Evidence Finals | Atty.

Reyes

Substantive vs Procedural Law

Substantive Law- defines your rights and liabilities

Procedural/Remedial/Adjective Law- supposing there is violation of rights or wrong has been committed, how
would redress be obtained. Given certain set of facts, was a wrong committed, am I entitled to certain relief,
how would I go about? There remedial law will come in.

Action vs Proceeding

Evidence- the means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth respecting a
matter of fact. (Rule 128, Sec. 1.)

The Rules on Evidence apply only when there is going to be a trial. Note that there can be a judgment on
pleadings, by confession, consent and compromise etc. IN CIVIL CASES. Mere denial in the answer in a CIVIL
CASE will not present a probandum hence no need for the court to try the case. Such general denial will be
considered as an admission.

In CRIMINAL CASES, We have to wait until the accused enters a plea. This time a general denial is
allowed. If the accused enters a plea of guilty there is no probandum. However in CRIMINAL CASES, the court
could still try the case if the case involves a heinous crime.

The Rules on evidence are not self-executing. So the rule is any evidence submitted will be admitted so
long as there is no objection. This principle is only for the purpose of admissibility. It does not mean that the
court will take these irrelevant evidence in evaluating on the merits of the case.

In general

a. Is the means sanctioned by the rules of ascertaining in a judicial proceeding the truth respecting a
matter of fact.
b. Part of adjective law which provides for enforcing rights or obtaining redress for their invasion as
distinguished from substantive law which defines rights.
c. Need to adduce sufficient evidence to prove fact in in issue or relevant evidence.

Evidence is different from proof. Evidence is means by which proof is established; proof is the end result of
evidence.

Relevant evidence is one that has any value in reason as tending to prove any matter probable in an action.
Evidence is said to be material when it is directed to prove a fact in issue as determined by the rules of
substantive law and pleadings, while competent evidence is one that is not excluded by law in a particular
case. (Bautista vs. Aparece, 1995)

There must be contested issue, what facts must be proved. Admitted facts need not be proved.

 Present/adduce evidence to prove allegations of facts

 Rules on evidence is mostly rules on admissibility.
 General rules on admissibility- it must be relevant to the issues that is being proved & competent
 Relevance: Is the evidence relevant to the issue, it is a question of logical collection.
 Competent: it is not excluded by the constitution or any law.
  Specific Rules on admissibility
 No vested right of property in rules of evidence.
 Rules of evidence may be waived.

EVIDENCE vs. PROOF

Proof- is the effect of evidence. It is the probative effect of evidence and is the conviction or persuasion of the
mind resulting from a consideration of the latter.

Evidence- is the cause necessary to establish proof.

What the rules of evidence determine

a. Relevancy of facts or what sort of facts may be proved to establish existence of right, duty, or liability as
defined by substantive law,

b. The proof of facts, what sort of facts to be given for the facts in issue

c. Production of proof of relevant facts. Who is to give, how given, effect of improper admission or rejection of
evidence.

Facts in issue and facts relevant to an issue .

a. Facts in issue are those which plaintiff must prove to establish is claim, and the defendant his defense, I
already admitted, need not be proved;
b. Facts relevant to an issue – those facts which render probable the existence or non existence of fact in
issue, or some other relevant fact
c. Multiple admissibility – when an item in evidence may be legally relevant in various aspects or has a
bearing on different issues; maybe relevant in one but not in others.
d. Conditional admissibility - When relevancy or competency of a particular fact hinges upon proof of
other facts.
e. Curative admissibility = if one offers an inadmissible evidence which was wrongly admitted, the other
may similarly offer and inadmissible evidence e to counterbalance the inadmissible
f. Evidence illegally seized not admissible.
g. Policy to be observed in case of doubt - Better to admit , and let the court decide, and in case of appeal
that may be considered by the appellate court.

Factum probandum and Factum probans

a. Factum probandum is proposition to be established, factum probans, is material to evidence the

proposition.

b. Factum probandum is hypothetical. That one affirms, and the other denies. Factum probans is conceived as
existing and which is offered to prove the proposition.

Classes of evidence.

a. Relevant evidence. When it has tendency to establish probability or improbability of fact in issue.
b. Testimonial –
c. Documentary
d. Direct evidence – that which proves fact without need of inference or presumption.
e. Circumstantial – Proof of facts from which existence of facts in dispute may be inferred,
f. Primary evidence. - Evidence which affords greatest certainty of fact in question.
 g. Secondary evidence - which is inferior to primary evidence.
h. Corroborative - Evidence of different kind and character
i. Cumulative, - Evidence of same kind and character tending to prove same proposition
j. Prima facie - That which suffices until contradicted and overcome by other evidence.
k. Conclusive - That which is incontrovertible , cannot be denied or disproved
l. Rebuttal – That is given to explain, repel, counteract or disprove facts given in evidence.
i. Facts covered by judicial admissions need not be proved. Maybe oral or written , different from
extrajudicial admissions must still be offered in evidence. Admissions elicited in discovery process,
good only for purposes of present proceeding or case.
m. Sur-rebuttal – To introduce new matters
n. Expert evidence.
o. Substantial - that which a reasonable mind might accept to support a conclusion.

Scope – The rules shall be uniform in all trial or proceedings except as otherwise provided by the rules

Exclusionary Rules under the 1987 Constitution

1.1 Secs. 2 & 3, Art. III – The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and the persons or things to be
seized.

The privacy of communication and correspondence shall be inviolable except upon lawful order of the
court, or when public safety or order requires otherwise as prescribed by law.

Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in
any proceeding.

1.2 Sec. 12, Art III – Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his
own choice. If the person cannot afford the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of counsel. No torture, force, violence,
threat, intimidation, or any other means, which vitiate the free will, shall be used against him. Secret
detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in
evidence against him.

Sec. 17, Art III – No person shall be compelled to be a witness against himself.

This right is recognized under he Rules on Evidence, which provides that, it is the right of a witness not
to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law.
[Sec. 3 (4), Rule 132, ROC)
 NOTES AND COMMENTS: The human body could be used as evidence without violating the right.
Mechanical acts without the use of intelligence do not fall within the scope of the protection. Some of the
acts which are not covered by the right of self-incrimination are the following:

a. Fingerprinting, photographing nd paraffin testing, physical examination. (U.S. v. Tang, 23 Phil. 145_)
b. Physical examination of a woman accused of adultery to determine if she is pregnant. (U.S. v. On Suy
Hon, 36 Phil. 735; Villaflor v. Summers, 41 Phil. 62)
c. Undergoing ultra-violet rays examination to determine presence of flourescent powder on the hands.
(People v. Tranca, 35 SCRA 455)
d. Subpoena directing government officials to produce official documents or public records in their
custody.
e. Fitting the accused foot over a foot print, putting on a pair of trousers, etc.

Statutory Rules of Exclusion

2.1 Sec. 201, NIRC – An instrument, document or paper which is required by law to be stamped and which has
been signed, issued, accepted or transferred without being duly stamped, shall not be recorded, nor shall
it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court
until the requisite stamp or stamps shall have been affixed thereto and cancelled.

2.2 R.A. 4200 (Wire-tapping Act) –

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to
secretly overhear, intercept, or record such communication or spoken work by using a device commonly
known as a Dictaphone or dictograph or detectaphone or walkie-talkie or tape recorder, or however
otherwise described. x x

Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or
meaning of the same or any part thereof, or any information therein contained, obtained or secured by
any person in violation of the preceding sections of this Act shall not be admissible in evidence in any
judicial, quasi-judicial, legislative or administrative hearing or investigation.

An extension telephone cannot be placed in the same category as a Dictaphone, dictograph or the
other devices enumerated in Sec. 1 of RA 4200 as the use thereof cannot be considered as “tapping” the wire
or cable of a telephone line. (Gaanan vs. IAC, 1986)

RA 4200 expressly makes tape recordings of tapped conversations inadmissible in evidence absent a
clear showing that both parties to the phone conversations allowed the recording. (Salcedo-OrtaÒez vs. CA,
1994)

Irrelevant vs. Incompetent vs. Inadmissible vs. Immaterial Evidence

Irrelevant- no probative value; No tendency in reason to establish the probability or improbability of a fact in
issue. It does not directly relate to a fact in issue.

N.B. All facts and circumstances which afford reasonable inferences or throw light upon the probability of
matter or matters contested are admissible in evidence, UNLESS excluded by some established principle of
evidence, such as HEARSAY EVIDENCE RULE, RULE ON PAROLE EVIDENCE and BEST EVIDENCE RULE.

Collateral Matters- matters other than the facts in issue and which are offered as a basis merely for inference
as to the existence or non-existence of the facts in issue. These are not allowed unless satisfy ALL the
requirements of relevancy.

ILLUSTRATIONS:

a. finger marks, foot prints and a bat left by the accused in the place of the crime
b. The resemblance of a child to his alleged father to prove paternity of the latter
c. Bloodstains on the clothing of the person charged with a crime
d. The destruction or fabrication of evidence
e. Flight of the accused. (N.B. Non-flight is not conclusive proof of innocence)
f. Delay in the identification of victim’s assailant

Incompetent- excluded by the rules or any law

Inadmissible- not competent and irrelevant

Immaterial- the offered evidential fact is directed to prove some probandum which is not properly in issue.
(N.B.- The rules on substantive law and of pleading determine immateriality)

Material evidence- proves a main fact which is the subject of the inquiry or any circumstance which
tends to prove that fact or any fact or circumstance which tends to corroborate or strengthen the testimony
relative to the subject of inquiry or which legitimately affects the credibility of any witness who testifies.

What Evidence need not be proved

Judicial Notice Rule When Mandatory / Discretionary

a. Facts which a court shall or may take judicial notice. (Secs. 1 and 2, Rule 129, ROC)
b. Judicial admissions. (Sec. 4, Rule 129, ROC)
c. Conclusive presumptions
d. Disputable presumptions not disputed

Section 1. Judicial notice, when mandatory. – A court shall take judicial notice, without the introduction of
evidence, of the existence and territorial extent of states, their political history, forms of government and
symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the
political constitution and history of the Philippines, official acts of the legislative, executive and judicial
departments of the National Government of the Philippines, the laws of nature, the measure of time, and the
geographical divisions. (1a)

Section 2. Judicial notice, when discretionary. – A court may take judicial notice of matters which are of public
knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their
judicial functions. (2)

Section 3. Judicial notice, when hearing necessary. – During the pre-trial and the trial, the court, motu proprio
or upon motion, shall hear the parties on the propriety of taking judicial notice of any matter.
Before judgment or on appeal, the court, motu proprio or upon motion, may take judicial notice of any matter
and shall hear the parties thereon if such matter is decisive of a material issue in the case. (3a)

Distinguish mandatory judicial notice from discretionary judicial notice.

a. For mandatory judicial notice the court is compelled to take judicial notice because of the use of the
word "shall" in Sec. 1, Rule 129, ROC WHILE for discretionary judicial notice the court is not compelled
because of the use of the word "may" in Sec. 2, Rule 129, ROC.
b. Mandatory judicial notice takes place at the court's own initiative WHILE discretionary judicial notice
may take place at the court's initiative, or on request of a party.
c. Discretionary judicial notice requires a hearing and presentation of evidence WHILE mandatory judicial
notice does not require hearing and presentation of evidence.

Judicial Notice
When Mandatory – [EPF-SLAP-OL-MG]

- Existence and territorial extent of states

- Their political history
- Forms of government
- Symbols of nationality
- Law of nations
- Admiralty and maritime courts of the world and their seals
- Political constitution and history of the Philippines
- Official acts of the legislative, executive, and judicial departments of the Philippines
- Laws of nature
- Measure of time
- Geographical divisions

When Discretionary

- Matters of public knowledge

- Matters capable of unquestionable demonstration
- Matters which ought to be known to judges because of their judicial functions.

When Hearing is Necessary

- During the trial: the court, on its own initiative, or on request of a party, may announce its intention to take
judicial notice of ANY MATTER and allow the parties to be heard thereon.

- After the trial, and before judgment or on appeal: the proper court, on its own initiative or on request of a
party, may take judicial notice of any matter and allow the parties to be heard thereon if such MATTER IS
DECISIVE OF A MATERIAL ISSUE in the case.

Section 4. Judicial admissions. – An admission, oral or written, made by [the] party in the course of the
proceedings in the same case, does not require proof. The admission may be contradicted only by showing that
it was made through palpable mistake or that the imputed admission was not, in fact, made. (4a)

Judicial Admissions
 - -Definition: admissions, verbal or written, made by the party in the course of the proceedings in the
same case
- -Proof is not required.
- -How contradicted: ONLY by showing
 That it was made through palpable mistake or
 That no such admission was made

Having been amended, the original complaint lost its character as a judicial admission, which would have
required no proof and became merely any extrajudicial admission requiring a formal offer in order to be
admissible. (Torres vs. CA, 1984)

FORMS OF ADMISSIONS:

1. Implied admissions of allegations of usury and in actionable documents if not specifically denied under
oath (Sec. 11 & 8, Rule 8)
2. Admissions in pre-trial of civil cases and criminal cases (In criminal cases the admission must be
reduced in writing and signed by accused and counsel- Sec. 4 Rule 118)
3. Implied admissions in the modes of discovery (Depositions; Interrogatories- Rule 23; Failure to
specifically deny under oath w/in 15 days a Request for Admission in a pending case- Rule 26; )
4. Admissions in amended pleadings (Sec. 8 Rule 10) [N.B. Admissions in superseded pleadings are extra-
judicial admissions which must be proven. Dismissed pleadings are likewise extrajudicial admissions]
5. Plea of guilt in criminal case (N.B. A withdrawn plea of guilt is inadmissible, unlike in civil cases where a
withdrawn judicial admission is considered an extrajudicial admission)
6. Admissions by counsel are generally conclusive upon a client absent any gross negligence which
deprives counsel of due process of law or there is outright deprivation of property or liberty.
Note: Admissions in pleadings may not always be considered as judicial admissions because there are
hypothetical admissions in civil cases. (i.e. Affirmative defenses in an answer; Motion to dismiss,
where defendant admits allegations but sets up grounds such as lack of jurisdiction etc.)

Notes: 1. It is not essential that an admission is contrary to the interest of party at the time it is made. It is
enough that it be INCONSISTENT with the position a party takes in his pleadings or at trial.

2. Averments in pleadings not deemed admissions even if there is failure to make a specific denial: a)
Immaterial allegations; b) Conclusions and non-unltimate facts; c) Amount of unliquidated damages.

RULE 130 | RULES OF ADMISSIBILITY

A. OBJECT (REAL) EVIDENCE

Section 1. Object as evidence. – Objects as evidence are those addressed to the senses of the court. When an
object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (1)

- Evidence addressed to the senses of the court.

- When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the
court.
- - Where the object in question cannot be produced in court because it is immovable or
inconvenient to remove, the natural recourse is for the court to order an ocular inspection and go
to the object in its place and observe it there.
B. DOCUMENTARY EVIDENCE

Section 2. Documentary evidence. – Documents as evidence consist 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. Photographs include still pictures, drawings,
stored images, x-ray films, motion pictures or videos. (2a)

1. Original Document Rule

Section 3. Original document must be produced; exceptions. – When the subject of inquiry is the contents of a
document, writing, recording, photograph or other record, no evidence is admissible other than the original
document itself, except in the following cases:

(a) When the original is lost or destroyed, or cannot be produced in court, without bad faith on the part of
the offeror;

How Proved:

 Lay the predicate: Establish the due execution, that such original document existed.
 The document has been lost
(b) When the original is in the custody or under the control of the party against whom the evidence is
offered, and the latter fails to produce it after reasonable notice, or the original cannot be obtained by
local judicial processes or procedures;

How Proved:

 Demand has been made or there was refusal

 The latter fails to produce it after reasonable notice or the original cannot be obtained by local judicial
processes or procedures
(c) When the original consists of numerous accounts or other documents which cannot be examined in
court without great loss of time and the fact sought to be established from them is only the general
result of the whole;
(d) When the original is a public record in the custody of a public officer or is recorded in a public office;
and
(e) When the original is not closely-related to a controlling issue. (3a)

General Rule: When the subject of inquiry is the contents of a document, no evidence shall be admissible
other than the original document itself.

Exceptions:

1. When the original has been lost or destroyed, or cannot be produced in court, without bad faith
on the part of the offeror;
2. When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
3. When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from
them is only the general result of the whole; and
4. When the original is a public record in the custody of a public officer or is recorded in a
public office.
Section 4. Original of document. –

(a) An “original” of a document is the document itself or any counterpart intended to have the same effect
by a person executing or issuing it. An “original” of a photograph includes the negative or any print
therefrom. If data is stored in a computer or similar device, any printout or other output readable by
sight or other means, shown to reflect the data accurately, is an “original.”
(b) A “duplicate” is a counterpart produced by the same impression as the original, or from the same
matrix, or by means of photography, including enlargements and miniatures, or by mechanical or
electronic re-recording, or by chemical reproduction, or by other equivalent techniques which
accurately reproduce the original.
(c) A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to
the authenticity of the original, or (2) in the circumstances, it is unjust or inequitable to admit the
duplicate in lieu of the original. (4a)

2. Secondary Evidence

Section 5. When original document is unavailable. – When the original document has been lost or destroyed,
or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its
unavailability without bad faith on his or her part, may prove its contents by a copy, or by recital of its
contents in some authentic document, or by the testimony of witnesses in the order stated. (5a)

Section 6. When original document is in adverse party’s custody or control. – If the document is in the custody
or under the control of the adverse party, he or she must have reasonable notice to produce it.

If after such notice and after satisfactory proof of its existence, he or she fails to produce the document
secondary evidence may be presented as in the case of its loss. (6a)

Instances when secondary evidence may be introduced:

2.1.1 when original document is unavailable (lost, destroyed or cannot be produced in court) -

- The offeror, upon proof of (1) its execution or existence and (2) cause of its unavailability, without bad faith
on his part may prove its contents by:

= A copy

= A recital of its contents in some authentic document

= The testimony of witnesses.

The order stated must be followed.

2.1.2 When original document is in adverse party’s custody or control.

- If after reasonable notice is given to the adverse party to produce the document and after satisfactory proof
of the existence of the document is made, he fails to produce the document, secondary evidence may be
presented.

2.1.3 when original document is a public record.

- Its contents may be proved by a certified copy issued by the public officer in custody thereof.
2.2 A party who calls for the production of a document and inspects it is not obliged to offer it as evidence.

The voluminous character of the document must be established before evidence other than the original
may be introduced. (Compania Maritima vs. Allied Free Workers, 1977)

In the case where the original is in the custody of the adverse party, it is not necessary that it be in the
actual possession of the adverse party. It is enough that the circumstances show that the writing is in his
possession or under his control. Secondary evidence is admissible where the adverse party denies having it in
his possession. (Villa Rey Transit vs. Ferrer, 1968)

All duplicates or counterparts must be accounted for before using copies as evidence. (De Vera vs.
Aguilar, 1983)

Section 7. Summaries. – When the contents of documents, records, photographs, or numerous accounts are
voluminous and cannot be examined in court without great loss of time, and the fact sought to be established
is only the general result of the whole, the contents of such evidence may be presented in the form of a chart,
summary, or calculation.

The originals shall be available for examination or copying, or both, by the adverse party at a reasonable time
and place. The court may order that they be produced in court. (n)

Section 8. Evidence admissible when original document is a public record. – When the original of a document
is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified
copy issued by the public officer in custody thereof. (7)

Section 9. Party who calls for document not bound to offer it. – A party who calls for the production of a
document and inspects the same is not obliged to offer it as evidence. (8)

3. Parol Evidence Rule / Evidence aliunde / External Evidence

Section 10. Evidence of written agreements. – When the terms of an agreement have been reduced to writing,
it is considered as containing all the terms agreed upon and there can be, as between the parties and their
successors in interest, no evidence of such terms other than the contents of the written agreement.

However, a party may present evidence to modify, explain or add to the terms of the written agreement if he
or she puts in issue in a verified pleading:

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in interest after the execution
of the written agreement.

The term “agreement” includes wills. (9a)

Nature of parol evidence rule: It is not a rule of evidence but of substantive law.

It is part of the law of contracts, the law of negotiable instruments, and the law of wills. It is founded upon the
substantive rights of the parties. It was made part of the rules of evidence in order that it may be considered
in all its phases in one place.

Reasons for the parol evidence rule:

 1) When the parties have reduced their agreement in writing,
2) it is presumed that they have made the writing
3) the only repository and memorial of the truth, and
4) whatever is not found in the writing must be understood to have been waived or abandoned.

General Rule: 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, between the parties and their
successors in interest, NO evidence (testimonial or documentary) of such terms other than the contents of the
written agreement.

Exceptions: A party may present evidence to –

a. Modify,
b. Explain or
c. Add to

the terms of written agreement if he puts in issue in his pleading:

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b) The failure of the written agreement to express the true intent and agreement of the parties
thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in interest after the
execution of the written agreement.

What is the coverage of the parol evidence rule and what are the exceptions to the parol evidence rule ?

Covered. Only prior and contemporaneous agreements which are deemed to have been merged in the writing
conformably to the "integration of the agreement rule." (Woodhouse v. Halili, 93 Phil. 526)

Not covered.

1) Subsequent agreements, notwithstanding that such agreements may have the effect of adding to,
changing, modifying, or even altogether abrogating the contract of the parties as evidenced by the
writing.
2) Collateral agreements which although oral and contemporaneous with the writing are separate and
distinct agreements. (PNB v. Seeto, 91 Phil. 756)
3) It also does not apply if the issue revolves around fraud and false representation since they are
incidental to the execution and not to the integration. (Woodhouse vs. Halili, 1953)
4) It does not apply either when third parties are involved. (Lechugas vs. CA, 1986)

RATIONALE FOR PAROL EVIDENCE RULE: It is designed to give certainty to a transaction which has been
reduced to writing, because written evidence is much more certain and accurate than that which rests on
fleeting memory only. Moreover, it gives stability to written statements, removes the temptation and
possibility of perjury and prevents possible fraud.

