence
General rule: The court shall consider no evidence which has not been formally offered. The
purpose for which the evidence is offered must be specified [Sec. 34, Rule 132]

Exception:

Evidence not formally offered may be admissible when two essential conditions concur:
a. the same must have been duly identified by

testimony duly recorded and,

b. the same must have been incorporated in

the records of the case

[Star Two v. Ko, G.R. No. 185454 (2011)]

As Distinguished from Identification of Documentary Evidence

[Interpacific Transit v. Aviles, G.R. No. 86062 (1990)]

Why Formal Offer is Necessary

Parties are required to inform the courts of the purpose of introducing their respective exhibits to
assist the latter in ruling on their admissibility in case an objection thereto is made. [Star Two v.
Ko, G.R. No. 185454 (2011)]

A formal offer is necessary because it is the duty of a judge to rest his findings of facts and his
judgment only and strictly upon the evidence offered by the parties to the suit. It is a settled rule
that the mere fact that a particular document is identified and marked as an exhibit does not
mean that it has thereby already been offered as part of the evidence of a party. [Parel v.
Prudencio, G.R. 146556 (2006).

No evidentiary value can be given to pieces of evidence not formally offered [Dizon v. CTA,
G.R. No. 140944 (2008)]

However, where the absence of an offer of testimonial evidence was not objected to as when
the witness was cross-examined by the adverse party despite failure to make an offer of the
testimony, the court must consider the testimony.
Identification of Documentary Evidence Formal Offer of Evidence
Done in the course of the trial and accompanied by the Done only when the party rests
marking of the evidence his/her case
F. OFFER AND OBJECTION

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The provisions of the ROC on the inclusion n appeal of documentary evidence or exhibits in the
records, cannot be stretched as to include such pleadings or documents not offered at the
hearing of the case [Candido v. C.A., G.R.No. 107493 (1996)]

When Formal Offer is NOT Required

1. In a summary proceeding because it is a proceeding where there is no full-blown trial;

2. Documents judicially admitted or taken judicial notice of; @
3. Documents, affidavits, and depositions used in rendering a summary judgment;
4. Documents or affidavits used in deciding quasi-judicial or administrative cases
[Bantolino v. Coca Cola Bottlers, G.R. No. 153660 (2003)]
5. Lost objects previously marked, identified, described in the record, and testified to by
witness who had been subjects of cross- examination in respect to said objects
[Tabuena v. C.A., G.R. No. 85423 (1991), citing People v. Napat-a, G.R. No. 84951
(1989)]

[Riano 343, 2016 Ed.]

f. When duly identified in a testimony duly

recorded and it was incorporated in the records of the case [Vda. de Oate v. C.A., G.R. No.
116149 (1995)]

Evidence can be considered only for the purposes it was specifically offered [Republic v Reyes-
Bakunawa, G.R. No. 180418 (2013)]

Waiver of Right to Make Formal Offer

It is deemed waived by a party if it fails to submit within a considerable period of time its formal
offer [Heirs of Pasag v. Parocha, G.R. No. 155483 (2007)]

A party is not deemed to have waived objection to admissibility of documents by his failure to
object to the same when they were marked, identified and then introduced during the trial. This
is because objection to documentary evidence must be made at the time it is formally offered
and not earlier [Interpacific Transit v. Aviles, G.R. No. 86062 (1990)]

2. When to Make an Offer

At the time the witness is called to testify

[Sec. 35, Rule 132]

The party who terminated the presentation of evidence must make an oral offer of evidence on
the very day the party presented the last witness. Otherwise, the court may consider the party’s
documentary or object evidence waived [Heirs of Pasag v. Sps. Parocha, G.R. No. 155483
(2007)]

Manner of Offer
ALL evidence must be offered orally [Sec. 35, Rule 132]
Note: This is a revision under the 2019 Revised Rules.

The Court shall consider the evidence solely for the purpose for which it is offered, not for any
other purpose [Spouses Ragudo v Fabella Estate Tenants Association, Inc., G.R. No. 146823,
(2005)].

3. Objection
Concept

When a party desires the court to reject the evidence offered, he must so state in the form of
objection. Without such objection, he cannot raise the question for the first time on appeal
[People v. Diaz, G.R. No. 197818 (2015)]

Purposes of Objection

1. Made to keep out inadmissible evidence that would cause harm to client’s cause (rules
of evidence are not self-operating);
2. To protect the record (for future appeal);
3. T o protect witness from being

embarrassed or harassed;

4. To expose adversary’s unfair tactics;

Kind of evidence

When to offer
Testimonial
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Documentary and Object

After the presentation of a party’s testimonial evidence

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5. To give 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 inadmissibility

[Riano]

Objections must be specific enough to adequately inform the court the rule of evidence or of
substantive law that authorizes the exclusion of evidence [Riano]

MANNER

Objection to offer of evidence must be made ORALLY immediately after the offer is made [Sec.
35, Rule 132]

When to Object

The grounds for objection must be specified

in any case.
[Sec. 36, Rule 132]

Waiver of Objection

When there is failure to point out some defect, irregularity or wrong in the admission or
exclusion of evidence. Such failure may take various forms and may either be expressed or
implied [Riano 353, 2016 Ed.]
Effect of waiver

Although hearsay evidence may be admitted because of lack of objection, it is nonetheless

without probative value, unless the proponent can show that the evidence falls within the
exception to the hearsay evidence rule [Bayani v. People, G.R. No. 155619 (2007)]

4. Repetition of an Objection
When it becomes reasonably apparent in the course of examination of a witness that the

questions being propounded are of the same class as those to which objection was sustained or
overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse
party to record his/her continuing objection to such class of questions [Sec. 37, Rule 132]

A court may, motu proprio, treat the objection as a continuing one [Keller v. Ellerman & Bucknall
Steamship, G.R. No. L-12308 (1918)]

Objection prior to the formal offer is premature and could not be considered by the Court as
basis for a continuing one [Interpacific Transit v. Aviles, G.R. No. 86062 (1990)]

Where a continuing objection had been interposed on prohibited testimony, the objection is
deemed waived where the objecting counsel cross-examined the witness on the very matters
subject of the prohibition [De Abraham v. Recto-Kasten, G.R. No. L- 16741 (1962)]

5. Ruling
General rule: The ruling of the court must be

given immediately after the objection is made.