REQUISITES FOR THE APPLICATION OF PER:

 1. There must be a valid contract;
2. The terms of the agreement must be reduced to writing. “Agreement” includes wills;
3. The dispute is between the parties or their successors-in-interest; and
4. There is dispute as to the terms of the agreement.

*The rule will not be applied if the party or privy of a party to the case is a complete stranger to the contract;
he is not bound by this rule and can introduce extrinsic evidence against the efficacy of the writing.;

QUESTION: Pedro filed a complaint against Lucio for the recovery of a sum of money based on a promissory
note executed by Lucio. In his complaint, Pedro alleged that although the promissory note says that it is
payable within 120 days, the truth is that the note is payable immediately after 90 days but that if Pedro is
willing, he may upon request of Lucio give the latter up to 120 days to pay the note. During the hearing,
Pedro testified that the truth is that the agreement between him and Lucio is for the latter to pay
immediately after ninety day’s time. Also, since the original note was with Lucio and the latter would not
surrender to Pedro the original note which Lucio kept in a place about one day’s trip from where he
received the notice to produce the note and in spite of such notice to produce the same within six hours
from receipt of such notice, Lucio failed to do so. Pedro presented a copy of such the note which was
executed at the same time as the original and with identical contents.

a. Over the objection of Lucio, will Pedro be allowed to testify as to the true agreement or contents of the
promissory note? Why?

ANSWER: Yes, because Pedro has alleged in his complaint that the promissory note does not express the true
intent and agreement of the parties. This is an exception to the parol evidence rule (Sec. 9[b] Rule 130).

b. Over the objection of Lucio, can Pedro present a copy of promissory note and have it admitted as valid
evidence in his favor? Why?

ANSWER: Yes, the copy in the possession of Pedro is a duplicate original and with identical contents (Sec. 4[b]
Rule 130). Moreover, the failure of Lucio to produce the original of the note is excusable because he was not
given reasonable notice, as requirement under the Rules before secondary evidence may be presented (Sec. 6
Rule 130).

Best evidence rule distinguished from parol evidence rule:

1) Under the best evidence rule, the issue is contents of a writing (Sec. 3, Rule 130, ROC) WHILE under the
parol evidence rule, there is no issue as to contents of a writing (Sec. 9, Rule 130, ROC);
2) Under the best evidence rule, secondary evidence is offered to prove the contents of a writing, which is
not allowed unless the case falls under any of the exceptions (Sec. 3, Rule 130, ROC) WHILE under the
parol evidence rule, the purpose of the offer of parol evidence is to change, vary, modify, qualify, or
contradict the terms of a complete written agreement, which is not allowed unless the case falls under
any of the exceptions. (Sec. 9, Rule 130, ROC)

Only the parties and their successors in interest, and not strangers may invoke the protection of the parol
evidence rule. (Sec. 9, Rule 130, ROC)

PAROLE EVIDENCE DISTINGUISHED FROM STATUTE OF FRAUDS

The Statute of Frauds requires that certain agreements be proved by writing or by some note or memorandum
thereof in order to be enforceable. On the other hand, the Parole Evidence Rule has nothing to do with the
manner of proving agreements. Its object is to prohibit alteration, change, modification, variation or
contradiction of the terms of a written agreement by “parol evidence”.

C. TESTIMONIAL EVIDENCE

1. Qualification of Witnesses

Section 21. Witnesses; their qualifications. – All persons who can perceive, and perceiving, can make known
their perception to others, may be witnesses. (20a)

Religious or political belief, interest in the outcome of the case, or conviction of a crime, unless otherwise
provided by law, shall not be a ground for disqualification. (20)

[Section 21. Disqualification by reason of mental incapacity or immaturity. – (Deleted)]

Section 22. Testimony confined to personal knowledge. – A witness can testify only to those facts which he or
she knows of his or her personal knowledge; that is, which are derived from his or her own perception. (36a)

Hearsay- if not based on personal knowledge.

Section 23. Disqualification by reason of marriage. – During their marriage, the husband or the wife cannot
testify against the other without the consent of the affected spouse, except in a civil case by one against the
other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants
or ascendants. (22a)

If in favor- testimony is admissible, testimony that is against is only not admissible.

If with consent- admissible.

If the marriage is already terminated/liquidated, the rule no longer applies.

General Rule: During their marriage, neither the husband nor the wife may testify for or against the other
without the consent of the affected spouse.

Exceptions:

- In a civil case by one against the other or,

- In a criminal case for a crime committed by one against the other or the latter's direct descendants
or ascendants.

The right to invoke this disqualification belongs to the spouse-party (Ortiz v. Arambulo, 8 Phil. 98) against or for
whom the testimony is being proferred. It may be waived

2) By a failure to interpose timely objection, or

3) By calling the other spouse as witness (Ibid., People v. Francisco, 78 Phil. 694)

The privilege could be invoked even if the spouse is testifying in favor of the spouse-party because damaging
testimony may be elicited during the cross-examination.
An accused can effectively “seal the lips” of a witness by marrying the witness. As long as a valid marriage is in
existence at the time of the trial, the witness-spouse cannot be compelled to testify—even where the crime
charged is against the witness’ person, and even though the marriage was entered into for the express
purpose of suppressing the testimony. (Marriage for convenience)

A son filed a complaint against his own father for recovery of property or some assets. The son asked her
mother to testify in his favor. SC held that there will be a violation of the spousal immunity rule.

Note: As long as there is a case INVOLVING the husband OR wife, the disqualification is absolute.

Section 24. Disqualification by reason of privileged communication[s]. – The following persons cannot testify
as to matters learned in confidence in the following cases:

(a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the
other as to any communication received in confidence by one from the other during the marriage
except in a civil case by one against the other, or in a criminal case for a crime committed by one
against the other or the latter’s direct descendants or ascendants.
- Every communication between spouses is presumed to be confidential. (Sexton v. Sexton, 129 Ia. 487;
Wigmore, Sec. 2336)
- Communications made in the presence of third parties are not confidential, unless the third person
may be considered as an agent of the spouses. (Floyd v. Miller, 61 Ind. 224)
- Communications overheard by third persons remain confidential as between the spouses, but the third
person who overheard may be called upon to testify. (People v. Carlos, 47 Phil. 626)
- Communications coming into the hands of third persons, whether legally or illegally, remain
confidential as between the spouses, but the third person may be called upon to testify. (People, and
Hammons, supra)
- But if the third person acquired knowledge of the communication by collusion and voluntary disclosure
on the part of either of the spouses, he thereby becomes an agent of such spouses so that the privilege
is claimable against him. (Ibid.)
- Communications intended for transmission to third persons are not confidential. (U.S. v. Antipolo, 37
Phil. 726)

Waiver of the marital privileged communication rule: The privilege is claimable by the spouse not called as
witness, so that it its waivable only by him or her; and it is waivable by any act of such spouse which might be
considered as an express or implied consent to the disclosure of the communication. (People v. Hayes, 140
N.Y. 484)

DIFFERENCE B/W PRIVILEGE AND MARITAL DISQUALIFICATION

o Privilege is applicable regardless of whether the spouses are parties or not

- Marital disqualification is applicable only when one or both spouses are parties
o The privilege applies to testimonies on confidential communication only
- Marital disqualification applies to testimony on any fact
o Marital disqualification ceases after dissolution of marriage
- -Privileged communication lasts even after the death of either spouse
o Even if the communication is not confidential, the marital disqualification may still be invoked
o Marital disqualification is more concerned with the consequences. If the rule is not there, perjury and
domestic disunity may result.
 - Privilege protects the hallowed confidences inherent in marriage b/w husband and wife and
therefore guarantees the preservation of the marriage and further the relationship between the
spouses as it encourages the disclosure of confidential matters without fear of revelation.

(b) An attorney or person reasonably believed by the client to be licensed to engage in the practice of
law cannot, without the consent of the client, be examined as to any communication made by the
client to him or her, or his or her advice given thereon in the course of, or with a view to, professional
employment, nor can an attorney’s secretary, stenographer, or clerk, or other persons assisting the
attorney be examined without the consent of the client and his or her employer, concerning any fact
the knowledge of which has been acquired in such capacity, except in the following cases:
(i) Furtherance of crime or fraud. If the services or advice of the lawyer were sought or obtained
to enable or aid anyone to commit or plan to commit what the client knew or reasonably
should have known to be a crime or fraud;
(ii) Claimants through same deceased client. As to a communication relevant to an issue between
parties who claim through the same deceased client, regardless of whether the claims are by
testate or intestate or by inter vivos transaction;
- there are two claimants from the lawyer’s client who is deceased. Communications relevant to an issue
between parties who claim through the same deceased client could be admitted as evidence as an
exception to the lawyer-client.
(iii) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty
by the lawyer to his or her client, or by the client to his or her lawyer;
- applicable on both lawyer and client. Communication relevant to an issue of breach of duty by the
lawyer to his or her client, or by the client to his or her lawyer.
(iv) Document attested by the lawyer. As to a communication relevant to an issue concerning an
attested document to which the lawyer is an attesting witness; or
- Applicable to document where the lawyer has attested to.
(v) Joint clients. As to a communication relevant to a matter of common interest between two [(2)]
or more clients if the communication was made by any of them to a lawyer retained or
consulted in common, when offered in an action between any of the clients, unless they have
expressly agreed otherwise.
- It is enough that the client reasonably believed that the person consulted is a lawyer.
- Communications may refer to anticipated litigations or may not refer to any litigation at all.
- Privilege does not extend to communications where the client’s purpose is the furtherance of a future
intended crime or fraud
(c) A physician, psychotherapist or person reasonably believed by the patient to be authorized to practice
medicine or psychotherapy cannot in a civil case, without the consent of the patient, be examined as to
any confidential communication made for the purpose of diagnosis or treatment of the patient’s
physical, mental or emotional condition, including alcohol or drug addiction, between the patient and
his or her physician or psychotherapist. 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.

A “psychotherapist” is:

 A person licensed to practice medicine engaged in the diagnosis or treatment of a mental or

emotional condition, or
 A person licensed as a psychologist by the government while similarly engaged.
- Limited only to Civil cases.
- - Any advice or treatment given by him or
 - - Any information which he may have acquired in attending such patient in a professional capacity,
which information was necessary to enable him to act in capacity, and which would blacken the
reputation of the patient;
- - This privilege belongs to the patient, so that it is only he that can claim or waive it. It is waivable
expressly or impliedly. It is impliedly waived like any other privilege rule. (Penn. Mutual Life Ins. Co. v.
Wiler, 100 Ind. 92)
- - The waiver may be by a contract as in medical or life insurance
- - When the patient answers questions on cross examination, there is waiver
- - Under Rule 28 ROC, the court may order a party to submit to a physical or mental examination, so
long as the mental or physical condition is in dispute. The party examined may request a report of the
examination. By doing so, he waives any privilege he may have in that action regarding the testimony
of every other person who has examined him in respect of the same examination.

This privilege does not apply when the doctor is presented as an expert witness and only hypothetical
problems were presented to him. (Lim vs. CA, 1992)

(d) A minister, priest or person reasonably believed to be so cannot, without the consent of the affected
person, be examined as to any communication or confession made to or any advice given by him or
her, in his or her professional character, in the course of discipline enjoined by the church to which the
minister or priest belongs.
- Should be in the course of discipline enjoined by the church to which the minister or priest belongs.
Communication relation to in furtherance of crime are not exceptions.
- Any confession made to or
- Any advice given by him in his professional character in the course of discipline enjoined by the church
to which the minister or priest belongs

(e) A public officer cannot be examined during or after his or her tenure as to communications made to
him or her in official confidence, when the court finds that the public interest would suffer by the
disclosure.

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. (24a)

2. Testimonial Privilege

Section 25. Parental and filial privilege. – No person shall be compelled to testify against his or her parents,
other direct ascendants, children or other direct descendants, except when such testimony is indispensable
in a crime against that person or by one parent against the other. (25a)

- Parental and filial testimony dies not prohibit voluntary testimony or compelled testimony against
relatives by affinity or collateral relatives.
- It is believed that adopted and adopter are covered by the parental and filial testimonial privilege rule
but only insofar as the parent and child is concerned. It does not extend to the direct ascendants of the
adopter because the adoptive relation is between the adopter and the adopted only. The reason for
this opinion is the rationale behind the privilege, which is to preserve harmonious relations between
 parent and child which could be ruptured through testifying in court. Furthermore, perjury may result
because the parent or the child may give false testimony to protect the other.

Section 26. Privilege relating to trade secrets. – A person cannot be compelled to testify about any trade
secret, unless the non-disclosure will conceal fraud or otherwise work injustice. When disclosure is directed,
the court shall take such protective measure as the interest of the owner of the trade secret and of the parties
and the furtherance of justice may require. (n)

3. Admissions and Confessions

Section 27. Admission of a party. – The act, declaration or omission of a party as to a relevant fact may be
given in evidence against him or her. (26a)

Section 28. Offer of compromise not admissible. – In civil cases, an offer of compromise is not an admission of
any liability, and is not admissible in evidence against the offeror. Neither is evidence of conduct nor
statements made in compromise negotiations admissible, except evidence otherwise discoverable or offered
for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay,
or proving an effort to obstruct a criminal investigation or prosecution.

In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be
compromised, an offer of compromise by the accused may be received in evidence as an implied admission of
guilt.

A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense is not admissible
in evidence against the accused who made the plea or offer. Neither is any 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, admissible.

An offer to pay[,] or the payment of medical, hospital or other expenses occasioned by an injury[,] is not
admissible in evidence as proof of civil or criminal liability for the injury. (27a)

Good Samaritan rule- not an admission of liability either in a civil or criminal case

The Good Samaritan Rule: An offer to pay or the payment of medical, hospital or other expenses occasioned
by an injury is not admissible in evidence as proof of civil or criminal liability for the injury.

It has long been held that in cases of public crimes, the accused is permitted to show that the offer was not
made under a consciousness of guilt but merely to avoid the inconvenience of imprisonment of for some other
reason which would justify a claim by the accused that the offer was not in truth an admission of his guilt or an
attempt to avoid the legal consequences which would ordinarily ensue therefrom. (People vs. Godoy, 1995)

A plea of forgiveness may be considered as analogous to an attempt to compromise. (People vs. De Guzman,
1996)

An offer to compromise does not require that a criminal complaint be first filed before the offer can be
received as evidence against the offeror. (People vs. Yparriguirre, 1997)

Admission

- Any act, declaration or omission of a party as to a relevant fact may be given in evidence against him.
Such admission may be received in evidence not only against the party who made it or his successors-in-
interest but also against third persons. (Viacrucis vs. CA, 1986)

The silence of an accused under custody or his failure to deny statements by another implicating him in a crime
cannot be considered as a tacit confession of his participation in the commission of the crime. (People vs.
Alegre, 1979)

Extra-judicial Confession vs. Admission

A confession, as distinguished from admission, is a declaration made at any time by a person, voluntarily and
without compulsion or inducement, stating or acknowledging that he had committed or participated in the
commission of a crime.
The term, admission, on the other hand, is usually applied in criminal cases to statements of fact by the
accused which do not directly involve an acknowledgment of the guilt of the accused or of criminal intent to
commit the offense with which he is charged. (U.S. v. Corrales, 28 Phil. 365)

Section 29. Admission by third party. – The rights of a party cannot be prejudiced by an act, declaration, or
omission of another, except as hereinafter provided. (28)

Res inter alios acta alteri nocere non debet or res inter alios acta Rule

(First Part of Rule) Statements made or matters accomplished between two parties cannot prejudice a third
party. (Blanza v. Arcangel, 21 SCRA 4)

The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter
provided. (Sec. 28, Rule 130, ROC)

Exceptions to res inter alios acta:

1) When there is a rational similarity or resemblance between the conditions giving rise to he fact offered
and the circumstances surrounding the issue or fact to be proved. (Cruz, et al., v. Court of Appeals, et
al., G.R. No. 126713, prom. July 27, 1998)
2) In actions based on fraud and deceit, because it sheds light on the state of mind or knowledge of a
person; it provides insight into such person's motive or intent; it uncovers a scheme, design or plan; or
it reveals a mistake. (Cruz, supra)
3) (Vicarious Admissions)- The rights of a party may be prejudiced by the act, declaration or omission of
another when between the party making the admission and against whom it is offered there exists a
relation of:
a) partnership;
b) agency;
c) joint interest;
d) conspiracy; or
e) privity.

Exceptions to the rule that extrajudicial statements of an accused implicating a co-accused may not be
utilized against the latter:
 (1) the co-accused impliedly acquiesced in or adopted the confession by not questioning its truthfulness;
(2) the accused persons voluntarily and independently executed identical confessions without collusion
and without contradiction by the others present;
(3) the accused admitted the facts after being apprised of the confession;
(4) if they are charged as co-conspirators of the crime which was confessed by 1 of the accused and the
confession is used only as a corroborating evidence;
(5) the confession is used as circumstantial evidence to show the probability of participation by the co-
conspirator;
(6) the confessant testified for his co-defendant;
(7) the co-conspirator’s extrajudicial confession is corroborated by other evidence on record. (People vs.
Raquel, 1996)

Section 30. Admission by co-partner or agent. – The act or declaration of a partner or agent authorized by the
party to make a statement concerning the subject, or within the scope of his or her authority[,] and during the
existence of the partnership or agency, may be given in evidence against such party after the partnership or
agency is shown by evidence other than such act or declaration. The same rule applies to the act or
declaration of a joint owner, joint debtor, or other person jointly interested with the party. (29a)

- Synonymous to conspiracy, where the act of one is the act of all.

- Exception to the rule of Res Inter alios acta
- Prove first the existence of such agency, then the act of one is the act of all.

Section 31. Admission by conspirator. – The act or declaration of a conspirator in furtherance of the conspiracy
and during its existence may be given in evidence against the co-conspirator after the conspiracy is shown by
evidence other than such act of declaration. (30a)

Section 32. Admission by privies. – Where one derives title to property from another, the latter’s act,
declaration, or omission, in relation to the property, is evidence against the former [if done] while the latter
was holding the title. (31a)

Section 33. Admission by silence. – 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 or her to do so, may be given in evidence
against him or her. (32a)

Admission by silence.

b. An act or declaration made

1) in the presence and
2) within the hearing or
3) observation
c. of a party who does or says nothing
d. when the act or declaration
1) is such as naturally to call for action or comment if not true, and
2) when proper and possible for him to do so,
e. may be given in evidence against him. (Sec. 32, Rule 130, ROC arrangement and numbering supplied)

Exceptions to the rule on admission by silence or instances where there is no admission by silence :
 1) Where no good reason exists for the party to comment on the act or declaration (Veil v. Strong, 10 Vt.
455), as when the act or declaration was not specifically directed to the party who remained silent. (80
A.L.R., Anno., 1272)
2) When the party had no opportunity to comment on the act or declaration. (People v. Ranario, 49 Phil.
220)
3) Where the act or declaration was made in the course of an official investigation. (People v. Tia Fong,
98 Phil. 609)
4) When silence is upon advice of counsel. (People v. Kozlowski, 115 A.L.R. 1505)

Section 34. Confession. – The declaration of an accused acknowledging his or her guilt of the offense charged,
or of any offense necessarily included therein, may be given in evidence against him or her. (33a)

- Confession is the acknowledgement of guilt.

General rule on admissibility of confession: A confession is admissible only against the accused who made it
and not against his co-accused, for as against the latter, the confession would be hearsay and res inter alios
acta. (People v. Talledo, 85 Phil. 533)

Exceptions: when a confession is admissible against co-accused:

1) When the confession of an accused implicating his co-accused is made judicially at a joint trial (U.S. v.
Macamay, 36 Phil. 893) or when the extrajudicial statements implicating a co-accused are repeated in
open court (People v. Ola, G.R. No. L-47147, July 3, 1987), because the co-accused as a chance to cross-
examine.
2) When the offer in evidence of an extrajudicial confession against a co-accused is not objected to.
(People v. Atienza, 86 Phil. 576)
3) When the co-accused against whom an extrajudicial confession is offered had, by his acts, conducts
and declarations adopted he confession as his own. (People v. Atienza, supra; People v. Orencia, 47
Phil. 970)
4) Where several accused, without collusion, made extrajduicial confessions which are identical in
essential details and corroborated by other evidence, such confession is admissible against the others.
(People v. Pelonia, L-14624, July 24, 1960)
5) The confession of a conspirator is admissible against his co-conspirator provided it was made during
the existence of the conspiracy. (Sec. 30, Rule 130, ROC; People v. Ramirez, L-5875, May 15, 1953)
6) When the recitals in the extrajudicial confession of an accused is corroborated in its important details
by other proofs in the record, it may be admitted against the other accused. (People v. Villanueva, L-
12687, July 31, 1962)

Extrajudicial confessions identical in material respects (also known as interlocking confessions) admissible
against all declarants:

1) As circumstantial evidence. Extrajudicial confessions independently made without collusion and are
identical with each other in their material respects and confirmatory of the other are admissible as
circumstantial evidence against co-accused implicated therein to show the probability of the latter's actual
participation in the commission of the crime. (People v. Encipido, et al., 146 SCRA 492)
2) As corroborative evidence. They are admissible as corroborative evidence against the other accused, if it is
clear from other facts and circumstances presented that persons other than the declarants themselves
participated in the commission of the crime charged and proved. (Ibid.)

They are what is commonly known as interlocking confession and constitute an exception to the general rule
that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof.
(Ibid.)

The invocation of amnesty is in the nature of a plea of confession and avoidance, which means that the
pleader admits the allegations against him, but disclaims liability therefor on account of intervening facts
which, if proved, would bring the crime charged within the scope of the amnesty proclamation. (People v.
Salig, et al., 133 SCRA 69 citing Vera v. People, 7 SCRA 153)

4. Previous Conduct [a]s Evidence

Section 35. Similar acts as evidence. – Evidence that one did or did not do a certain thing at one time is not
admissible to prove that he or she did or did not do the same or similar thing at another time; but it may be
received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and
the like. (34a)

Section 36. Unaccepted offer. – An offer in writing to pay a particular sum of money or to deliver a written
instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production
and tender of the money, instrument, or property. (35)

[Section 36. Testimony generally confined to personal knowledge; hearsay excluded. (Transposed to Sec. 22.
Testimony confined to personal knowledge.)]

5. Hearsay

Section 37. Hearsay. – Hearsay is a statement other than one made by the declarant while testifying at a trial
or hearing, offered to prove the truth of the facts asserted therein. A statement is (1) an oral or written
assertion or (2) a non-verbal conduct of a person, if it is intended by him or her as an assertion. Hearsay
evidence is inadmissible except as otherwise provided in these Rules.

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is

(b) 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;
(c) 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; or
(d) one of identification of a person made after perceiving him or her. (n)

Hearsay- statement made out of court. Declarant does not testify in court, such statement is considered as
hearsay. Not subject to cross-examination.

- once you are making declaration in court, it is no longer hearsay.

- The hearsay evidence rule applies also to affidavits when the supposed affiant never identified the
affidavit and there was no opportunity for the prosecution to cross-examine him/her. (People vs.
 Brioso, 1971).
- The testimony of a witness regarding a statement made by another person, if intended to establish the
truth of the facts asserted in the statement is clearly hearsay evidence. It is otherwise if the purpose is
merely to establish the fact that the statement was made, or the tenor of such statement. (People vs.
Cusi, 1965)
- The testimony of a witness on the confession made to him by the accused is not hearsay. He is
testifying to a fact which he knows of his personal knowledge (was testifying to the fact that the
accused told him that he stabbed the victim) and not to the truth of the statement of the accused.
(People vs. Gaddi, 1989)

Rationale behind the non-admissibility of hearsay evidence:

1) A witness can testify only to those facts which he knows of his own knowledge; and
2) To preserve the right of parties to cross-examine the original witness or person claiming to have
knowledge of the transaction or occurrence. (People v. Pagkaliwagan, 76 Phil. 457)

The right to cross-examine he adverse party's witnesses is essential in the administration of justice for it is the
only means of testing the credibility of witnesses and their testimony, and this right is not available in respect
of hearsay evidence since he declarant is not in court. (Donnelly v. U.S., 228 U.S. 243)

Principle of Independently Relevant Statements

- Under this principle regardless of the truth or falsity of a statement, the fact that such statements have
been made is relevant. The hearsay rule does not apply, and the statements are admissible as
evidence. Evidence as to the making of such statement is not secondary but primary, for the statement
itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact.
- Independent relevant statements are hearsay in character but not legal hearsay, hence they are not
considered as exceptions to the hearsay rule.

6. Exceptions [t]o [t]he Hearsay Rule

Section 38. Dying declaration. – The declaration of a dying person, made under the consciousness of an
impending death, may be received in any case wherein his or her death is the subject of inquiry, as evidence of
the cause and surrounding circumstances of such death. (37a)

- Declaration was made under the consciousness of an impending death

- Declaration refers to cause and surrounding circumstances of the death of the declarant
- Declaration may be received in any case wherein declarant’s death is the subject of inquiry (In one
case. The husband was shot and wife was stabbed. The wife died instantly. The husband was brought
to the hospital and made a statement that it was X who stab her wife. The husband then died. The
statement is not a dying declaration because it pertains to the wife)
- The declarant must be competent as a witness (What if declarant is proved to be a congenital liar? Still
this exception may apply, because he is not disqualified from testifying in court if he were alive)
- The declarant actually died, otherwise, the declaration may be admitted as part of the res gestae and
not as a dying declaration

APPLICABILITY: Both Civil and Criminal. [Criminal: Only those which involve death, homicide, murder,
parricide, robbery with homicide, rape with homicide]

Mere gesture of dying victim inconclusive: The gesture of a dying woman in pointing to a direction, when
asked for the identity of her assailant, is too vague to be given such probative value in determining the
culpability of the accused.

REASON: Unlike an oral or a written declaration, a simple gesture of the hand unaccompanied by words, is
open to various interpretations by the witness who testifies to its existence. Thus, the evidence comes to the
court couched in the witness' second hand perception and possibly, imbued with his personal meanings and
biases. This is what makes hearsay evidence objectionable. The second hand evidence is placed before the
court without the benefit of cross-examination by the party against whom it is brought, nor of any other
means of assessing the competence and credibility of the source. (People v. Ola, G.R. No. L-47147, July 3,
1987)

CASE: The crime charged is rape with homicide. The victim before death tells to the police investigator/doctor:
“I was raped.” [This is not a dying declaration, because the statement has nothing to do with the cause and
circumstances surrounding the death. But this may be admitted as part of res gestae]

Section 39. Statement of decedent or person of unsound mind. – In an action against an executor or
administrator or other representative of a deceased person, or against a person of unsound mind, upon a
claim or demand against the estate of such deceased person or against such person of unsound mind, where a
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 person or before the person became of unsound mind, any
statement of the deceased or the person of unsound mind, may be received in evidence if the statement was
made upon the personal knowledge of the deceased or the person of unsound mind at a time when the
matter had been recently perceived by him or her and while his or her recollection was clear. Such statement,
however, is inadmissible if made under circumstances indicating its lack of trustworthiness. (23a)

- this is an exception because the person who gave the statement is already dead.

- Sometime called the “Survivor’s disqualification rule”

Parties or assignor of parties to a case, or persons in whose behalf a case is prosecuted, against

- An executor or
- Administrator or
- Other representative

of a deceased person, or against a person of unsound mind,

upon a claim or demand against the estate of such deceased person or against such person of unsound mind,
cannot testify as to any matter of fact occurring BEFORE the death of such deceased person or before such
person became of unsound mind.

Exceptions to the survivor’s disqualification rule:

1) Ordinary witnesses, who are not the plaintiff, assignor of plaintiff, or person in whose behalf the case is
prosecuted may testify. (Francia v. Hipolito, 93 Phil. 968)
2) When the plaintiff is a corporation, the officers or stockholders thereof are not disqualified. (Lichauco
v. Atlantic Gulf, et c., 84 Phil. 330)
 3) When there is an imputation of fraud against the deceased, the plaintiff is not barred from testifying to
such fraud. (Go Chi Gun v. Co Cho, 96 Phil. 622)
4) When the plaintiff is the executor, administrator or legal representative of the deceased, or the person
of unsound mind, the defendant or defendants are free to testify against the plaintiff. (Tongco v.
Vianzon, 50 Phil. 698)
5) When the defendant or defendants, though heirs of the deceased, are sued in their personal and
individual capacities, the plaintiff may testify against them. (Go Chi Gun v. Co Cho, 96 Phil. 622)
6) When the survivor's testimony refers to a negative fact. (Mendezona v. vda. de Goitia, 54 Phil. 557)
7) When the survivor's testimony is favorable to the deceased. (Icard v. Marasigan, 71 Phil. 419)
8) The adverse party is competent to testify to transactions or communications with the deceased or
incompetent person which were made with an agent of such person in cases in which the agent is still
alive and competent to testify. But the testimony of the adverse party must be confined o those
transactions or communications which were had with the agent. (Goni, et al., v. Court of Appeals, et
al., 144 SCRA 231)

How protection of the dead man’s statute is waived:

1) By not objecting to plaintiff's testimony on prohibited matters. (Marella v. Reyes, 12 Phil. 1)

2) By cross-examining the plaintiff on prohibited matters. (Tongco v. Vianzon, 50 Phil. 698)
3) By calling witnesses to testify on prohibited matters. (Arroyo v. Azur, 76 Phil. 493)
4) When the plaintiff's deposition is taken by the representative of the estate or when counsel for the
representative cross-examined the plaintiff as to matters occurring during the deceased's lifetime.
(Goni, et al., v. Court of Appeals, et al., 144 SCRA 231)

Section 40. Declaration against interest. – The declaration made by a person deceased or unable to testify
against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far
contrary to the declarant’s own interest that a reasonable person in his or her position would not have made
the declaration unless he or she believed it to be true, may be received in evidence against himself or herself
or his or her successors in interest and against third persons. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement. (38a)

By whom made: a person deceased, or unable to testify, against the interest of the declarant

Subject of declaration/act: the fact asserted in the declaration was at the time it was made so far contrary to
declarant's own interest, that a reasonable man in his position would not have made the declaration unless he
believed it to be true

Against whom received: such may be received in evidence against himself or his successors in interest and
against third persons.

REQUISITES:

a. The declaration is made by

1) a person deceased, or
2) unable to testify [i.e. in foreign country or physical/mental impairments]
b. against the interest of the declarant, [declarant MUST KNOW that it is against his interest]
c. if the fact asserted in the declaration
1) was at the time it was made
 2) so far contrary to declarant's own interest,
3) that a reasonable man in his position
a) would not have made the declaration
b) unless he believed it to be true. (Sec. 38, Rule 130, ROC)

Declaration against interest distinguished from admission:

1) An admission is not necessarily against the interest of the admitter WHILE the declaration must be
against the declarant's own interest(penal, proprietary, financial)
2) An admission may be received even if the admitter is alive WHILE the declarant must be dead or is
unable to testify;
3) An admission may be received in evidence only against the admitter and those identified with him in
legal interest WHILE the declaration may be received even against third persons. (Smith v. Moore, 142
N.C. 277)

Inability to testify = either dead, mentally incapacitated or physically incompetent. Mere absence from the
jurisdiction does not make him ipso facto unavailable. Fuentes vs. CA (1996)

CASE:

People v. Holgado

Jose was killed. Pedro admitted that he was the one who killed Jose. Unfortunately, Pedro also died. The
prosecutor filed an information charging Juan with homicide of Jose. The defense presented a witness who
heard Pedro say that he was the one who killed Jose. SC held that Pedro’s declaration is a declaration against
interest. It is therefore admissible to show that the accused did not commit the crime charged.

Section 41. Act or declaration about pedigree. – The act or declaration of a person deceased or unable to
testify, in respect to the pedigree of another person related to him or her by birth[,] adoption, or marriage or,
in the absence thereof, with whose family he or she was so intimately associated as to be likely to have
accurate information concerning his or her pedigree, may be received in evidence where it occurred before
the controversy, and the relationship between the two [(2)] persons is shown by evidence other than such act
or declaration. The word “pedigree” includes relationship, family genealogy, birth, marriage, death, the dates
when and the places where these facts occurred, and the names of the relatives. It embraces also facts of
family history intimately connected with pedigree. (39a)

- Ante litem mortam (before the controversy)

- By whom made: person deceased, or unable to testify
- Subject of declaration/act: pedigree of another person related to him by birth or marriage
- When admissible: occurred before the controversy, and the relationship between the two persons is
shown by evidence other than such act or declaration.
- Pedigree - includes relationship, family genealogy, birth, marriage, death, the dates when and the
places where these fast occurred, and the names of the relatives. It embraces also facts of family
history intimately connected with pedigree.

Section 42. Family reputation or tradition regarding pedigree. – The reputation or tradition existing in a family
previous to the controversy, in respect to the pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member of the family, either by consanguinity[,] affinity,
or adoption. Entries in family bibles or other family books or charts, engraving on rings, family portraits and
the like, may be received as evidence of pedigree. (40a)

- Subject of exception: reputation or tradition existing in a family previous to the controversy, in respect
to the pedigree of any one of its members, may be received in evidence if the witness testifying
thereon be also a member of the family, either by consanguinity or affinity.
- -Entries in family bibles or other family books or charts, engravings on rings, family portraits and the
like, may be received as evidence of pedigree.

Section 43. Common reputation. – Common reputation existing previous to the controversy, as to boundaries
of or customs affecting lands in the community and reputation as to events of general history important to the
community, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions
in public places may be received as evidence of common reputation. (41a)

What are admissible?

- Common reputation existing previous to the controversy, respecting facts of public or general interest > 30
years old, or respecting marriage or moral character, may be given in evidence.

- Monuments and inscriptions in public places may be received as evidence of common reputation

Note: When it comes to presentation of evidence concerning the good or bad moral character, the only
evidence admissible is evidence of COMMON REPUTATION. So if character evidence is allowed a litigant
cannot present proof that he is of good moral character.

Principle of NEGATIVE REPUTE

If in a community nothing good or bad is heard about a particular person, the presumption is that he is really a
good person, because that flows from the established principle in substantive law that everyone is acting in
good faith.

Section 44. Part of the res gestae. – Statements made by a person while a startling occurrence is taking place
or immediately prior or subsequent thereto[,] under the stress of excitement caused by the occurrence with
respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part
of the res gestae. (42a)

What are admissible as part of the res gestae:

- Statements made by a person while a starting occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof
- Statements accompanying an equivocal act material to the issue and giving it legal significance

TWO CONCEPTS:

1. Spontaneous Statements
2. Statements accompanying Equivocal Acts- Equivocal means ambiguous; capable of different
interpretations.

DYING DECLARATION vs. RES GESTAE

  Time when statements made:
o DYING DECLARATION- statements must be made after the injury has been inflicted upon the
applicant.
o RES GESTAE- in so far as startling occurrence is concerned, the statements could be made prior
or simultaneous with or after the startling occurrence.
 Death of declarant:
o DYING DECLARATION- declarant must die
o RES GESTAE- no need for declarant to die
 Declarant:
o DYING DECLARATION- must be the victim
o RES GESTAE- anybody

EXAMPLE: a) SPONTANEOUS STATEMENT: X barged into the house of Y, tied her to a chair and robbed her. X
brought Y’s maid to a bedroom and raped her. Y could hear the maid crying: “Huwag! Maawa ka sa akin!”.
When X fled, Y with the maid rushed to the police station and told the police what happened. The maid told
the police that despite her pleas X still raped her. The police noticed that the maid was hysterical and on the
verge of collapse. X was charged with robbery with rape. During the trial the maid could no longer be located.
The prosecution presents the policeman to testify on what the maid told him. [The testimony would be
hearsay but as an exception to the hearsay rule. The statements made by the maid fall within the res gestae
rule]

b) EQUIVOCAL/VERBAL ACTS: A witness testifies on the stand for the plaintiff in a collection case where the
defendant denies having borrowed P10,000 from the plaintiff. The debt is not evidenced by a promissory note
because plaintiff claims that defendant had orally borrowed money from him in the past and had always paid.
This time he refuses to pay. The witness testifies that one year ago he saw the plaintiff give money to the
defendant. And that he heart the plaintiff said that: “Here’s the money you are borrowing from me.” Further,
he said that he heard the defendant say: “Thank you, I will pay one year after.” [Here the equivocal act of
handing the money was given significance by the statement of the plaintiff]

Case:

PEOPLE vs. CLOUD (265 SCRA 472) Concept of independently relevant statements and res gestae applied
simultaneously. [N.B. dying declaration may likewise be applied simultaneously with independently relevant
statement]

Josephine Aguilar was at the emergency room of a hospital to have some stitches removed from her
daughter’s head when she saw a boy being carried by a man, followed by an old woman who was shouting
hysterically. The boy’s face was swollen and bruised and his body covered with dry blood. The old woman,
apparently the boy’s grandmother, cried and repeatedly screamed. “Pinatay siya ng sariling ama!”. The old
woman told the people inside the emergency room that the boy’s father had beaten him up, tied his hands,
and stabbed him.

Ruling of SC: Insofar as the statements of Rufina Alconyes(old woman) are concerned, they are admissible as
part of the res gestae, they having been caused by and did result from the startling, if not gruesome,
occurrence that she witnessed; and these were shortly thereafter uttered by her with spontaneity, without
prior opportunity to contrive the same.

The report made thereof by Josephine Aguilar is not hearsay since she was actually there and personally heard
the statements of Alconyes which she recounted in court. Her account of said statements of Alconyes are
admissible under the doctrine of independently relevant statements, with respect to the tenor and not the
truth thereof, since independent of the truth or falsity of the same they are relevant to the issue on the cause
of the death of the victim.

Section 45. Records of regularly conducted business activity. – A memorandum, report, record or data
compilation of acts, events, conditions, opinions, or diagnoses, made by writing, typing, electronic, optical or
other similar means at or near the time of or from transmission or supply of information by a person with
knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular
practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means,
all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the
rule on hearsay evidence. (43a)

When made: Entries made at, or near the time of transactions to which they refer

By whom made: by a person deceased, or unable to testify, who was in a position to know the facts therein
stated,

Treatment of such evidence: prima facie evidence, if such person made the entries in his professional capacity
or in the performance of duty and in the ordinary or regular course of business or duty.

Section 46. Entries in official records. – Entries in official records made in the performance of his or her duty by
a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are
prima facie evidence of the facts therein stated. (44a)

When made: Entries made at, or near the time of transactions to which they refer.

By whom made: by a person deceased, or unable to testify, who was in a position to know the facts therein
stated,

Treatment of such evidence: prima facie evidence, if such person made the entries in his professional capacity
or in the performance of duty and in the ordinary or regular course of business or duty.

The report submitted by a police officer in the performance of his duties on the basis of his own
personal observation of the facts reported, may properly be constituted as an exception. (Caltex vs. Africa,
1966)

Entries in a police blotter are not conclusive proof of the truth of such entries. (People vs. Cabuang,
1993)

Section 47. Commercial lists and the like. – Evidence of statements of matters of interest to persons engaged
in an occupation contained in a list, register, periodical, or other published compilation is admissible as
tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons
engaged in that occupation and is generally used and relied upon by them therein. (45)
Section 48. Learned treatises. – A published treatise, periodical or pamphlet on a subject of history, law,
science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial
notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or
pamphlet is recognized in his or her profession or calling as expert in the subject. (46a)

Section 49. Testimony or deposition at a former proceeding. – The testimony or deposition of a witness
deceased or out of the Philippines or who cannot, with due diligence, be found therein, or is unavailable or
otherwise unable to testify, given in a former case or proceeding, judicial or administrative, involving the same
parties and subject matter, may be given in evidence against the adverse party who had the opportunity to
cross-examine him or her. (47a)

By whom made: a witness deceased or unable to testify,

When given: in a former case or proceeding, judicial or administrative, involving the same parties and subject
matter,

When admissible: may be given in evidence against the adverse party who had the opportunity to cross-
examine him.

“Unable to testify” refers to an inability proceeding from a grave cause almost amounting to death as
when the witness is old and has lost the power of speech. (Tan vs. CA, 1967)

Section 50. Residual exception. – A statement not specifically covered by any of the foregoing exceptions,
having equivalent circumstantial guarantees of trustworthiness, is admissible if the court determines that (a)
the statement is offered as evidence of a material fact; (b) the statement is more probative on the point for
which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(c) the general purposes of these [R]ules and the interests of justice will be best served by admission of the
statement into evidence. However, a statement may not be admitted under this exception unless the
proponent makes known to the adverse party, sufficiently in advance of the hearing, or by the pre-trial stage
in the 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 the particulars of it, including the name and address
of the declarant. (n)

Extrajudicial confession may be admitted in evidence so long as it is freely given and according to the ruled of
court.

7. Opinion Rule

Section 51. General rule. – The opinion of a witness is not admissible, except as indicated in the following
sections. (48)

Section 52. Opinion of expert witness. – The opinion of a witness on a matter requiring special knowledge,
skill, experience, training or education, which he or she is shown to possess, may be received in evidence.
(49a)

NOTE: An expert witness may base his opinion either on the first-hand knowledge of the facts or on the basis
of hypothetical questions where the facts are presented to him hypothetically and on the assumption that
they are true, formulates his opinion on such hypothesis.
The probative force of the testimony of an expert does not lie in a mere statement of his theory or opinion,
but rather in the aid that he can render to the courts in showing the facts which serve as a basis for his
criterion and the reasons upon which the logic of his conclusion is founded.

QUESTION: In a case where the issue involves forgery, two expert witness were presented by the plaintiff,
the NBI official and a handwriting expert from the PNP. The NBI official testified that the signatures in the
deed of sale and the other sample signatures are the same. However, the PNP handwriting expert declared
that the person who signed are not the same person. The lower court gave credit and based the ruling on
the testimony of the PNP handwriting expert on the fact that the said witness has better credentials than
the NBI witness. Is the ruling valid, because of the fact that the court based the ruling on the credentials?

ANSWER: NO. While credentials of an expert witness play a factor in the evidentiary and persuasive weight of
his testimony, the same cannot be the sole factor in determining its value. The judge must conduct his own
independent examination of the signatures under scrutiny.

* Opinions of handwriting experts are not binding upon courts, especially when the question involved is mere
handwriting similarity or dissimilarity, which can be determined by a visual comparison of specimens of the
questioned signatures with those of the currently existing ones.

Section 53. Opinion of ordinary witnesses. – The opinion of a witness, for which proper basis is given, may be
received in evidence regarding –

(b) [T]he identity of a person about whom he or she has adequate knowledge;
(c) A handwriting with which he or she has sufficient familiarity; and
(d) The mental sanity of a person with whom he or she is sufficiently acquainted.