Exception: 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]

A reasonable time must not extend beyond the ninety (90)-day reglementary period from the
date of submission of the formal offer of evidence [Beltran v. Paderanga, AM No. RTJ- 03-1747
(2003)]

The reason for sustaining or overruling an objection need not be stated. However, if the
objection is based on two or more grounds, a ruling sustaining the objection on one or some of
them must specify the ground/s relied upon [Sec. 38, Rule 132]
What to object to When to object
Testimony of a witness for lack of formal Immediately as soon as the witness begins to
offer testify
A question propounded in the course of Must be made as soon as the grounds become
oral examination reasonably apparent
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Reservation of a ruling by the court on an objection to the admissibility of evidence, without

subsequently excluding the same, amounts to a denial of an objection [People v. Tavera, G.R.
No. L-23172 (1925)]

No Express Ruling Needed

The trial court need not make an express ruling admitting the exhibits if there is no objection
interposed to their admission [Herrera, citing Boix v. Rivera, CA Rep. 2d 104]

The ruling of the court is required only when there is an objection to a question or to the
admission of an exhibit [Herrera]

Objections based on irrelevancy and immateriality need no specification or explanation.

Relevancy or materiality of evidence is a matter of logic, since it is determined simply by
ascertaining its logical connection to a fact in issue in the case [Cruz- Arevalo v. Querubin-
Layosa, AM No. RTJ-06- 2005 (2006)]

6. Striking Out an Answer

Motion to Strike

A motion to strike out goes to admissibility and not to weight; evidence should not be stricken
out because of its little probative value [Herrera]
 1. Court may sustain an objection and order the answer, testimony, or narration to be
stricken off the record if:
1. the witness answers the question

before the adverse party had the

opportunity to object;

2. a question is not objectionable, but the

answer is not responsive;

3. the witness testifies without a question

being posed;

4. the witness testifies beyond limits set

by the court; or

5. the witness does a narration instead of

answering the question; AND

6. such objection is found to be

meritorious.

2. The court may also, upon motion, order the

striking out of answers, which are

a. incompetent,
b. irrelevant or
c. otherwise improper

[Sec. 39, Rule 132]

Motion to strike out should specify objection

A motion to strike out should specify the objection as well as the portion of the evidence which is
objected to [Herrera]

7. Tender of Excluded Evidence

The procedure in Section 40 is known as the offer of proof or tender of excluded evidence and
is made for purposes of appeal. If an adverse judgment is eventually rendered against the
offeror, he may in his appeal assign as error the rejection of the excluded evidence. The
appellate court will better understand and appreciate the assignment of error if the evidence
involved is included in the record of the case [Cruz-Arevalo v. Querubin-Layosa, AM No. RTJ-
06-2005 (2006)]

The SC had advised trial courts to allow the rejected [documentary] evidence to be attached to
the record to enable the appellate court to examine the same and determine whether the
exclusion of the same was proper or not [Herrera, citing Banez v. C.A., G.R. No. L-30351
(1974)]

If an exhibit sought to be presented in evidence is rejected, the party producing it should ask the
courts permission to have the exhibit attached to the record. Any evidence that a party desires
to submit for the consideration of a higher court must be formally offered by him otherwise it is
excluded and rejected and cannot even be taken cognizance of on appeal [Catacutan v. People,
G.R. No. 175991 (2011)]

Before tender of excluded evidence is made, the evidence must have been formally offered
before the court. And before formal offer of evidence is made, the evidence must have been
identified and presented before the court [Yu v. C.A., G.R. No. 154115 (2005)]
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How to Tender Evidence

case. Any such opportunity, however, for the ultimate purpose of the admission of additional
evidence is already addressed to the sound discretion of the court [Republic v. Sandiganbayan,
G.R. No. 152375 (2011)
Kind of
How to tender the evidence
evidence
Documentary Offeror may have the same attached or made part of the record
Offeror may state for the record the name and other personal circumstances of
Testimonial
the witness and the substance of the proposed testimony

[Sec. 40, Rule 132]

Rationale

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. even if he is not convinced to reverse his earlier ruling, the tender is made to create and
preserve a record for appeal

[Riano 360, 2016 Ed.]

Two Methods of making the Tender

1. Where the counsel tells the court what the proposed testimony would be;
2. By using the question and answer form

[Riano 361-362, 2016 Ed.]

Erroneous Way of Making Tender

To make a mere general “offer of proof” without producing the witness or stating the evidence
where by the fact in issue is to be proved [Riano 364, 2016 Ed., Douillard v. Wood, 20 C2d 670,
128 P2d 6 (1942)]

Harmless error rule

In dealing with evidence improperly admitted in trial, we examine its damaging quality and its
impact to the substantive rights of the litigants. If the impact is slight and insignificant, we
disregard the error as it will not overcome the weight of the properly admitted evidence against
the prejudiced party [People v. Teehankee, G.R. No. 111206 (1995)]

The Rules of Court does not prohibit a party from requesting the court to allow it to present
additional evidence even after it has rested its

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