The witness may also testify on his or her impressions of the emotion, behavior, condition or appearance of a
person. (50a)

QUESTION: At Nolan’s trial for possession and use of the prohibited drugs, known as “shabu” his girlfriend
Kin, testified that on a particular day, she would see Nolan very prim and proper, alert and sharp, but that
three days after, he would appear haggard, tired and overly nervous at the slightest sound he would hear.
Nolan objects to the admissibility of Kim’s testimony on the ground that Kim merely stated her opinion
without having been first qualified as expert witness. Should you as a judge exclude the testimony of Kim?
(1994 Bar)

ANSWER: No, the testimony of Kim should not be excluded. Even though Kim is not an expert witness, Kim
may testify on her impressions of the emotion, behavior, condition or appearance of a person

- There is no precise requirement as to the mode in which skill or experience shall have been acquired.
Scientific study and training are not always essential to the competency of a witness as an expert.
Knowledge acquired by doing is no less valuable than that acquired by study. (Dilag Co. vs. Merced,
1949)
- Polygraph test has not as yet attained scientific acceptance as a reliable and accurate means of
ascertaining truth or deception. (People vs. Adoviso, 1999)
- Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the
subject of their testimony, but are generally regarded as purely advisory; the courts may place whatever
weight they choose upon such testimony and may reject it, if they find that it is inconsistent with the
facts in the case or otherwise unreasonable.(Punzalan v. Commission on Elections, et al., G.R. No.
126669)
 - Testimony of handwriting expert not indispensable to COMELEC. Handwriting experts, while probably
useful, are not indispensable in examining or comparing handwriting; this can be done by the COMELEC
itself. It was ruled by the Supreme Court that evidence aliunde is not allowed to prove that a ballot is
marked, an inspection of the ballot itself being sufficient. ((Punzalan v. Commission on Elections, et al.,
G.R. No. 126669)

8. Character Evidence

Section 54. Character evidence not generally admissible;exceptions. – 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, except:

(a) In Criminal Cases:

(1) The character of the off ended party may be proved if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.

(2) The accused may prove his or her good moral character[,] pertinent to the moral trait involved in the off
ense charged. However, the prosecution may not prove his or her bad moral character unless on rebuttal.

(b) In Civil Cases:

Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of
character involved in the case.

(c) In Criminal and Civil Cases:

Evidence of the good character of a witness 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 testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is
allowable into relevant specific instances of conduct.

In cases in which character or a trait of character of a person is an essential element of a charge, claim or
defense, proof may also be made of specific instances of that person’s conduct. (51a; 14, Rule 132)

QUESTION: Don was prosecuted for homicide for allegedly beating up Vilma to death with an iron pipe. May
the prosecution introduce evidence that Vilma had a good reputation for peacefulness and non-violence?
Why? (2002 Bar)

ANSWER: NO. The prosecution may introduce evidence of the good or even bad moral character of the victim
if it tends to establish in any reasonable degree the probability or improbability of the offense charged. In this
case, the evidence is not relevant.

QUESTION: May Don introduce evidence of specific violent acts by Vilma? Why? (2002 Bar)

ANSWER: Yes, Don may introduce evidence of specific violent acts by Vilma. Evidence that one did or did not
do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at
another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme,
habit, custom or usage, and the like.
QUESTION: In a prosecution for murder, the prosecutor asks accused Darwin if he had been previously
arrested for violation of the Anti- Graft and Corrupt Practices Act. As defense counsel, you object. The trial
court asks you on what ground/s. Respond. (2010 Bar)

ANSWER: The objection is on the ground that the fact sought to be elicited by the prosecution is irrelevant and
immaterial to the offense under prosecution and trial. Moreover, the Rules do not allow the prosecution to
adduce evidence of bad moral character of the accused pertinent to the offense charged, except on rebuttal
and only if it involves a prior conviction by final judgment.

RULE 131| BURDEN OF PROOF, BURDEN OF EVIDENCE AND PRESUMPTIONS

Burden of evidence Burden of proof

Does not shift as it remains
Shifts from party to party depending upon the exigencies of the case in the
throughout the trial with the
course of the trial
party upon whom it is imposed
Generally determined by the developments at the trial or by the provisions
of substantive law or procedural rules which may relieve the party from Generally determined by the
presenting evidence on the fact alleged i.e. presumptions, judicial notice pleadings filed by the party
and admissions.
Section 1. Burden of proof and burden of evidence. – Burden of proof is the duty of a party to present
evidence on the facts in issue necessary to establish his or her claim or defense by the amount of evidence
required by law. Burden of proof never shifts.

Burden of evidence is the duty of a party to present evidence sufficient to establish or rebut a fact in issue to
establish a prima facie case. Burden of evidence may shift from one party to the other in the course of the
proceedings, depending on the exigencies of the case. (1a)

Bautista v. Sarmiento (1985)

SUMMARY: After the prosecution presented its lone witness, the accused moved for dismissal by way of
demurrer to evidence. This was denied so they filed a petition for certiorari arguing that the respondent
judge’s finding of a mere prima facie case against them negates the existence of proof beyond reasonable
doubt.

DOCTRINE: When a prima facie case is established by the prosecution in a criminal case, the burden of
evidence shifts to the accused. The burden of proof does not shift to the defense. The burden of proof remains
throughout the trial with the party upon whom it is imposed—the prosecution. It is the burden of evidence
which shifts from party to party depending upon the exigencies of the case in the course of the trial. This
burden of going forward with the evidence is met by evidence which balances that introduced by the
prosecution. Then the burden shifts back.

Asian Construction v. Tulabut (2005)

SUMMARY : Asian Construction and Develeopment Corp. was contracted by the government for the Philippine
Centennial Exposition. They subcontracted it to Tulabut. Tulabut did the works in the Food Plaza and gave
progress billing to ACDC in amount of 3.4M. ACDC again sought the help of Tulabut for two additional
cafeterias. Purchase Order given to ACDC worth 400k. ACDC did not pay, claiming that Tulabut did not
complete the work they are obligated to do. Tulabut filed complaint, presenting testimonial and documentary
evidence; ACDC did not adduce any. HELD: ACDC is estopped from denying liability because they merely
denied without showing evidence.
DOCTRINE: Once plaintiff makes out a prima facie case in his favor, the burden of evidence shifts to defendant
to controvert plaintiff’s prima facie case, otherwise a verdict must be returned in favor of plaintiff. Party
having burden of proof must produce preponderance of evidence.

EQUIPOSE DOCTRINE

Marubeni v. Lirag (2001)

SUMMARY: Lirag filed for specific performance in RTC claiming that Marubeni owed him P6M for the
consultancy services he rendered under an oral consultancy agreement. Lirag alleged that because of his
services the Bureau of Posts project was awarded to the Marubeni-Sanritsu tandem. Marubeni denied having
entered the consultancy agreement. RTC and CA found that the evidence supports the existence of the
Consultancy Agreement. HELD: SC reversed holding that the burden of proof was upon Lirag to show that
there is indeed an agreement and that the latter has failed to show a preponderance of evidence that such an
agreement exists. The testimonial evidence of Lirag’s witnesses only show that they learned of the agreement
because Lirag told them about it.

DOCTRINE: A party who has the burden of proof in a civil case must establish his case by a preponderance of
evidence. When the evidence of the parties is in equipoise, or when there is a doubt as to where the
preponderance of evidence lies, the party with the burden of proof fails and the petition must thus be denied.

Section 2. Conclusive presumptions. – The following are instances of conclusive presumptions:

(a) Whenever a party has, by his or her own declaration, act, or omission, intentionally and deliberately led
another to believe a particular thing true, and to act upon such belief, he or she cannot, in any litigation arising
out of such declaration, act or omission, be permitted to falsify it; and

(b) The tenant is not permitted to deny the title of his or her landlord at the time of the commencement of the
relation of landlord and tenant between them. (2a)

Section 3. Disputable presumptions. – The following presumptions are satisfactory if uncontradicted, but may
be contradicted and overcome by other evidence:

(a) That a person is innocent of crime or wrong;

(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his or her voluntary act;
(d) That a person takes ordinary care of his or her concerns;
(e) That evidence willfully suppressed would be adverse if produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;
(h) That an obligation delivered up to the debtor has been paid;
(i) That prior rents or installments had been paid when a receipt for the later one is produced;
(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and
the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of
ownership over, are owned by him or her;
(k) That a person in possession of an order on himself or herself for the payment of the money, or the
delivery of anything, has paid the money or delivered the thing accordingly;
(l) That a person acting in a public office was regularly appointed or elected to it;
(m)That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful
exercise of jurisdiction;
 (o) That all the matters within an issue raised in a case were laid before the court and passed upon by it;
and in like manner that all matters within an issue raised in a dispute submitted for arbitration were
laid before the arbitrators and passed upon by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a sufficient consideration;
(t) That an indorsement of a negotiable instrument was made before the instrument was overdue and at
the place where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the regular course of the mail;
(w) That after an absence of seven [(7)] years, it being unknown whether or not the absentee still lives, he
or she is considered dead for all purposes, except for those of succession.

The absentee shall not be considered dead for the purpose of opening his or her succession until after an
absence of ten [(10)] years. If he or she disappeared after the age of seventy-five [(75)] years, an absence of
five [(5)] years shall be sufficient in order that his or her succession may be opened.

The following shall be considered dead for all purposes including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been
heard of for four [(4)] years since the loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four
[(4)] years;
(3) A person who has been in danger of death under other circumstances and whose existence has not
been known for four [(4)] years; and
(4) If a married person has been absent for four [(4)] consecutive years, the spouse present may contract a
subsequent marriage if he or she has a well-founded belief that the absent spouse is already dead. In
case of disappearance, where there is a danger of death[, under] the circumstances hereinabove
provided, an absence of only two [(2)] years shall be sufficient for the purpose of contracting a
subsequent marriage. However, in any case, before marrying again, the spouse present must institute
summary proceeding[s] as provided in the Family Code and in the rules for declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance of the absent spouse[;]
(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or
fact;
(y) That things have happened according to the ordinary course of nature and ordinary nature habits of
life;
(z) That persons acting as copartners have entered into a contract of copartnership;
(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful
contract of marriage;
(bb) That property acquired by a man and a woman who are capacitated to marry each other and
who live exclusively with each other as husband and wife[,] without the benefit of marriage or under a
void marriage, has been obtained by their joint eff orts, work or industry[;]
(cc)That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and
who have acquired property through their actual joint contribution of money, property or industry,
such contributions and their corresponding shares[,] including joint deposits of money and evidences
of credit[,] are equal[;]
(dd) That if the marriage is terminated and the mother contracted another marriage within three
hundred [(300)] days after such termination of the former marriage, these rules shall govern in the
absence of proof to the contrary:
 (1) A child born before one hundred eighty (180) days after the solemnization of the subsequent marriage
is considered to have been conceived during [the former] marriage, [provided] it be born within the
three hundred [(300)] days after the termination of the former marriage; and
(2) A child born after one hundred eighty (180) days following the celebration of the subsequent marriage
is considered to have been conceived during such marriage, even though it be born within the three
hundred [(300)] days after the termination of the former marriage[;]
(ee) That a thing once proved to exist continues as long as is usual with things of that nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or published by public authority, was
so printed or published;
(hh) That a printed or published book, purporting to contain reports of cases adjudged in tribunals
of the country where the book is published, contains correct reports of such cases;
(3) (ii) That a trustee or other person whose duty it was to convey real property to a particular person has
actually conveyed it to him or her when such presumption is necessary to perfect the title of such
person or his or her successor in interest;
(ii) That except for purposes of succession, when two [(2)] persons perish in the same calamity, such as
wreck, battle, or conflagration, and it is not shown who died first, and there are no particular
circumstances from which it can be inferred, the survivorship is determined from the probabilities
resulting from the strength and the age of the sexes, according to the following rules:
1. If both were under the age of fifteen [(15)] years, the older is deemed to have survived;
2. If both were above the age of sixty [(60)], the younger is deemed to have survived;
3. If one is under fifteen [(15)] and the other above sixty [(60)], the former is deemed to have survived;
4. If both be over fifteen [(15)] and under sixty [(60)], and the sex be different, the male is deemed to
have survived, if the sex be the same, the older; and
5. If one be under fifteen [(15)] or over sixty [(60)], and the other between those ages, the latter is
deemed to have survived;
(jj) That if there is a doubt, as between two [(2)] or more persons who are called to succeed each other, as
to which of them died first, whoever alleges the death of one prior to the other, shall prove the same;
in the absence of proof, they shall be considered to have died at the same time. (3a)

Section 4. No presumption of legitimacy or illegitimacy. – There is no presumption of legitimacy or illegitimacy

of a child born after three hundred [(300)] days following the dissolution of the marriage or the separation of
the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his or her allegation. (4a)

Section 5. Presumptions in civil actions and proceedings. – In all civil actions and proceedings not otherwise
provided for by the law or these Rules, a presumption imposes on the party against whom it is directed the
burden of going forward with evidence to rebut or meet the presumption.

If presumptions are inconsistent, the presumption that is founded upon weightier considerations of policy
shall apply. If considerations of policy are of equal weight, neither presumption applies. (n)

Pornellosa v. Land Tenure Admin. (1961)

SUMMARY: Pronellosa purchased the right to occupy a parcel of land from a certain Vicenta San Jose. Entirety
of lot was subsequently bought by the government and administration of the same was entrusted to the LTA.
Pornellosa claimed to have continued to pay for the lot when Pornellosa found out that the subject lto was
already subdivided to two and one half was sold Private Respondent Herminio Guzman. Pornellosa thus filed
an action to annul the sale and to compel the LTA to execute a deed of sale in her favor. HELD: Pornellosa
failed to establish any right to the subject lot.
DOCTRINE: A party claiming a right granted or created by law must prove his claim by competent evidence. A
plaintiff is duty bound to prove his allegations in the complaint. He must rely on the strength of his evidence
and not on the weakness of that of his opponent.

IFC v. Tobias (1977)

SUMMARY: Tobias bought, on installment basis, a Dodge truck from Leelin Motors, Inc. From the sale, the
latter got 36 promissory notes and a chattel mortgage (on the same truck), with Tobias as
drawer/debtor/mortgagor. Leelin indorsed the promissory notes and assigned the chattel mortgage to
petitioner IFC. Thereafter, Tobias directly paid IFC but defaulted after six installments. IFC's counsel wrote
Tobias to demand payment or surrender the truck. Tobias replied that he was surrendering the truck because
it met an accedent and the same is with Leelin Motors for repairs. IFC changed its mind and instead sued for
the debt balance. RTC, as later affirmed by the CA, dismissed the case on the ground that IFC is now
barred/estopped under Art. 1484 (Civil Code) from filing a collection suit when it had earlier asked Tobias to
surrender the truck (similar to extrajudicial foreclosure). Petitioner argues that it had no knowledge that the
truck was in an accident when it made the demand, thus, it had the right to choose the more prudent route
which was to file a collection suit upon being informed of the accident. HELD: When IFC said it had no
knowledge that the truck was in an accident, this was a negative allegation, and needs no evidence to support
it. The burden of proof therefore of disproving petitioner's claim of non-knowledge shifted to respondent,
which the latter failed to do.

DOCTRINE: An allegation of having no knowledge (of the accident) is a negative allegation and needs no
evidence to support it, not being an essential part of the statement of the right on which the cause of action is
founded. It is therefore the other party (respondent Tobias) who has the burden of disproving the claim of
petitioner that he has no knowledge of such (accident).

Sambar v. Levi Strauss (2002)

SUMMARY: Levi Strauss filed a complaint against Sambar, owner of CVSGIC, claiming he infringed on their
copyright of the arcuate back pocket design. CVSGIC claims their design is original under Copyright
Registration No. 1-1998. Sambar denies he is connected with CVSGIC. He, admits the copyright registration is
under his name, but denies authorizing its use. He claims Levi Strauss has the burden of proving his connection
to CVSGIC and that he authorized the use of the design. HELD: Sambar has the burden of proof because his
defense was an affirmative defense.

DOCTRINE: In civil cases, the burden of proof may be on either the plaintiff or the defendant. It is on the
defendant, if in his answer he alleges an affirmative defense, which is not a denial of an essential ingredient in
the plaintiffs cause of action, but is one which, if established, will be a good defense i.e., an avoidance of the
claim, which prima facie, the plaintiff already has because of the defendants own admissions in the pleadings.

Prudential Guarantee v. TransAsia Shipping (2006)

SUMMARY: TRANS-ASIA’s insured vessel caught fire, so it sought to claim on its insurance policy with
PRUDENTIAL, but the latter denied such claim alleging that TRANS-ASIA was in breach of one of the warranty’s
conditions. HELD: Upon TRANS-ASIA’s establishment of its prima facie case of loss and policy coverage, the
burden of evidence shifted to PRUDENTIAL in proving its special & affirmative defense that TRANS-ASIA cannot
claim since it violated warranty conditions. But PRUDENTIAL didn’t.

DOCTRINE: A party which alleges a fact as a matter of defense has the burden of proving it.
Section 6. Presumption against an accused in criminal cases. – If a presumed fact that establishes guilt, is an
element of the off ense charged, or negates a defense, the existence of the basic fact must be proved beyond
reasonable doubt and the presumed fact follows from the basic fact beyond reasonable doubt. (n)

People v. Pajenado (1970)

SUMMARY: Defendant was found guilty beyond reasonable doubt of the crime of murder and illegal
possession of firearm. Although not stated in the case, it seems like the prosecution did not present evidence
as to the illegal possession charge. HELD: SC reversed the defendant’s conviction of illegal possession for
failure of the prosecution to present evidence to prove it.

DOCTRINE: Under Sec. 2 of Rule 131, in criminal cases the burden of proof as to the offense charged lies on
the prosecution. | A negative fact alleged by the prosecution must be proven if "it is an essential ingredient of
the offense charged"

People v. Verzola (1977)

SUMMARY: Verzola clubbed Bernardo Molina, Josefina's husband, to death. Josefina helped Verzola bring
Bernardo's bloodstained body down the stairs of her house. Verzola then went to the police and reported that
Bernardo died in an accident. In Verzola's extra-judicial confession, he admitted to clubbing Bernardo. Josefina
said she witnessed the crime. Later, Verzola said he killed Bernardo in self-defense. Josefina said she didn't
witness the crime but she saw Bernardo trying to be revived by Verzola. Both Josefina and Verzola claimed
that they weren't aware of the contents of their extra-judicial confession and that they were made to sign
them by the police without being able to read the contents of their confession. CFI said they were both guilty
of murder, Verzola as the principal and Josefina as the accessory. HELD: Verzola was the only one guilty.
Acquitted Josefina, stating that Verzola DID NOT present proof that he was justified in killing Bernardo with
clear, satisfactory, and convincing evidence.

DOCTRINE: Once an accused has admitted the killing of a human being, the burden is on him to establish the
existence of nay circumstance which may justify the killing or at least attenuate the offense committed. To
establish his exculpation, or the justification for the act, he must prove such affirmative allegation by clear,
satisfactory, and convincing evidence: He must rely on the strength of his own weakness and not on the
weakness of that for the prosecution, for even if the prosecution was weak, it could not be disbelieved after
the accused himself had admitted the killing. In this case, it is evident that no such proof was adduced by
Verzola.

Patterson v. New York (1977)

SUMMARY: Patterson shoots wife’s lover and was charged with murder. Accused raised defense of acting
under the influence of extreme emotional disturbance. Under New York law, accused must prove affirmative
defense by preponderance of evidence. Jury found accused guilty. Appeal pending, SC decided Mullaney and
struck down Maine’s statute requiring accused to prove defense that he acted in heat of passion under
provocation. Patterson argues that New York law is also unconstitutional based on Mullaney. Court held that
Mullaney is different as the defense raised was related to an element of the crime charged. New York
affirmative defense bears no relationship to element of murder. Also, due process only requires prosecution to
prove beyond reasonable doubt all elements of crime charged. Prosecution need not disprove and rebut all
affirmative defenses raised by accused. Burden is on accused to prove affirmative defense by preponderance
of evidence.

DOCTRINE: Due Process Clause does not put New York to the choice of abandoning such an affirmative
defense or undertaking to disprove its existence in order to convict for a crime which is otherwise within the
State's constitutional powers to sanction by substantial punishment. If the State chooses to recognize a factor
that mitigates the degree of criminality or punishment, it may assure itself that the fact has been established
with reasonable certainty, and to recognize at all a mitigating circumstance does not require the State to
prove beyond a reasonable doubt its nonexistence in each case in which the fact is put in issue if, in its
judgment, this would be too cumbersome, expensive, and inaccurate.

People v. Macalaba (2003)

SUMMARY: Abdul was convicted of violating the dangerous drugs act. In his appeal, he argued that the
prosecution failed to present any evidence that he did not have the authority to possess shabu. HELD: The
negative averment that he had no authority to possess shabu is indicated by the positive testimonies of the
prosecution (i.e. that he was driving a suspected carnapped vehicle when he was caught, that the police found
the shabu in an open bag in the car, etc.) With these facts having been established by the prosecution, the
burden was on Abdul to prove that he had the authority or license to possess the shabu but he failed to do so.

DOCTRINE: The general rule is that if a criminal charge is predicated on a negative allegation, or that a
negative averment is an essential element of a crime, the prosecution has the burden of proving the charge.
The exception is where the negative of an issue does not permit of direct proof, or where the facts are more
immediately within the knowledge of the accused, the onus probandi rests upon him to prove it.

People v. Florendo (2003)

SUMMARY: Imong hacked his wife with a bolo. He was convicted of parricide, with the aggravating
circumstance of cruelty and sentenced to death. On review to the SC, he claims the RTC erred in not
appreciating his defense was that he was insane, in appreciating cruelty as an aggravating circumstance, and
for upholding his marriage to his wife as legitimate. HELD: SC ruled against him on the first and third count,
but agreed on the second.

DOCTRINE: The onus probandi rests upon him who invokes insanity as an exempting circumstance, and he
must prove it by clear and convincing evidence. || In parricide, the best proof of relationship between
appellant and the deceased is the marriage certificate, and in the absence thereof, oral evidence of the fact of
marriage may be considered. The testimony of appellant that he was married to the deceased is an admission
against his penal interest. It is a confirmation of the sem per praesumitur matrimonio and the presumption
that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of
marriage.

RULE 132| PRESENTATION OF EVIDENCE

A. EXAMINATION OF WITNESSES

Examination of witness – open court, under oath, orally

Exceptions:

1. Summary procedure cases

2. Depositions
3. Judicial affidavit
4. Testimony of dead witness

Most important witness rule – present the most important one first, and the others after.

One day examination of witness rule – try to examine him in only one day, para hindi pabalikbalik
Judicial affidavit rule – takes the place of testimony, but witness must still appear. For all civil cases, not for
criminal cases for penalties more than 6 years, unless parties agree

Electronic testimony – may be allowed after court determines necessity, and prescribes terms and conditions.
Transcript will be stored and kept as part of records of the case

GR: witness cannot refuse to take witness stand

Ex: Criminal cases, the accused, objects to question when propounded, on ground of selfincrimination

DIRECT (why no leading questions allowed) – Facts should come from the witness, he will tell his/her story, as
a matter of fairness, BUT narration is frowned upon (Judge Jatty: Don’t waste the fucking time of the court!).

CROSS-EXAMINATION – examine witness as all important facts (ENGLISH RULE), test credibility and ensure
reliability and accuracy of testimony,

Exceptions:

- Hostile witness, rule 132 sec 12, only on examination in chief

- When the witness is the accused himself, rule 115 sex 1(d), only on direct matters

REDIRECT – clarify or repel any adverse statement in the cross, and Rehabilitate the witness. No leading
questions allowed.

RECROSS – as to matters in redirect.

LEADING QUESTIONS – Rule of thumb: if it is answerable by yes or no, it’s probably a leading question.

IMPEACH WITNESS – Discredit witness by attacking CREDIBILITY of witness

Do prior statements have to be absolutely true to use as a statement for impeachment to present testimony?
NO. You only need to show that the prior statement (regardless of truth) is inconsistent with present
testimony.

2 types of evidence in rule 132 sec 16

- Refresh memory, witness looks at document, testimony is still the evidence

- No recollection, but swears the memorandum is correctly stated, the memorandum is the evidence,
which must be offered

Section 1. Examination to be done in open court. – The examination of witnesses presented in a trial or
hearing shall be done in open court, and under oath or affi rmation. Unless the witness is incapacitated to
speak, or the question calls for a diff erent mode of answer, the answers of the witness shall be given orally.
(1)

Section 2. Proceedings to be recorded. – The entire proceedings of a trial or hearing, including the questions
propounded to a witness and his or her answers thereto, and the statements made by the judge or any of the
parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or
stenotype or by other means of recording found suitable by the court.

A transcript of the record of the proceedings made by the offi cial stenographer, stenotypist or recorder and
certifi ed as correct by him or her, shall be deemed prima facie a correct statement of such proceedings. (2a)
Section 3. Rights and obligations of a witness. – A witness must answer questions, although his or her answer
may tend to establish a claim against him or her. However, it is the right of a witness:

(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting
demeanor;
(2) Not to be detained longer than the interests of justice require;
(3) Not to be examined except only as to matters pertinent to the issue;
(4) Not to give an answer which will tend to subject him or her to a penalty for an offense unless
otherwise provided by law; or
(5) Not to give an answer which will tend to degrade his or her reputation, unless it be to the very fact at
issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the
fact of his or her previous final conviction for an offense. (3a)

Section 4. Order in the examination of an individual witness. – The order in which an individual witness may be
examined is as follows:

(a) Direct examination by the proponent;

(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross[-]examination by the opponent. (4)

Section 5. Direct examination. – Direct examination is the examination-in-chief of a witness by the party
presenting him or her on the facts relevant to the issue. (5a)

Section 6. Cross-examination; its purpose and extent. – Upon the termination of the direct examination, the
witness may be cross-examined by the adverse party on any relevant matter, with sufficient fullness and
freedom to test his or her accuracy and truthfulness and freedom from interest or bias, or the reverse, and to
elicit all important facts bearing upon the issue. (6a)

Section 7. Re-direct examination; its purpose and extent. – After the cross-examination of the witness has
been concluded, he or she may be re-examined by the party calling him or her to explain or supplement his or
her answers given during the cross-examination. On re-direct examination, questions on matters not dealt
with during the cross-examination may be allowed by the court in its discretion. (7a)

Section 8. Re-cross[-]examination. – Upon the conclusion of the re-direct examination, the adverse party may
re-cross-examine the witness on matters stated in his or her re-direct examination, and also on such other
matters as may be allowed by the court in its discretion. (8a)

Section 9. Recalling witness. – After the examination of a witness by both sides has been concluded, the
witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion,
as the interests of justice may require. (9)

Section 10. Leading and misleading questions. – A question which suggests to the witness the answer which
the examining party desires is a leading question. It is not allowed, except:

(a) On cross-examination;
(b) On preliminary matters;
(c) When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, a child
of tender years, is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) 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.
A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to
that which he or she has previously stated. It is not allowed. (10a)

Leading question

It is one which suggests to the witness the answer which the examining party desires. A leading question is not
allowed (Sec. 10, Rule 132).

When is a leading question allowed?

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 witness or hostile witness; NOTE: A witness may be considered as unwilling or hostile
only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance
to testify or his having misled the party into calling him to the witness stand. (Sec. 12, Rule 132)
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); or
6. In all stages of examination of a child if the same will further the interests of justice (Sec. 20, Rule on
Examination of a Child Witness, A.M. No.004-07-SC).

Misleading question

It is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has
previously stated. It is not allowed (Sec. 10, Rule 132) in any type of examination (Riano, 2016).

Section 11. Impeachment of adverse party’s witness. – A witness may be impeached by the party against
whom he or she was called, by contradictory evidence, by evidence that his or her general reputation for
truth, honesty, or integrity is bad, or by evidence that he or she has made at other times statements
inconsistent with his or her present testimony, but not by evidence of particular wrongful acts, except that it
may be shown by the examination of the witness, or record of the judgment, that he or she has been
convicted of an offense. (11a)

Impeachment of a witness

It is a technique employed usually as part of crossexamination to discredit a witness by attacking his

credibility. (Riano, 2016)

Ways of impeaching an adverse party’s witness

1. By contradictory evidence;
2. By evidence that the general reputation for truth, honesty or integrity of the witness is bad; or
3. By evidence that the witness has made at other times statements inconsistent with his present
testimony (Sec. 11, Rule 132).

NOTE: The other modes of impeaching a witness are:

1. By involving him during cross-examination in contradiction;

2. By showing the impossibility or improbability of his testimony;
3. By proving action or conduct of the witness inconsistent with his testimony;
4. By showing bias, interest or hostile feeling against the adverse party (Herrera, 1999).
Section 12. Impeachment by evidence of conviction of crime. – For the purpose of impeaching a witness,
evidence that he or she has been convicted by final judgment of a crime shall be admitted if (a) the crime was
punishable by a penalty in excess of one [(1)] year; or (b) the crime involved moral turpitude, regardless of the
penalty.

However, evidence of a conviction is not admissible if the conviction has been the subject of an amnesty or
annulment of the conviction. (n)

Section 13. Party may not impeach his or her own witness. – Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10 of this Rule, the party presenting the witness is not allowed to impeach
his or her credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of
his or her adverse interest, unjustified reluctance to testify, or his or her having misled the party into calling
him or her to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the
party presenting him or her in all respects as if he or she had been called by the adverse party, except by
evidence of his or her bad character. He or 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 or her examination-in-chief. (12a)

Impeachment by a party of his own witness

GR: The party producing a witness is not allowed to impeach his credibility.

XPN: The witness is an:

1. Unwilling or hostile witness so declared by the court;

2. Adverse party; or
3. Officer, director, or managing agent of a public or private corporation or of a partnership or association
which is an adverse party (Sec. 12, Rule 132).

NOTE: In these instances, such witnesses may be impeached by the party presenting him in all respects as if he
had been called by the adverse party, except by evidence of his bad character (Ibid.).

Section 14. How witness impeached by evidence of inconsistent statements. – Before a witness can be
impeached by evidence that he or she has made at other times statements inconsistent with his or her
present testimony, the statements must be related to him or her, with the circumstances of the times and
places and the persons present, and he or she must be asked whether he or she made such statements, and if
so, allowed to explain them. If the statements be in writing[,] they must be shown to the witness before any
question is put to him or her concerning them. (13a)

[Section 14. Evidence of good character of witness. – (Incorporated in Section 54, Rule 130)]

Section 15. 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. This rule does not authorize
exclusion of (a) a party who is a natural person, (b) a duly designated representative of a juridical entity which
is a party to the case, (c) a person whose presence is essential to the presentation of the party’s cause, or (d) 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. (15a)
Section 16. When witness may refer to memorandum. – A witness may be allowed to refresh his or her
memory respecting a fact by anything written or recorded by himself or herself, or under his or her direction[,]
at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in
his or her memory and he or she knew that the same was correctly written or recorded; but in such case[,] the
writing or record must be produced and may be inspected by the adverse party, who may, if he or she
chooses, cross-examine the witness upon it and may read it in evidence. A witness may also testify from such a
writing or record, though he or she retains no recollection of the particular facts, if he or she is able to swear
that the writing or record correctly stated the transaction when made; but such evidence must be received
with caution. (16a)

Section 17. When part of transaction, writing or record given in evidence, the remainder admissible. – When
part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the
same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing
or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its
understanding may also be given in evidence. (17)

Section 18. Right to inspect writing shown to witness. – Whenever a writing is shown to a witness, it may be
inspected by the adverse party. (18)

B. AUTHENTICATION AND PROOF OF DOCUMENTS

AUTHENTICATION- It is the process of proving the due execution and genuineness of a document.

When authentication is NOT required

1. The writing is an ancient document (Sec. 21, Rule 132);

2. The writing is a public document or record (Sec. 19, Rule 132); NOTE: A private document required by
law to be recorded, while it is transformed into a public document by the “public record” thereof, is
not included in this enumeration. Such recording does not make the private writing itself a public
document so as to make it admissible without authentication, i.e. birth certificate recorded in the NSO
is a public record, but it is still a private document.
3. The writing is a notarial document acknowledged, proved or certified (Sec. 30, Rule 132);
4. The authenticity and due execution of the document has been expressly admitted or impliedly
admitted by failure to deny the same under oath; or
5. When such genuineness and due execution are immaterial to the issue

Proof of public records

Written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and
public officers, e.g. a written foreign law, may be evidenced by:

1. If it is within the Philippines:

a. An official publication thereof; or
b. By a copy attested by the officer having the legal custody of the record, or by his deputy.
2. If it is kept in a foreign country:
a. An official publication thereof; or
b. By a copy attested by the officer having the legal custody of the record or by his deputy and
accompanied with a certificate that such officer has the custody. The certificate may be made
by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent
or by any officer in the foreign service of the Philippines stationed in the foreign country in
which the record is kept, and authenticated by the seal of his office (Sec. 24, Rule 132). (2009
Bar)
NOTE: Upon failure to comply with the abovementioned requirements, courts will apply the doctrine of
processual presumption.

Section 19. Classes of documents. – For the purpose of their presentation in evidence, documents are either
public or private.

Public documents are:

(a) The written official acts, or records of the sovereign authority, official bodies and tribunals, and public
officers, whether of the Philippines, or of a foreign country;
(b) Documents acknowledged before a notary public except last wills and testaments;
(c) Documents that are considered public documents under treaties and conventions which are in force
between the Philippines and the country of source; and
(d) Public records, kept in the Philippines, of private documents required by law to be entered therein.

All other writings are private. (19a)

Section 20. Proof of private document[s]. – Before any private document off ered as authentic is received in
evidence, its due execution and authenticity must be proved by any of the following means:

(b) By anyone who saw the document executed or written;

(c) By evidence of the genuineness of the signature or handwriting of the maker[;] or
(d) By other evidence showing its due execution and authenticity.

Any other private document need only be identified as that which it is claimed to be. (20)

Section 21. When evidence of authenticity of private document not necessary. – Where a private document is
more than thirty (30) years old, is produced from a custody in which it would naturally be found if genuine,
and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity
need be given. (21)

Section 22. How genuineness of handwriting proved. – The handwriting of a person may be proved by any
witness who believes it to be the handwriting of such person because he or she has seen the person write, or
has seen writing purporting to be his or hers upon which the witness has acted or been charged, and has thus
acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given
by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party
against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (22)

HOW TO PROVE GENUINENESS OF A HANDWRITING

1. It may be proved by any witness who actually saw the person writing the instrument;
2. By any person who is familiar or has acquired knowledge of the handwriting of such person, his opinion
as to the handwriting being an exception to the opinion rule under Secs. 48 & 50 of Rule 130;
3. By a comparison of the questioned handwriting from the admitted genuine specimens thereof; or
4. By expert witness (Secs. 20 & 22, Rule 132; Sec. 49, Rule 130).

NOTE: Sec. 22 of Rule 132 merely enumerates the methods of proving handwriting but does not give
preference or priority to a particular method (Lopez v. CA, et al., G.R. No. L-31494, January 23, 1978)

Section 23. Public documents as evidence. – 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. (23)
Section 24. Proof of official record. – The record of public documents referred to in paragraph (a) of Section
19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested
by the officer having the legal custody of the record, or by his or her deputy, and accompanied, if the record is
not kept in the Philippines, with a certificate that such officer has the custody.

If the office in which the record is kept is in a foreign country, which is a contracting party to a treaty or
convention to which the Philippines is also a party, or considered a public document under such treaty or
convention pursuant to paragraph (c) of Section 19 hereof, the certificate or its equivalent shall be in the form
prescribed by such treaty or convention subject to reciprocity granted to public documents originating from
the Philippines.

For documents originating from a foreign country which is not a contracting party to a treaty or convention
referred to in the next preceding sentence, the certificate may be made by a secretary of the embassy or
legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his [or
her] office.

A document that is accompanied by a certificate or its equivalent may be presented in evidence without
further proof, the certificate or its equivalent being prima facie evidence of the due execution and
genuineness of the document involved. 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 from this formality. (24a)

Section 25. What attestation of copy must state. – Whenever a copy of a document or record is attested for
the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the
attesting officer, if there be any, or if he or she be the clerk of a court having a seal, under the seal of such
court. (25a)

Section 26. Irremovability of public record. – Any public record, an official copy of which is admissible in
evidence, must not be removed from the office in which it is kept, except upon order of a court where the
inspection of the record is essential to the just determination of a pending case. (26)

Section 27. Public record of a private document. – An authorized public record of a private document may be
proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an
appropriate certificate that such officer has the custody. (27)

Section 28. Proof of lack of record. – A written statement signed by an officer having the custody of an official
record or by his or her deputy that[,] after diligent search[,] no record or entry of a specified tenor is found to
exist in the records of his or her office, accompanied by a certificate as above provided, is admissible as
evidence that the records of his or her office contain no such record or entry. (28a)

QUESTION: Lino was charged with illegal possession of firearm. During trial, the prosecution presented in
evidence a certification of the PNP Firearms and Explosives Office attesting that the accused had no license
to carry any firearm. The certifying officer, however, was not presented as a witness. Is the certification of
the PNP Firearm and Explosives Office without the certifying officer testifying on it admissible in evidence
against Lino? (2003Bar)

ANSWER: YES. Section 28, Rule 130 provides that “a written statement signed by an officer having the custody
of an official record or by his deputy that after diligent search, no record or entry of a specified tenor is found
to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence
that the records of his office contain no such record or entry.” The records of the PNP Firearm and Explosives
Office are a public record. Hence, notwithstanding that the certifying officer was not presented as a witness
for the prosecution, the certification he made is admissible in evidence against Lino.

Section 29. How judicial record impeached. – Any judicial record may be impeached by evidence of:

(a) want of jurisdiction in the court or judicial officer[;]

(b) collusion between the parties[;] or
(c) fraud in the party offering the record, in respect to the proceedings. (29)

Section 30. Proof of notarial documents. – Every instrument duly acknowledged or proved and certified as
provided by law, 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. (30)

Section 31. Alteration in document, how to explain. – 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. He or she may show that the alteration was made by another,
without his or her concurrence, or was made with the consent of the parties affected by it, or was otherwise
properly or innocently made, or that the alteration did not change the meaning or language of the instrument.
If he or she fails to do that, the document shall not be admissible in evidence. (31a)

HOW TO EXPLAIN ALTERATIONS IN A DOCUMENT

A party producing a document as genuine which has been altered and appears to have been altered after its
execution must account for the alteration. He may show that the alteration:

1. Was made by another, without his concurrence;

2. Was made with the consent of the parties affected by it;
3. Was otherwise properly or innocently made; or
4. That the alteration did not change the meaning or language of the instrument.

NOTE: Failure to do at least one of the above will make the document inadmissible in evidence (Sec. 31, Rule
132)

Section 32. Seal. – There shall be no difference between sealed and unsealed private documents insofar as
their admissibility as evidence is concerned. (32)

Section 33. Documentary evidence in an unofficial language. – Documents written in an unofficial language
shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid
interruption of proceedings, parties or their attorneys are directed to have such translation prepared before
trial. (33)

C. OFFER AND OBJECTION

Section 34. Offer of evidence. – The court shall consider no evidence which has not been formally offered. The
purpose for which the evidence is offered must be specified. (34)

Section 35. When to make offer. – All evidence must be offered orally. The offer of the testimony of a witness
in evidence must be made at the time the witness is called to testify.

The offer of documentary and object evidence shall be made after the presentation of a party’s testimonial
evidence. (35a)
 - As regards the testimony of a witness, the offer must be made at the time the witness is called to
testify. Documentary and object evidence shall be offered after the presentation of a party's
testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing
(Sec. 35).
- It is the duty of each contending party to lay before the court the facts in issue–fully and fairly; i.e., to
present to the court all the material and relevant facts known to him, suppressing or concealing
nothing, nor preventing another party, by clever and adroit manipulation of the technical rules of
pleading and evidence, from also presenting all the facts within his knowledge. Republic’s failure to
offer a plausible explanation for its concealment of the main bulk of its exhibits even when it was
under a directive to produce them and even as the defendants were consistently objecting to the
presentation of the concealed documents gives rise to a reasonable inference that the Republic, at the
very outset, had no intention whatsoever of complying with the directive of this Court (Republic v.
Sandiganbayan, GR No. 188881, 04/21/2014)

How offer of evidence is made

1. Before the court has ruled on the objection, in which case its function is to persuade the court to
overrule the objection or deny the privilege invoked;
2. After the court has sustained the objection, in which case its function is to preserve for the appeal the
evidence excluded by the privilege invoked; or
3. Where the offer of proof includes the introduction of documents, or any of the physical evidence, the
same should be marked for identification so that they may become part of the record (Herrera, 1999).

When offer of proof is NOT required

1. When the question to which an objection has been sustained clearly reveals on its face the substance,
purpose and relevancy of the excluded evidence;
2. When the substance, purpose and relevancy of the excluded evidence were made known to the court
either in the court proceedings and such parts appear on record;
3. Where evidence is inadmissible when offered and excluded, but thereafter becomes admissible, it
must be re-offered, unless the court indicates that a second offer would be useless (Herrera, 1999).

QUESTION: Aiza and Matet were charged with murder. Upon application of the prosecution, Matet was
discharged from the Information to be utilized as a State witness. The prosecutor presented Matet as
witness but forgot to state the purpose of his testimony much less offer it in evidence. Matet testified that
she and Aiza conspired to kill the victim but it was Aiza who actually shot the victim. The testimony of Matet
was the only material evidence establishing the guilt of Aiza. Matet was thoroughly cross-examined by the
defense counsel. After the prosecution rested its case, the defense filed a motion for demurrer to evidence
based on the following grounds:

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

Rule on the motion for demurrer to evidence on the above grounds.

ANSWER:

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

Unaccepted offer

An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal
property is, if rejected without valid cause, equivalent to the actual production and tender of the money,
instrument, or property (Sec. 35, Rule 130)

Section 36. Objection. – Objection to offer of evidence must be made orally immediately after the offer is
made.

Objection to the testimony of a witness for lack of a formal offer must be made as soon as the witness begins
to testify. Objection to a question propounded in the course of the oral examination of a witness must be
made as soon as the grounds therefor become reasonably apparent.

The grounds for the objections must be specified. (36a)

Grounds for objection:

(a) Hearsay
(b) Argumentative
(c) Leading
(d) Misleading
(e) Incompetent
(f) Irrelevant
(g) Best evidence rule
(h) Parole evidence rule
(i) Question has no basis

Kinds of objections

1. Irrelevant – The evidence being presented is not relevant to the issue (e.g. when the prosecution offers
as evidence the alleged offer of an insurance company to pay for the damages suffered by the victim in
a homicide case);
2. Incompetent – The evidence is excluded by law or rules (Sec. 3, Rule 138) (e.g. evidence obtained in
violation of the Constitutional prohibition against unreasonable searches and seizures);
3. Specific objections – e.g. parol evidence and best evidence rule;
4. General objections – e.g. continuing objections (Sec. 37).
a. objection to a question propounded in the course of the oral examination of the witness; and
b. objection to an offer of evidence in writing
5. Formal – One directed against the alleged defect in the formulation of the question (e.g. ambiguous
questions, leading and misleading questions, repetitious questions, multiple questions, argumentative
questions) (Riano, 2016); and
6. Substantive – One made and directed against the very nature of evidence (eg. parol, not the best
evidence hearsay, privileged communication, not authenticated, opinion, res inter alios acta) (Ibid)

Section 37. When repetition of objection unnecessary. – When it becomes reasonably apparent in the course
of the examination of a witness that the questions being propounded are of the same class as those to which
objection has been made, whether such objection was sustained or overruled, it shall not be necessary to
repeat the objection, it being sufficient for the adverse party to record his or her continuing objection to such
class of questions. (37a)
Section 38. Ruling. – The ruling of the court must be given immediately after the objection is made, unless the
court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always
be made during the trial and at such time as will give the party against whom it is made an opportunity to
meet the situation presented by the ruling.

The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on
two [(2)] or more grounds, a ruling sustaining the objection on one [(1)] or some of them must specify the
ground or grounds relied upon. (38)

Section 39. Striking out [of] answer. – Should a witness answer the question before the adverse party had the
opportunity to voice fully its objection to the same, or where a question is not objectionable, but the answer is
not responsive, or where a witness testifies without a question being posed or testifies beyond limits set by
the court, or when the witness does a narration instead of answering the question, and such objection is
found to be meritorious, the court shall sustain the objection and order such answer, testimony or narration
to be stricken off the record.

On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or
otherwise improper. (39a)

Section 40. Tender of excluded evidence. – If documents or things offered in evidence are excluded by the
court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral,
the offeror may state for the record the name and other personal circumstances of the witness and the
substance of the proposed testimony. (40)

Ong v. CA (1999)

SUMMARY: This case involves the propriety of RTC’s decision finding Philtranco liable to Sps. Ong for the
damages which the latter suffered in a two-vehicle collision which Philtranco’s bus was involved, based on a
Police Report not formally offered as evidence. Sps. Ong rode a bus owned and operated by Inland Trailways.
The bus was bumped from the rear by another bus owned and operated by Philtranco. The Sps. Ong suffered
injuries for which they filed a claim for damages against Inland Services and Philtranco. In Inland’s answer, it
said that according to the Police Report, it was Philtranco’s driver who was at fault. RTC found Philtranco as
the proximate cause of the accident and ordered it to pay the damages. RTC’s finding of liability on the part of
Philtranco was based on the Police Report. When Philtranco appealed, the CA said RTC erred in basing its
decision on the Police Report not formally offered as evidence. HELD: RTC erred in basing its decision on an
evidence not formally offered.

DOCTRINE: A formal offer is necessary, since judges are required to base their findings of fact and their
judgment solely and strictly upon the evidence offered by the parties at the trial. To allow parties to attach any
document to their pleadings and then expect the court to consider it as evidence, even without formal offer
and admission, may draw unwarranted consequences. Opposing parties will be deprived of their chance to
examine the document and to object to its admissibility. On the other hand, the appellate court will have
difficulty reviewing documents not previously scrutinized by the court below. A document or an article is
valueless unless it is formally offered in evidence, and the opposing counsel is given an opportunity to object
to it and to cross-examine any witness called to present or identify it. Evidence not formally offered before the
TC cannot be considered on appeal, for to consider them at such stage will deny the other parties their right to
rebut them.

Heirs of Lourdes Saez Sabanpan v. Comorposa (2003)

SUMMARY: Francisco Comorposa is the ascendant of the Respondents. Back in 1960, Francisco lost his job and
was looking for a place to put his nipa hut home. He asked help from his family friend Adolfo Saez who
allowed Francisco to occupy their family’s land (which was allegedly owned by Adolfo’s father). Later,
Francisco left for Hawaii and the respondents succeeded in possession. In 1998, Petitioners heirs of Adolfo
asked them to leave but respondents refused, claiming that they have acquired valid ownership by
prescription for being possessors since 1960. One of their pieces of evidence was a CENR certification that said
that during the time of their possession, the land was alienable and not allocated to any person yet. Although
this Certification was marked as evidence in the pretrial of the MTC, it was not formally offered. The MTC
found for the Petitioners, but the RTC reversed and found for the Respondents, by giving weight to that
Certification. The CA affirmed the RTC. Now, the Petitioners assail the CA ruling, saying that the Certification
should not have been considered as evidence. HELD: The evidentiary rule that requires formal offer of
evidence applies only to ordinary trials but DOES NOT apply to summary procedures, as was in this case.
Hence, the Certification is admissible.

DOCTRINE: Neither the rules of procedure (Rule 132, Sec 34) nor jurisprudence would sanction the admission
of evidence that has not been formally offered during the trial. But this evidentiary rule is applicable only to
ordinary trials, not to cases covered by the rule on summary procedure -- cases in which no full-blown trial is
held.

Cabugao v. People (2004)

SUMMARY: After a buy-bust, pet was found guilty of illegal possession of shabu. Lower courts failed to
consider vital pieces of documentary evidence (order of dismissal of arresting officer from service and
resolution demoting another for drug use) which the respondent cannot now object to as hearsay evidence
(not certified) when the only objection it made was on the ground of being irrelevant/off-tangent to the issue.

DOCTRINE: Grounds for objection must be specified orally or in writing. In failing to object to the testimony on
the proper ground, the counsel waived his right to make such objection and, consequently, the evidence
offered may be admitted. An appellate court will not consider any other ground of objection not made at the
time pieces of evid were admitted.

Yu v. CA (2005)

SUMMARY: Viveca filed a case for legal separation and dissolution of conjugal partnership against her husband
Philip. She moved for the issuance of a subpoena duces tecum and ad testificandum against Insular Life to
compel the production of the insurance policy and application of a person suspected to be Philip’s illegitimate
child. The RTC denied this saying it is inadmissible. The CA reversed. Philip says when Viveca tendered
excluded evidence, this mooted her petition. HELD: This is not the tender contemplated because the evidence
was not offered nor presented to the court.

DOCTRINE: Before the tender of excluded evidence is made, the evidence must have been formally offered
before the court. Before formal offer, the evidence must have been identified and presented before the court.

Valencia v. Sandiganbayan (2005)

SUMMARY: Valncia, Governor of Oriental Mindoro, was charged of a violation under RA 3019 for appointing
Umbao, a candidate who lost the previous election, as Councilor of Polo, Oriental Mindoro. A joint Stipulation
of Facts was agreed by the parties but Valencia refused to sign the same. The prosecution rested its case
based on said stipulation. Motion for leave to file demurrer to evidence was filed by Valencia. An order was
rendered by the Sandiganbayan based on the stipulation; however, said order was recalled upon motion of
the prosecution. Sandiganbayan allowed the prosecution to present evidence and denied the motion of
Valencia. Valencia filed petition for certiorari to the SC. HELD: Petition dismissed; the joint stipulation of facts
was not yet formally offered as evidence. Hence, the motion for leave to file demurrer by Valencia was
premature.
DOCTRINE: Before an evidence may be admitted, the rules require that the same be formally offered,
otherwise, it cannot be considered by the court. A prior formal offer of evidence concludes the case for the
prosecution and determines the timeliness of the filing of a demurrer to evidence.

Parel v. Prudencio (2006)

SUMMARY: Plaintiff filed a complaint for recovery of possession and damages against defendant. He alleges
that he owns a two-storey residential house in Baguio and that defendant is unlawfully occupying the ground
floor of the same. Defendant argued that his parents co-owned the house with plaintiff. He presented
documentary evidence showing that plaintiff’s civil and criminal cases against defendant had been dismissed
and defendant’s parents’ special power of attorney authorizing defendant to occupy the ground floor. He also
presented testimonial evidence. The CA did not consider the documentary evidence presented by the
defendant because he never formally offered them. Before the SC, the defendant cited Bravo v Borja to argue
that the documentary evidence he presented should still be considered despite his failure to formally offer
them because they were marked during the presentation of the testimony of petitioner’s witnesses and were
part of their testimonies and that these evidence were part of the memorandum filed by him before the trial.
HELD: Rule 132, Section 34 squarely applies. Bravo was decided based on Rule 133, Section 7.

DOCTRINE: Rule 133 Section 7 is an exception to Rule 132 Section 34. (But this case involves the general rule.
SC held that the documentary evidence was properly not considered by the CA.)

Ramos v. Dizon (2006)

SUMMARY: Petitioner sought to register and consolidate ownership over parcel of land she allegedly bought
from Respondents through an agent authorized by Respondents through an SPA. Respondents however
alleged that agent was authorized to mortgage the land only and not to sell it and thus claimed that
transaction between agent and Petitioner was actually an equitable mortgage and not a pacto de retro sale.
During trial, after petitioners made an offer of evidence, respondents manifested that they will no longer
present testimonial witnesses and thus identified certain documents for marking. Thereafter, the TC decided
the case in favor of respondents before the respondents were able to make a formal offer of evidence.
Petitioner now brings case to SC alleging that RTC erred in considering evidenced which were only identified
and marked by respondents but were not formally offered. HELD: RTC affirmed.

DOCTRINE: For evidence to be considered, the same must be formally offered. Corollarily, the mere fact that a
particular document to identified and marked as an exhibit does not mean that is has already been offered as
part of the evidence of a party. However, in People v. Napat-a, citing People v. Mate, SC relaxed the foregoing
rule and allowed evidence not formally offered to be admitted and considered by the TC provided the
following requirements are present, viz: first, the same must have been duly identified by testimony duly
recorded and, second, the same must have been incorporated in the records of the case.

Tan v. People (2006)

SUMMARY: Tan was charged with six counts of BP 22 for issuing checks that were dishonored for insufficient
funds, the Account having been closed. He contends that a demand letter marked as Exhibit R should not be
given evidentiary weight because although it was included in the formal offer of evidence by prosecution, it
was not presented during trial for proper identification. HELD: Since the letter was indeed not presented
during trial, its formal offer was indeed tainted with irregularity. The letter not being admissible, Tan is not
guilty.

DOCTRINE: Objection to admissibility of evidence, if not made at the time the evidence was offered, is deemed
waived. However, this general rule does not apply where the evidence was never presented at trial.
Dizon v. CTA (2008)

SUMMARY: Jose Fernandez died. His estate’s appointed administrator then arranged for all claims/debts and
taxes to be determined and paid. Because the unsettled debts (187 million) at the time of the decedent’s
death exceeded the gross value of the estate, the estate only filed a tax return showing a NIL estate tax
liability (meaning they paid ZERO taxes) to the BIR which then issued a clearance. Some years after, the
creditors of the estate however partially condoned the debts so the estate actually paid a much lower amount
compared to what it previously declared with the BIR. This prompted the BIR to re-assess for deficiency in tax
payments. Petitioner brought the case to the CTA, and later the CA, both of which ruled in favor of the
Commissioner. HELD: SC set aside CTA and CA’s decisions on the ground that procedurally, BIR did not
formally offer evidence to support its claims and that, on the merits, the “date-of-death valuation” rule applies
since tax laws are to be strictly construed against the government.

DOCTRINE: A formal offer is necessary because judges are mandated to rest their findings of facts and their
judgment only and strictly upon the evidence offered by the parties at the trial. Its function is to enable the
trial judge to know the purpose or purposes for which the proponent is presenting the evidence. On the other
hand, this allows opposing parties to examine the evidence and object to its admissibility. Moreover, it
facilitates review as the appellate court will not be required to review documents not previously scrutinized by
the TC. Strict adherence to the said rule is not a trivial matter. The formal offer of one's evidence is deemed
waived after failing to submit it within a considerable period of time. It explained that the court cannot admit
an offer of evidence made after a lapse of three months because to do so would "condone an inexcusable
laxity if not noncompliance with a court order which, in effect, would encourage needless delays and derail
the speedy administration of justice."

Catacutan v. People (2011)

SUMMARY: School principal Catacutan was convicted in RTC of violation of the Anti-Graft and Corrupt
Practices Act for refusing to implement the promotion of 2 employees. On appeal, Catacutan was not allowed
to present the CA decision dismissing an administrative case against him. He claimed this was a denial of due
process. HELD: Due process was not violated because administrative cases are independent from criminal
actions.

DOCTRINE: The findings in administrative cases are not binding upon the court trying a criminal case, even if
the criminal proceedings are based on the same facts and incidents which gave rise to the administrative
matter. Due process of law is not denied by the exclusion of irrelevant, immaterial, or incompetent evidence,
or testimony of an incompetent witness. It is not an error to refuse evidence which although admissible for
certain purposes, is not admissible for the purpose which counsel states as the ground for offering it.

Aludos v. Suerte (2012)

SUMMARY: After acquiring from the Baguio City Gov’t a permit to occupy stalls in a Baguio market, Lomises
transferred all his rights and improvements to Johnny. Later, however, Lomises backed out of the agreement,
so Johnny filed a case to compel the former to proceed with the assignment and sale. SC ruled that the
agreement was not a contract of loan (and hence, an equitable mortgage), but one involving an assignment of
lease and sale of improvements. Lomises argued that the CA erred in upholding the validity of the sale of
improvements. HELD: SC rejected his reliance on the lease contract as such was never offered in evidence.

DOCTRINE: Offer of evidence is necessary because it is the duty of the court to rest its findings of fact and its
judgment only and strictly upon the evidence offered by the parties. Hence, unless and until admitted by the
court in evidence for the purposes/s for which such document is offered, the same is merely a scrap of paper
barren of probative weight.
RULE 133| WEIGHT AND SUFFICIENCY OF EVIDENCE

Section 1. Preponderance of evidence, how determined. – In civil cases, the party having the burden of proof
must establish his or her case by a preponderance of evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances
of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the
facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability
of their testimony, their interest or want of interest, and also their personal credibility so far as the same may
legitimately appear upon the trial. The court may also consider the number of witnesses, though the
preponderance is not necessarily with the greater number. (1a)

Section 2. Proof beyond reasonable doubt. – In a criminal case, the accused is entitled to an acquittal, unless
his or her guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a
degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required,
or that degree of proof which produces conviction in an unprejudiced mind. (2a)

QUESTION: Prosecution witnesses positively identified Johnny as the assailant of Chris. Hence, he was
convicted of Homicide. However, he contends that the State failed to present sufficient evidence against
him in court. He sufficed that should the knife he held during a fight against his longtime enemies, brothers
Chris and Michael, had been presented, it would show the difference that Chris’ knife, although smaller
than Johnny’s, had more blood stains but which size fits best on the mortal wound inflicted on himself. It
would thereby be ascertained that Chris accidentally stabbed himself upon losing his balance during such
aggressive fight. Is Johnny’s contention meritorious?

ANSWER: NO. The non-identification and non-presentation of the weapon actually used in the killing did not
diminish the merit of the conviction on the ground that other competent evidence and the testimonies of
witnesses had directly and positively identified and incriminated Johnny as the assailant of Chris. The
presentation of the weapon is not a prerequisite for conviction. Positive identification of the accused is
sufficient for the judgment of conviction despite the non-presentation of the weapon used in the commission
of the offense.

Section 3. Extrajudicial confession, not sufficient ground for conviction. – An extrajudicial confession made by
an accused shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. (3)

Section 4. Circumstantial evidence, when sufficient. – Circumstantial evidence is sufficient for conviction if:

(a) There is more than one [(1)] circumstance;

(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

Inferences cannot be based on other inferences. (4a)

Section 5. Weight to be given opinion of expert witness, how determined. – In any case where the opinion of
an expert witness is received in evidence, the court has a wide latitude of discretion in determining the weight
to be given to such opinion, and for that purpose may consider the following:

(a) Whether the opinion is based upon sufficient facts or data;

(b) Whether it is the product of reliable principles and methods;
(c) Whether the witness has applied the principles and methods reliably to the facts of the case; and
(d) Such other factors as the court may deem helpful to make such determination. (n)
Section 6. Substantial evidence. – In cases fi led before administrative or quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion. (5)

Section 7. Power of the court to stop further evidence. – The court may stop the introduction of further
testimony upon any particular point when the evidence upon it is already so full that more witnesses to the
same point cannot be reasonably expected to be additionally persuasive. This power shall be exercised with
caution. (6a)

Section 8. Evidence on motion. – When a motion is based on facts not appearing of record, the court may hear
the matter on affidavits or depositions presented by the respective parties, but the court may direct that the
matter be heard wholly or partly on oral testimony or depositions. (7)

Exam Drill

GENERAL PRINCIPLES

Q: Legislative facts and adjudicative facts. (2004 Bar)

A: Legislative facts refer to facts mentioned in a statue or in an explanatory note, while adjudicative facts are
facts found in a court decision.

Q: Give the reasons underlying the adoption of the following rules of evidence:

a. Dead Man Rule

If death has closed the lips of one party, the policy of the law is to close the lips of the other (Goni v. Court of
Appeals, L- 77434, September 23, 1986). This is to prevent the temptation to perjury because death has
already sealed the lips of the party.

b. Parol Evidence Rule

It is designed to give certainty to a transaction which has been reduced to writing, because written evidence is
much more certain and accurate than that which rests on fleeting memory only (Francisco, Revised Rules of
Court, Vol. VII, Part I. p. 154)

c. Best Evidence Rule

This Rule is adopted for the prevention of fraud and is declared to be essential to the pure administration of
justice (Moran, Vol. 5, p. 12). If a party is in possession of such evidence and withholds it, the presumption
naturally arises that the better evidence is withheld for fraudulent purposes (Francisco, Revised Rules of Court
Vol. VII, Part I, pp. 121,122).

d. The rule against the admission of illegally obtained extrajudicial confession.

An illegally obtained extrajudicial confession nullifies the intrinsic validity of the confession and renders it
unreliable as evidence of the truth (Moran, Volume 5. p. 257). It is the fruit of a poisonous tree.

e. The rule against the admission of an offer of compromise in civil cases (1997 Bar)

The reason for the rule against the admission of an offer of compromise in civil case as an admission of any
liability is that parties are encouraged to enter into compromises.
Courts should endeavor to persuade the litigants in a civil case to agree upon some fair compromise (Art.
2029, NCC).

During pre-trial, courts should direct the parties to consider the possibility of an amicable settlement (Sec.
2[a], Rule 18).

Admissibility of evidence

Q: The barangay captain reported to the police that X was illegally keeping in his house in the barangay an
Armalite M16 rifle. On the strength of that information, the police conducted a search of the house of X and
indeed found said rifle. The police raiders seized the rifle and brought X to the police station. During the
investigation, he voluntarily signed a Sworn Statement that he was possessing said rifle without license or
authority to possess, and a Waiver of Right to Counsel, individually rule on the admissibility in evidence of
the:

a. Rifle;

A: The rifle is not admissible in evidence because it was seized without a proper search warrant. A warrantless
search is not justified. There was time to secure a search warrant (People v. Encicada G.R. No. 116720,
October 2, 1997).

b. Sworn Statement; (2008 Bar) and

A: The sworn statement is not admissible in evidence because it was taken without informing him of his
custodial rights and without the assistance of counsel which should be independent and competent and
preferably of the choice of the accused (People v. Januario, G.R. No. 98252, February 7, 1997).

c. Waiver of Right to Counsel of X. (1998 Bar)

A: The waiver of his right to counsel is not admissible because it was made without the assistance of counsel
of his choice (People v. Gomez, G.R. No. 101817, March 26, 1997).

Q: Dominique was accused of committing a violation of the Human Security Act. He was detained
incommunicado, deprived of sleep, and subjected to water torture. He later allegedly confessed his guilt via
an affidavit. After trial, he was acquitted on the ground that his confession was obtained through torture,
hence inadmissible as evidence. In a subsequent criminal case for torture against those who deprived him of
sleep and subjected him to water torture, Dominique was asked to testify and to, among other things,
identify his abovesaid affidavit of confession. As he was about to identify the affidavit, the defense counsel
objected on the ground that the affidavit is a fruit of a poisonous tree. Can the objection be sustained?
Explain. (2010 Bar)

A: No, the objection may not be sustained on the ground stated, because the affiant was only to identify the
affidavit which is not yet being offered in evidence. The doctrine of the fruit of the poisonous tree can only be
invoked by Domingo as his defense in the crime of violation of Human Security Act filed against him but not by
the accused in a torture case filed by him. In the instant case, the presentation of the affidavit cannot be
objected to by the defense counsel on the ground that it is a fruit of the poisonous tree because the same is
used in Domingo’s favour.

Q: Sgt. GR of WPD arrested two NPA suspects, Max and Brix, both aged 22, in the act of robbing a grocery in
Ermita. As he handcuffed them he noted a pistol tucked in Max’s waist and a dagger hidden under Brix’s
shirt, which he promptly confiscated. At the police investigation room, Max and Brix orally waived their
right to counsel and to remain silent. Then under oath, they freely answered questions asked by the police
desk officer. Thereafter they signed their sworn statements before the police captain, a lawyer. Max
admitted his part in the robbery, his possession of a pistol and his ownership of the packet of shabu found
in his pocket. Brix admitted his role in the robbery and his possession of a dagger. But they denied being
NPA hit men. In due course, proper charges were filed by the City Prosecutor against both arrestees before
the MM RTC. May the written statements signed and sworn to by Max and Brix be admitted by the trial
court as evidence for the prosecution? Reason. (2004 Bar)

A: No. The sworn written statements of Max and Brix may not be admitted in evidence, because they were not
assisted by counsel, even if the police captain before whom they signed the statements was a lawyer, nor can
he be considered as an independent counsel. Waiver of the right to a lawyer must be done in writing and in
the presence of independent counsel (People v. Mahinay, G.R. No. 122485, February 1, 1999; People v.
Espiritu, G.R. No. 128287, February 2, 1999).

Q: Defendant was declared in default by the RTC. Plaintiff was allowed to present evidence in support of his
complaint. Photocopies of official receipts and original copies of affidavits were presented in court,
identified by plaintiff on the witness stand and marked as exhibits. Said documents were offered by plaintiff
and admitted in evidence by the court on the basis of which the RTC rendered judgment in favor of the
plaintiff, pursuant to the relief prayed for. Upon receipt of judgment, defendant appeals to the Court of
Appeals claiming that the judgment is not valid because the RTC based its judgment on mere photocopies
and affidavits of persons not presented in court. Is the claim valid? Explain. (2000 Bar)

A: The claim of defendant is valid, because the court received evidence which it can order in its own
discretion, in which case the evidence of the plaintiff must pass the basic requirements of admissibility.

Burden of proof and burden of evidence

Q: Distinguish Burden of proof and burden of evidence. (2004 Bar)

A: Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his
claim or defense by the amount of evidence required by law (Sec. 1, Rule 131), while burden of evidence is the
duty of a party to go forward with the evidence to overthrow prima facie evidence established against him
(See: Bautista v. Sarmiento, G.R. No. L-45137 September 23, 1985).

Quantum of proof

Q: Distinguish preponderance of the evidence from substantial evidence. (2003 Bar)

A: Preponderance of evidence means that the evidence as a whole adduced by one side is superior to that of
the other. This is applicable in civil cases (Sec. 1, Rule 133; Municipality of Moncada v. Cajuigan, G.R. No. L-
7048, January 12, 1912).

Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate
to justify a conclusion. This is applicable in cases filed before administrative or quasi-judicial bodies (Sec. 5,
Rule 133).

JUDICIAL NOTICE AND JUDICIAL ADMISSIONS

Judicial notice of foreign laws, law of nations and municipal ordinance

Q: Give three instances when a Philippine Court can take judicial notice of a foreign law. (1997 Bar)

A: The three instances when a Philippine court can take judicial notice of a foreign law are:
 (1) when the Philippine courts are evidently familiar with the foreign law (Moran, 1980):
(2) when the foreign law refers to the law of nations (Sec. 1, Rule 129) and,
(3) when it refers to a published treatise, periodical or pamphlet on the subject of law if the court takes
judicial notice of the fact that the writer thereof is recognized in his profession or calling as expert on
the subject (Sec. 4[5], Rule 130).

Q: How do you prove a written foreign law? (1997 Bar)

A: A written foreign law may be evidenced by an official publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody, if the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul,
vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign
country in which the record is kept, and authenticated by the seal of his office (Sec. 24, Rule 132, Zalamea v.
Court of Appeals, G.R. No. 104235 November 18, 1993).

Q: Suppose a foreign law was pleaded as part of the defense of defendant but no evidence was presented
to prove the existence of said law, what is the presumption to be taken by the court as to the wordings of
said law? (1997 Bar)

A: The presumption is that the wordings of the foreign law are the same as the local law (Northwest Orient
Airlines v. Court of Appeals, G.R. No. 112573, February 9, 1995; Moran, 1980; Lim v. Collector of Customs, G.R.
No. L-11759, March 16, 1917). This is known as the PROCESSUAL PRESUMPTION.

OBJECT (REAL) EVIDENCE

Chain of custody, in relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002

Q: At the trial of Ace for violation of the Dangerous Drugs Act, the prosecution offers in evidence a
photocopy of the marked P100.00 bills used in the “buy-bust” operation. Ace objects to the introduction of
the photocopy on the ground that the Best Evidence Rule prohibits the introduction of secondary evidence
in lieu of the original.

a. Is the photocopy real (object) evidence or documentary evidence?

A: The photocopy of the marked bills is real (object) evidence not documentary evidence, because the marked
bills are real evidence

b. Is the photocopy admissible in evidence? (1994 Bar)

A: Yes, the photocopy is admissible in evidence, because the best evidence rule does not apply to object or
real evidence (People v. Tandoy, G.R. No. 0505, December 4, 1990).

Q: Discuss the “chain of custody” principle with respect to evidence seized under R.A. 9165 or the
Comprehensive Dangerous Drugs Act of 2002. (2012 Bar)

A: In prosecutions involving narcotics and other illegal substances, the substance itself constitutes part of the
corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction beyond
reasonable doubt. The chain of custody requirement is essential to ensure that doubts regarding the identity
of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from
the accused, to the police, to the forensic chemist, and finally to the court (People v. Sitco, G.R. No. 178202,
May 14, 2010). Ergo, the existence of the dangerous drug is a condition sine qua non for conviction (People v.
De Guzman y Danzil, G.R. No. 186498, March 26, 2010). The failure to establish, through convincing proof, that
the integrity of the seized items has been adequately preserved through an unbroken chain of custody is
enough to engender reasonable doubt on the guilt of an accused (Id.).

Nonetheless, non-compliance with the procedure shall not render void and invalid the seizure and custody of
the drugs when: (1) such non-compliance is attended by justifiable grounds; and (2) the integrity and the
evidentiary value of the seized items are properly preserved by the apprehending team. There must be proof
that these two (2) requirements were met before such non-compliance may be said to fall within the scope of
the proviso (People v. Dela Cruz, G.R. No. 177222, October 29, 2008).

Rule on DNA Evidence (A.M. No. 06-11-5-SC)

Q: In a prosecution for rape, the defense relied on Deoxyribonucleic Acid (DNA) evidence showing that the
semen found in the private part of the victim was not identical with that of the accused. As private
prosecutor, how will you dispute the veracity and accuracy of the results of the DNA evidence? (2010 Bar)

A: As private prosecutor, I shall try to discredit the results of the DNA test by questioning and possibly
impugning the integrity of the DNA profile by showing a flaw/error in obtaining the biological sample, or in the
chain of custody of the biological sample obtained; the testing methodology employed; the scientific standard
observed; the forensic DNA laboratory which conducted the test; and the qualification, training and
experience of the forensic laboratory personnel who conducted the DNA testing.

Q: At the Public Attorney's Office station in Taguig where you are assigned, your work requires you to act as
public defender at the local Regional Trial Court and to handle cases involving indigents. Still in another
case, this time for illegal possession of dangerous drugs, the prosecution has rested but you saw from the
records that the illegal substance allegedly involved has not been identified by any of the prosecution
witnesses nor has it been the subject of any stipulation. Should you now proceed post haste to the
presentation of defense evidence or consider some other remedy? Explain the remedial steps you propose
to undertake. (2013 Bar)

A: I will first file a motion for leave to file demurrer to evidence within five (5) days from the time the
prosecution rested its case. If the same is granted, then I will file a demurrer to evidence within ten (10) days
from notice on the ground of insufficiency of evidence of the prosecution (Sec. 23, Rule 119).

In People v. De Guzman, G.R. No. 186498, March 26, 2010, the Supreme Court held that in prosecution for
violation of the dangerous Drugs Act, the existence of the dangerous drug is a condition sine qua non for
conviction. The dangerous drug is the very corpus delicti of the crime. The identity of the prohibited drug must
be established with moral certainty.

Apart from the showing that the elements of possession or sale are present, the fact that the substance
illegally possessed and sold in the first place is the same substance offered in court as exhibit must likewise be
established with the same degree of certitude as that needed to sustain a guilty verdict. The corpus delicti
should be identified with unwavering exactitude.

Similarly, in People v. Sitco, G.R. No. 178202, May 14, 2010, the High Court held that in prosecutions involving
narcotics and other illegal substances, the substance itself constitute part of the corpus delicti of the offense
and the fact of its existence is vital to sustain a judgment of conviction beyond reasonable doubt. Of chief
concern in drug cases then is the requirement that the prosecution prove that what was seized by police
officers is the same item presented in court. This identification must be established with moral certainty and is
a function of the rule of chain of custody. The chain of custody requirement is essential to ensure that doubts
regarding the identity of the evidence are removed through the monitoring and tracking of the movements of
the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court.
DOCUMENTARY EVIDENCE

Q: May a private document be offered, and admitted in evidence both as documentary evidence and as
object evidence? Explain (2005 Bar)

A: Yes. A private document may be offered and admitted in evidence both as documentary evidence and as
object evidence. A document can also be considered as an object for purposes of the case. Objects as evidence
are those addressed to the senses of the court (Sec. 1, Rule 130)

Documentary evidence consists of writings or any material containing letters, words, numbers, figures,
symbols or other modes of written expressions, offered as proof of their contents (Sec. 2, Rule 130). A
tombstone may be offered in evidence to prove what is written on it and if the same tombstone is found on a
tomb, then it is object evidence. It can be considered as both documentary and object evidence (See: Gupit,
Jr., 1989)

Best Evidence Rule

Q: If the photocopies of official receipts and photocopies of affidavits were attached to the position paper
submitted by plaintiff in an action for unlawful detainer filed with Municipal Trial Court on which basis the
court rendered judgment in favor of plaintiff? Explain. (2000 Bar)

A: The claim of defendant is valid, because although summary procedure requires merely the submission of
position papers, the evidence submitted with the position paper must be admissible in evidence (Sec. 9,
Revised Rule of Summary Procedure). Photocopies of official receipts and affidavits are not admissible without
proof of loss of the original (Sec. 3, Rule 130).

Q: When A loaned a sum of money to B, A typed a single copy of the promissory note, which they both
signed. A made two photo (xeroxed) copies of the promissory note, giving one copy to B and retaining the
other copy. A entrusted the typewritten copy to his counsel for safekeeping. The copy with A’s counsel was
destroyed when the law office was burned.

a. In an action to collect on the promissory note, which is deemed to be the “original” copy for the purpose
of the “Best Evidence Rule”?

A: The copy that was signed and lost is the only “original” copy for purposes of the Best Evidence Rule (Sec. 4
[b], Rule 130).

b. Can the photocopies in the hands of the parties be considered “duplicate original copies?”

A: NO, They are not duplicate original copies because there are photocopies which were not signed (Mahilum
v. Court of Appeals, G.R. No. L-17970, June 30, 1966). They constitute secondary evidence (Sec. 5, Rule 130)

c. As counsel for A, how will you prove the loan given to A and B? (1997 Bar)

A: The loan given by A to B may be proved by secondary evidence through the xeroxed copies of the
promissory note. The rules provide that when the original document is lost or destroyed, or cannot be
produced in court, the offerer, upon proof of its execution or existence and the cause of its unavailability
without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order stated (Sec. 5, Rule 130).

Rules on Electronic Evidence (A.M. No. 01-7-01-SC)

Q: State the rule on the admissibility of an electronic evidence. (2003 Bar)

A: Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or
any other form of writing, such term shall be deemed to include an electronic document as defined in the
Rules (Sec. 1, Rule 3, Rules on Electronic Evidence).

An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by
the Rules of Court and related laws and is authenticated in the manner prescribed by thee Rules (Sec. 2, Rule
3, Id.). The authenticity of any private electronic document must be proved by evidence that it had been
digitally signed and other appropriate security measures have been applied (Sec. 2, Rule 5, Id.).

Q: When is an electronic evidence regarded as being the equivalent of an original document under the Best
Evidence Rule? (2003 Bar)

A: An electronic document shall be regarded as the equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data
accurately (Sec. 1, Rule 4, Id.).

Parol Evidence Rule

Q: Pedro filed a complaint against Lucio for the recovery of a sum of money based on a promissory note
executed by Lucio. In his complaint, Pedro alleged that although the promissory note says that it is payable
within 120 days, the truth is that the note is payable immediately after 90 days but that if Pedro is willing,
he may upon request of Lucio give the latter up to 120 days to pay the note. During the hearing, Pedro
testified that the truth is that the agreement between him and Lucio is for the latter to pay immediately
after ninety day’s time. Also, since the original note was with Lucio and the latter would not surrender to
Pedro the original note which Lucio kept in a place about one day’s trip from where he received the notice
to produce the note and in spite of such notice to produce the same within six hours from receipt of such
notice, Lucio failed to do so. Pedro presented a copy of such the note which was executed at the same time
as the original and with identical contents.

a. Over the objection of Lucio, will Pedro be allowed to testify as to the true agreement or contents of the
promissory note? Why?

A: Yes, because Pedro has alleged in his complaint that the promissory note does not express the true intent
and agreement of the parties. This is an exception to the parol evidence rule (Sec. 9[b] Rule 130).

b. Over the objection of Lucio, can Pedro present a copy of promissory note and have it admitted as valid
evidence in his favor? Why? (2001 Bar)

A: Yes, the copy in the possession of Pedro is a duplicate original and with identical contents (Sec. 4[b] Rule
130). Moreover, the failure of Lucio to produce the original of the note is excusable because he was not given
reasonable notice, as requirement under the Rules before secondary evidence may be presented (Sec. 6 Rule
130).

Authentication and proof of documents

Q: X states on direct examination that he once knew the facts being asked but he cannot recall them now.
When handed a written record of the facts he testifies that the facts are correctly stated, but that he has
never seen the writing before. Is the writing admissible as past recollection recorded? Explain. (1996 Bar)

A: No, because for the written record to be admissible as past recollection recorded, it must have been written
or recorded by X or under his direction at the time when the fact occurred, or immediately thereafter, or at
any other time when the fact was fresh in his memory and he knew that the same was correctly written or
recorded (Sec. 16, Rule 132). But in this case, X has never seen the writing before.

TESTIMONIAL EVIDENCE

Q: For over a year, Nenita had been estranged from her husband Walter because of the latter’s suspicion
that she was having an affair with Vladimir, a barangay kagawad who lived in nearby Mandaluyong. Nenita
lived in the meantime with her sister in Makati. One day, the house of Nenita’s sister inexplicably burned
almost to the ground. Nenita and her sister were caught inside the house but Nenita survived as she fled in
time, while her sister tried to save belongings and was caught inside when the house collapsed. As she was
running away from the burning house, Nenita was surprised to see her husband also running away from the
scene. Dr. Carlos, Walter’s psychiatrist who lived near the burned house and whom Walter medically
consulted after the fire, also saw Walter in the vicinity some minutes before the fire. Coincidentally, Fr.
Platino, the parish priest who regularly hears Walter’s confession and who heard it after the fire, also
encountered him not too far away from the burned house. Walter was charged with arson and at his trial,
the prosecution moved to introduce the testimonies of Nenita, the doctor and the priestconfessor, who all
saw Walter at the vicinity of the fire at about the time of the fire. (2006, 2013 Bar)

a. May the testimony of Nenita be allowed over the objection of Walter?

A: No. Nenita may not be allowed to testify against Walter. Under the Marital Disqualification Rule, during
their marriage, neither the husband nor the wife may testify for or against the other without the consent of
the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed
by one against the other or the latter's direct descendants or ascendants (Sec. 22, Rule 130). The foregoing
exceptions cannot apply since it only extends to a criminal case of one spouse against the other or the latter’s
direct ascendants or descendants. Clearly, Nenita is not the offended party and her sister is not her direct
ascendant or descendant for her to fall within the exception.

b. May the testimony of Dr. Carlos, Walter’s psychiatrist, be allowed over Walter’s objection?

A: Yes. The testimony of Walter’s psychiatrist may be allowed. The privileged communication contemplated
under Sec. 24 (c) Rule 130 of the Rules on Evidence involves only persons authorized to practice medicine,
surgery or obstetrics. It does not include a Psychiatrist. Moreover, the privileged communication applies only
in civil cases and not in a criminal case for arson. Besides, the subject of the testimony of Dr. Carlos was not in
connection with the advice or treatment given by him to Walter, or any information he acquired in attending
to Walter in a professional capacity. The testimony of Dr. Carlos is limited only to what he perceived at the
vicinity of the fire and at about the time of the fire.

c. May the testimony of Fr. Platino, the priestconfessor, be allowed over Walter’s objection?

A: Yes. The Priest can testify over the objection of Walter. The disqualification requires that the same were
made pursuant to a religious duty enjoined in the course of discipline of the sect or denomination to which
they belong and must be confidential and penitential in character, e.g., under the seal of confession (Sec. 24
(d) Rule 130). Here, the testimony of Fr. Platino was not previously subject of a confession of Walter or an
advice given by him to Walter in his professional character. The testimony was merely limited to what Fr.
Platino perceived “at the vicinity of the fire and at about the time of the fire.” Hence, Fr. Platino may be
allowed to testify.

Competency versus credibility of a witness

Q: Distinguish Competency of the witness and credibility of the witness. (2004 Bar)
A: Competency of the witness refers to a witness who can perceive and perceiving, can make known his
perception to others (Sec. 20, Rule 130), while credibility of the witness refers to a witness whose testimony is
believable.

DISQUALIFICATIONS OF WITNESSES

By reason of marriage

Q: Ody sued spouses Cesar and Baby for a sum of money and damages. At the trial, Ody called Baby as his
first witness. Baby objected, joined by Cesar, on the ground that she may not be compelled to testify against
her husband. Ody insisted and contended that after all, she would just be questioned about a conference
they had with the barangay captain, a matter which is not confidential in nature. The trial court ruled in
favor of Ody. Was the ruling proper? Will you answer be the same if the matters to be testified on were
known to Baby or acquired by her prior to her marriage to Cesar? Explain (1998, 2000, 2004 Bar)

A: No. Under the Rules on Evidence, a wife cannot be examined for or against her husband without his
consent, except in civil cases by one against the other, or in a criminal case for a crime committed by one
against the other. Since the case was filed by Ody against the spouses Cesar and Baby, Baby cannot be
compelled to testify against Cesar without his consent (Lezama v. Rodriguez, G.R. No. L-25643, June 27, 1968).

Q: On March 12, 2008, Mabini was charged with Murder for fatally stabbing Emilio. To prove the qualifying
circumstance of evident premeditation, the prosecution introduced on December 11, 2009 a text message,
which Mabini’s estranged wife Gregoria had sent to Emilio on the eve of his death, reading:
"Honey,pa2tayin u ni Mabini. Mtgal n nyang plano i2. Mg ingat u bka ma tsugi k."

a. A subpoena ad testificandum was served on Gregoria for her to be presented for the purpose of
identifying her cellphone and the text message. Mabini objected to her presentation on the ground of
marital privilege. Resolve.

A: The objection should be sustained on the ground of the marital disqualification rule (Sec. 22, Rule 130), not
on the ground of the “marital privilege” communication rule (Sec. 24, Rule 130). The marriage between Mabini
and Georgia is still subsisting and the situation at bar does not come under the exceptions to the
disqualification by reason of marriage.

b. Suppose Mabini’s objection in question A was sustained. The prosecution thereupon announced that it
would be presenting Emilio’s wife Graciana to identify Emilio’s cellphone bearing Gregoria’s text message.
Mabini objected again. Rule on the objection.

A: The objection should be overruled. The testimony of Graciana is not covered by the said marital
disqualification rule because she is not the wife of Mabini. Besides, Graciana will identify only the cellphone as
that of her husband Emilio, not the messages therein which to her are hearsay.

c. If Mabini’s objection in question B was overruled, can he object to the presentation of the text message
on the ground that it is hearsay?

A: No, Gregoria’s text message in Emilio’s cellphone is not covered by the hearsay rule because it is regarded
in the rules of evidence as independently relevant statement: the text message is not to prove the truth of the
fact alleged therein but only as to the circumstances of whether or not premeditation exists.

d. Suppose that shortly before he expired, Emilio was able to send a text message to his wife Graciana
reading "Nasaksak ako. D na me makahinga. Si Mabini ang may gawa ni2." Is this text message admissible
as a dying declaration? Explain. (2010 Bar)
A: Yes, the text message is admissible as a dying declaration since the same came from the victim who
“shortly” expired and it is in respect of the cause and circumstance of his death. The decisive factor that the
message was made and sent under consciousness of an impending death, is evidently attendant from the
victim’s statement: “D na me makakahinga” and the fact that he died shortly after he sent the message.
However, cellphone messages are regarded as electronic evidence, and in a recent case (Ang v. Court of
Appeals et al., G.R. No. 182835, April 20, 2010), the Supreme Court ruled that the Rules on Electronic Evidence
applies only to civil actions, quasi-judicial proceedings and administrative proceeding, not to criminal actions.

Q: On August 15, 2008, Edgardo committed estafa against Petronilo in the amount of P3 Million. Petronilo
brought his complaint to the National Bureau of Investigation, which found that Edgardo had visited his
lawyer twice, the first time on August 14, 2008 and the second on August 16, 2008; and that both visits
concerned the swindling of Petronilo. During the trial of Edgardo, the RTC issued a subpoena ad
testificandum to Edgardo's lawyer for him to testify on the conversations during their first and second
meetings. May the subpoena be quashed on the ground of privileged communication? Explain fully. (2008
Bar)

A: No, the subpoena may not be simply quashed on the allegation that the testimony to be elicited constitutes
privileged communication. It may be noted that the accused committed the crime of swindling on August 15,
2008, whereas he first visited his lawyers on August 14, 2008 or before he committed the swindling. Clearly
the conversations the accused had with his lawyer during such first visit, before he committed the swindling
cannot be protected by the privilege between attorney and client because the crime had not been committed
yet and it is no part of the lawyer’s professional duty to assist or aid in the commission of the crime; hence not
in the course of professional employment. The second visit by accused Edgardo to his lawyer the next day
(August 16, 2008) after the swindling was committed may also suffer from the same infirmity as the
conversations had during their first meeting inasmuch as there could not be complaint made immediately
after the estafa was committed. The privilege covering a lawyer-client relation under Sec. 24(b), Rule 130, may
not be invoked, as it is not a ground for quashal of a subpoena ad testificandum under Section 4, Rule 21 of
the Rules of Court. Although the subpoena ad testificandum may not be quashed the, privilege covers
conversations “with a view to professional employment.” It can be invoked at the trial but not quash the
subpoena.

Q: C is the child of the spouses H and W. H sued his wife W for judicial declaration of nullity of marriage
under Article 36 of the Family Code. In the trial, the following testified over the objection of W: C, H and D, a
doctor of medicine who used to treat W. Rule on W’s objections which are the following:

a. H cannot testify against her because of the rule on marital privilege;

A: The rule of marital privilege cannot be invoked in the annulment case under Article 36 of the Family Code
because it is a civil case filed by one against the other (Sec. 22, Rule 130).

b. C cannot testify against her because of the doctrine on parental privilege

A: The doctrine of parental privilege cannot likewise be invoked by W as against the testimony of C, their child.
C may not be compelled to testify but free to testify against her (Sec. 25, Rule 130; Art. 215 FC).

c. D cannot testify against her because of the doctrine of privileged communication between patient and
physician (1998).

A: D, as doctor who used to treat W, is disqualified to testify against W over her objection as to any advice or
treatment given by him or any information which he may have acquired in his professional capacity (Sec. 24[c],
Rule 130).
Q: Vida and Romeo are legally married. Romeo is charged in court with the crime of serious physical injuries
committed against Selmo, son of Vida, step-son of Romeo. Vida witnessed the infliction of the injuries on
Selmo by Romeo. The public prosecutor called Vida to the witness stand and offered her testimony as an
eyewitness. Counsel for Romeo objected on the ground of the marital disqualification rule under the Rules
of Court.

a. Is the objection valid?

A: No. While neither the husband nor the wife may testify for or against the other without the consent of the
affected spouse, one exception is if the testimony of the spouse is in a criminal case for a crime committed by
one against the other or the latter’s direct descendants or ascendants (Sec. 22, Rule 130). The case falls under
this exception because Selma is the direct descendant of the spouse Vida.

b. Will your answer be the same if Vida’s testimony is offered in a civil case for recovery of personal
property filed by Selmo against Romeo? (2000 Bar)

A: No. The marital disqualification rule applies this time. The exception provided by the rules is in a civil case
by one spouse against the other. The case here involves a case by Selmo for the recovery of personal property
against Vida’s spouse, Romeo.

Q: XYZ, an alien, was criminally charged of promoting and facilitating child prostitution and other sexual
abuses under Rep. Act No. 7610. The principal witness against him was his Filipina wife, ABC. Earlier, she
had complained that XYZ’s hotel was being used as a center for sex tourism and child trafficking. The
defense counsel for XYZ objected to the testimony of ABC at the trial of the child prostitution case and the
introduction of the affidavits she executed against her husband as a violation of espousal confidentiality and
marital privilege rule. It turned out that DEF, the minor daughter of ABC by her first husband who was a
Filipino, was molested by XYZ earlier. Thus, ABC had filed for legal separation from XYZ since last year. May
the court admit the testimony and affidavits of the wife, ABC, against her husband, XYZ, in the criminal case
involving child prostitution? Reason. (2004 Bar)

A: Yes. The court may admit the testimony and affidavits of the wife against her husband in the criminal case
where it involves child prostitution of the wife's daughter. It is not covered by the marital privilege rule. One
exception thereof is where the crime is committed by one against the other or the latter’s direct descendants
or ascendants (Sec. 22, Rule 130). A crime by the husband against the daughter is a crime against the wife and
directly attacks or vitally impairs the conjugal relation (Ordono v. Daquigan, G.R. No. L-39012 January 31,
1975).

Q: John filed a petition for declaration of nullity of his marriage to Anne on the ground of psychological
incapacity under Art. 36 of the Family Code. He obtained a copy of the confidential psychiatric evaluation
report on his wife from the secretary of the psychiatrist. Can he testify on the said report without offending
the rule on privileged communication? (2016 Bar)

A: Yes, John can testify. Under the rule on privileged communication, the husband or the wife, during or after
the marriage, cannot be examined without the consent of the other as to any communication received in
confidence by one from the other during the marriage except in a civil case filed by one against the other, or in
a criminal case for a crime committed by one agaisnst the other or the latter’s direct descendants or
ascendants. [Rule 130, Sec. 24(a), Rules of Court] In this cae, Anne cannot prevent John from testifying against
her since the petition for declaration of nullity is a civil case filed by one spouse against the other; hence, the
rule on privileged communication between the spouses does not apply. John could testify on the confidential
psychiatric evaluation report of his wife that he obtained from the secretary of the psychiatrist, without
offending the rule on privileged communication.
EXAMINATION OF A WITNESS

Judicial Affidavit (A.M. No. 12-8-8-SC)

Q: What are the contents of a judicial affidavit? (2016 Bar)

A: A judicial affidavit 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, and shall contain the following:

a. The name, age, residence or business address, and occupation of the witness;
b. 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;
c. A statement that the witness is answering the questions asked of him, fully conscious that he does so
under oath, and that he mayface criminal liability for false testimony or perjury;
d. Questions asked of the witness and his corresponding answers, consecutively numbered, that:
2. show the circumstances under which the witness acquired the facts upon which he testifies;
3. Elicit from him those facts which are relevant to the issues that the case presents; and
4. Identify the attached documentary and object evidence and establish their authenticity in
accordance with the Rules of Court.
e. The signature of the witness over his printed name; and
f. 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, A.M. No. 12-8-8-SC, Judicial Affidavit Rule)

Q: Pedro was charged with theft for stealing Juan's cellphone worth P20, 000.00. Prosecutor Marilag at the
pre-trial submitted the judicial affidavit of Juan attaching the receipt for the purchase of the cellphone to
prove civil liability. She also submitted the judicial affidavit of Mario, an eyewitness who narrated therein
how Pedro stole Juan's cellphone. At the trial, Pedro's lawyer objected to the prosecution's use of judicial
affidavits of her witnesses considering the imposable penalty on the offense with which his client was
charged. (2015)

a. Is Pedro's lawyer correct in objecting to the judicial affidavit of Mario?

A: Yes, Pedro’s lawyer is correct in objecting to the judicial affidavit of Mario. The Judicial Affidavit Rules shall
apply only to criminal actions where the maximum of the imposable penalty does not exceed six (6) years
(Section 9(a)(1), A.M. No. 12-8-9-SC or the Judicial Affidavit Rule). Here, the maximum imposable penalty for
the crime of theft of a cellphone worth P20,000 is prison mayor in its minimum to medium periods, or six
years and one day to eight years and one day. Thus, Pedro’s lawyer is correct in objecting to the judicial
affidavit of Mario.

b. Is Pedro's lawyer correct in objecting to the judicial affidavit of Juan?

A: No. Pedro’s lawyer is not correct in objecting to the judicial affidavit of Juan because the Judicial Affidavit
Rules apply with respect to the civil aspect of the actions, regardless of the penalties involved (Section 9, A.M.
No. 12-8- 8-SC or the Judicial Affidavit Rule). Here the judicial affidavit of Juan was offered to prove the civil
liability of Pedro. Thus, the objection of Pedro’s lawyer to the judicial affidavit of Juan is not correct.

c. At the conclusion of the prosecution's presentation of evidence, Prosecutor Marilag orally offered the
receipt attached to Juan's judicial affidavit, which the court admitted over the objection of Pedro's lawyer.
After Pedro's presentation of his evidence, the court rendered judgment finding him guilty as charged and
holding him civilly liable for P20,000.00. Pedro's lawyer seasonably filed a motion for reconsideration of the
decision asserting that the court erred in awarding the civil liability on the basis of Juan's judicial affidavit,
documentary evidence which Prosecutor Marilag failed to orally offer. Is the motion for reconsideration
meritorious? (2015 Bar)

A: No. The motion for reconsideration is not meritorious. The judicial affidavit is not required to be orally
offered as separate documentary evidence, because it is filed in lieu of the direct testimony of the witness. It is
offered, at the time the witness is called to testify, and any objection to it should have been made at the time
the witness was presented (Section 6 and 8, A.M. No. 12-8-8-SC or the Judicial Affidavit Rule).

Since the receipt attached to the judicial affidavit was orally offered, there was enough basis for the court to
award civil liability.

Q: Aside from asking a witness to explain and supplement his answer in the cross-examination, can the
proponent ask in re-direct examination questions on matters not dealt with during cross-examination?
(1997 Bar)

A: Yes, on redirect examination, questions on matters not dealt with during the cross-examination may be
allowed by the court in its discretion (Sec. 7, Rule 132).

Q: Aside from asking the witness on matters stated in his re-direct examination, can the opponent in his re-
cross examination ask questions on matters not dealt with during the re-direct? (1997 Bar)

A: Yes, the opponent in his re-cross-examination may also ask questions on such other matters as may be
allowed by the court in its discretion (Sec. 8, Rule 132).

Q: After plaintiff has formally submitted his evidence, he realized that he had forgotten to present what is
considered an important evidence. Can he recall a witness? (1997 Bar)

A: Yes, after formally submitting his evidence, the plaintiff can recall a witness with leave of court. The court
may grant or withhold leave in its discretion as the interests of justice may require (Sec. 9, Rule 132).

Q: As counsel of an accused charged with homicide, you are convinced that he can be utilized as a state
witness. What procedure will you take? (2006 Bar)

A: As counsel for the accused, I will advise my client to ask for a reinvestigation and convince the prosecutor
for him to move for the discharge of my client as a state witness, or the accused can apply as a state witness
with the Department of Justice pursuant to R.A. No. 6981, The Witness Protection, Security and Benefit Act.
The right to prosecute vests the prosecutor with a wide range of discretion, including what and whom to
charge (Soberano v. People, G.R. No. 154629, October 5, 2005).

Admissions and confessions

Q: A was accused of having raped X. Rule on the admissibility of the following pieces of evidence:

a. An offer of A to marry X; and

A: A’s offer to marry X is admissible in evidence an Implied admission of guilt because rape cases are not
allowed to be compromised (Sec. 27, Rule 130; People v Domingo, G.R. No. 97921, September 8, 1993).

b. A pair of short pants allegedly left by A at the crime which the court, over the objection of A, required
him to put on, and when he did, it fit him well. (1998 Bar)

A: The pair of short pants, which fit the accused well, is circumstantial evidence of his guilt, although standing
alone it cannot be the basis of conviction. The accused cannot object to the court requiring him to put the
short pants on. It is not part of his right against self-incrimination because it is a mere physical act.
Q: A, while driving his car, ran over B. A visited B at the hospital and offered to pay for his hospitalization
expenses. After the filing of the criminal case against A for serious physical injuries through reckless
imprudence, A’s insurance carrier offered to pay for the injuries and damages suffered by B. the offer was
rejected because B considered the amount offered was inadequate.

a) Is the offer by A to pay hospitalization expenses of B admissible in evidence?

A: The offer by A to pay the hospitalization expenses of B is not admissible in evidence to prove his guilt in
both civil and criminal cases (Sec. 27[4], Rule 130).

b) Is the offer by A’s insurance carrier to pay for injuries and damages of B admissible in evidence? (1997
Bar)

A: No. It is irrelevant. The obligation of the insurance company is based on the contract of insurance and is not
admissible in evidence against the accused because it was not offered by the accused but by the insurance
company which is not his agent.

Res inter alios acta rule

Q: Bembol was charged with rape. Bembol's father, Ramil, approached Artemon, the victim's father, during
the preliminary investigation and offered P1 Million to Artemon to settle the case. Artemon refused the
offer.

a. During trial, the prosecution presented Artemon to testify on Ramil's offer and thereby establish an
implied admission of guilt. Is Ramil's offer to settle admissible in evidence?

A: No. The offer to settle not being made by the accused or with his participation is not admissible against him
under the rule of res inter alios acta. No implied admission of guilt can be drawn from efforts to settle a
criminal case out of court, where the accused had no participation in such negotiation (People v. Godoy, G.R.
Nos. 115908-09, December 6, 1995).

b. During the pre-trial, Bembol personally offered to settle the case for P1 Million to the private prosecutor,
who immediately put the offer on record in the presence of the trial judge. Is Bembol's offer a judicial
admission of his guilt? (2008 Bar)

A: No. The offer is not a judicial admission of guilt because it has not been reduced in writing or signed by the
accused. The Rule on pre-trial in criminal cases (Sec. 2, Rule 118) requires that all agreements or admissions
made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and
counsel, otherwise, they cannot be used against the accused.

Q: What are the requirements in order that an admission of guilt of an accused during a custodial
investigation be admitted in evidence? (2006 Bar)

A: An admission of guilt during a custodial investigation is a confession. To be admissible in evidence, the

requirements are: (1) the confession must be voluntary; (2) the confession must be made with the assistance
of competent and independent counsel; (3) the confession must be express; and (4) the confession must be in
writing (People v. Principe, G.R. No. 135862, May 2, 2002).

Q: If the accused on the witness stand repeats his earlier uncounseled extrajudicial confession implicating
his coaccused in the crime charged, is that testimony admissible in evidence against the latter? (1998 Bar)

A: Yes. The accused can testify by repeating his earlier uncounseled extrajudicial confession, because he can
be subjected to cross-examination.
Q: What is the probative value of a witness’ Affidavit of Recantation? (1998 Bar)

A: On the probative value of an affidavit of recantation, courts look with disfavor upon recantations because
they can easily be secured from witnesses, usually through intimidation or for a monetary consideration.
Recanted testimony is exceedingly unreliable. There is always the probability that it will be repudiated (Molina
v. People, G.R. Nos. 70168-69, July 24, 1996).

Q: X and Y were charged with murder. Upon application of the prosecution, Y was discharged from the
Information to be utilized as a state witness. The prosecutor presented Y as witness but forgot to state the
purpose of his testimony much less offer it in evidence. Y testified that he and X conspired to kill the victim
but it was X who actually shot the victim. The testimony of Y was the only material evidence establishing
the guilt of X. Y was thoroughly cross-examined by the defense counsel. After the prosecution rested its
case, the defense filed a motion for demurrer to evidence based on the following grounds:

1. The testimony of Y should be excluded because its purpose was not initially stated and it was not formally
offered in evidence as required by Section 34, Rule 132 of Rules of Evidence; and

2. Y’s testimony is not admissible against X pursuant to the rule on “res inter alios acta.” Rule on the motion
for demurrer to evidence on the above grounds. (2003 Bar)

A: The demurrer to the evidence should be denied because:

1. The testimony of Y should not be excluded because the defense counsel did not object to his testimony
despite the fact that the prosecutor forgot to state its purpose or offer it in evidence. Moreover, the defense
counsel thoroughly cross-examined Y and thus waived the objection.

2. The res inter alios acta rule does not apply because Y testified in open court and was subjected to cross
examination.

Q: Arrested in a buy-bust operation, Edmond was brought to the police station where he was informed of
his constitutional rights. During the investigation, Edmond refused to give any statement. However, the
arresting officer asked Edmond to acknowledge in writing that six (6) sachets of “shabu” were confiscated
from him. Edmond consented and also signed a receipt for the amount of P3, 000.00, allegedly representing
the “purchase price of the shabu.” At the trial, the arresting officer testified and identified the documents
executed and signed by Edmond. Edmond’s lawyer did not object to the testimony. After the presentation
of the testimonial evidence, the prosecutor made a formal offer of evidence which included the documents
signed by Edmond. Edmond’s lawyer objected to the admissibility of the documents for being the “fruit of
the poisoned tree.” Resolve the objection with reasons. (2009 Bar)

A: The objection to the admissibility of the documents which the arresting officer asked Edmond to sign
without the benefit of counsel, is well-taken. Said documents having been signed by the accused while under
custodial investigation, imply an “admission” without the benefit of counsel, that the shabu came from him
and that the P3, 000.00 was received by him pursuant to the illegal selling of the drugs. Thus, it was obtained
by the arresting officer in clear violation of Section 12(3), Article III of the 1987 Constitution, particularly the
right to be assisted by the counsel during custodial investigation. Moreover, the objection to the admissibility
of the evidence was timely made, i.e., when the same is formally offered.

HEARSAY RULE

Exceptions

Q: Distinguish clearly but briefly between hearsay evidence and opinion evidence. (2004 Bar)
A: Hearsay evidence consists of testimony that is not based on personal knowledge of the person testifying,
(see: Sec. 36, Rule 130), while opinion evidence is expert evidence based on the personal knowledge skill,
experience or training of the person testifying (Sec. 49, Id.) and evidence of an ordinary witness on limited
matters (Sec. 50, Id.).

Q: What are the exceptions to hearsay rule? (1999 Bar)

A: The exceptions to the hearsay rule are: dying declaration, declaration against interest, act or declaration
about pedigree, family reputation or tradition regarding pedigree, common reputation, part of the res gestae,
entries in the course of business, entries in official records, commercial lists and the like, learned treatises, and
testimony or deposition at a former proceeding (Secs. 37 to 47, Rule 130).

Q: A foreign dog trained to sniff dangerous drugs from packages, was hired by FDP Corporation, a door to
door forwarder company, to sniff packages in their depot at the international airport. In one of the
routinary inspections of packages waiting to be send to the United States of America (USA), the dog sat
beside one of the packages, a signal that the package contained dangerous drugs. Thereafter, the guards
opened the package and found two (2) kilograms of cocaine. The owner objected of the package was
arrested and charges were filed against him. During the trial, the prosecution, through the trainer who was
present during the incident and an expert in this kind of field, testified that the dog was highly trained to
sniff packages to determine if the contents were dangerous drugs and the sniffing technique of their highly
trained dogs was accepted worldwide and had been successful in dangerous drugs operations. The
prosecution moved to admit this evidence to justify the opening of the package. The accused objected on
the grounds that : (i) the guards had no personal knowledge of the contents of the package before it was
opened; (ii) the testimony of the trainer of the dog is hearsay; and (iii) the accused could not crossexamine
the dog. Decide. (2014 Bar)

A: The objections of the accused should be overruled. An evidence is admissible when it is relevant to the
issue and is not excluded by the law or the rules (Section 3, Rule 128). Under Section 36, Rules 130 of the Rules
of Court, a witness can testify only to those which he knows of his personal knowledge and derived from his
own perception. The contention that the guards had no personal knowledge of the contents of the package
before it was opened is without merit. The guards can testify as to the facts surround the opening of the
package since they have personal knowledge of the circumstances thereof, being physically present at the
time of its discovery.

On the other hand, the testimony of the trainer of the dog is not hearsay based on the following grounds:

a. He has personal knowledge of the facts in issue, having witnessed the same;
b. Hearsay merely contemplates an out-of-court declaration of a person which is being offered to prove
the truthfulness and veracity of the facts asserted therein;
c. He is an expert witness, hence, his testimony may constitute an exception to the hearsay rule;
d. The accused has the opportunity to cross-examine him; and
e. Testimony of a witness as to statements made by nonhuman declarants does not violate the rule
against hearsay. The law permits the so-called “non-human evidence” on the ground that machines
and animals, unlike humans, lack a conscious motivation to tell falsehoods, and because the workings
of machines can be explained by human witnesses who are then subject to cross-examination by
opposing counsel. (City of Webster Groves v. Quick. 323 S.W. 2d 386 [Mo. 1959]; Buck v. State, 138 P.
2d 115 [Okla. 1943]; Herrera, 1999).

Conversely, the accused may not argue that he cannot crossexamine the dog as the Constitutional right to
confrontation refers only to witnesses. As alluded, the human witnesses who have explained the workings of
the non-human evidence is the one that should be cross-examined. Hence, the contention of the accused that
the he could not crossexamine the dog is misplaced. Ergo, there is no doubt that the evidence of the
prosecution is admissible for being relevant and competent.

Dying declaration

Q: Requisites of Dying Declaration (1998 Bar)

A: The requisites for the admissibility of a dying declaration are:

(a) the declaration is made by the deceased under the consciousness of his impending death;
(b) the deceased was at the time competent as a witness;
(c) the declaration concerns the cause and surrounding circumstances of the declarant’s death; and
(d) the declaration is offered in a (criminal) case wherein the declarant's death is the subject of inquiry
(People v. Santos, G.R. No. 94545, April 4, 1997).

Q: Romeo is sued for damages for injuries suffered by the plaintiff in a vehicular accident. Julieta, a witness
in court, testifies that Romeo told her (Julieta) that he (Romeo) heard Antonio, a witness to the accident,
give an excited account of the accident immediately after its occurrence. Is Julieta’s testimony admissible
against Romeo over proper and timely objection? Why? (2002 Bar)

A: No, Julieta’s testimony is not admissible against Romeo, because while the excited account of Antonio, a
witness to the accident, was told to Romeo, it was only Romeo who told Julieta about it, which makes it
hearsay.

Q: Maximo filed an action against Pedro, the administrator of the estate of deceased Juan, for the recovery
of a car which is a part of the latter’s estate. During the trial, Maximo presented witness Mariano who
testified that he was present when Maximo and Juan agreed that the latter would pay a rental of P20,000
for the use of Maximo’s car for one month after which Juan should immediately return the car to Maximo.
Pedro objected to the admission of Mariano’s testimony. If you were the judge, would you sustain Pedro’s
objection? Why?

A: No, the testimony is admissible in evidence because witness Mariano who testified as to what Maximo and
Juan, the deceased person agreed upon, is not disqualified to testify on the agreement. Those disqualified are
parties or assignors of the parties to a case, or persons in whose behalf a case is prosecuted, against the
administrator or Juan’s estate, upon a claim or demand against his estate as to any matter of fact occurring
before Juan’s death (Sec. 23, Rule 130).

Q: The accused was charged with robbery and homicide. The victim suffered several stab wounds. It appears
that eleven (11) hours after the crime, while the victim was being brought to the hospital in a jeep, with his
brother and a policeman as companions, the victim was asked certain questions which he answered,
pointing to the accused as his assailant. His answers were put down in writing, but since he was in a critical
condition, his brother and the policemen signed the statement. Is the statement admissible as a dying
declaration? (1999 Bar)

A: Yes. The statement is admissible as a dying declaration of the victim subsequently dies and his answers
were made under the consciousness of impending death (Sec. 37, Rule 130). The fact that he did not sign the
statement point to the accused as his assailant, because he was in critical condition, does not affect its
admissibility as a dying declaration. A dying declaration need not be in writing (People v. Viovicente, G.R. No.
118707, February 2, 1998).

Family reputation or tradition regarding pedigree

Q: Linda and spouses Arnulfo and Regina Ceres were coowners of a parcel of land. Linda died intestate and
without any issue. Ten (10) persons headed by Jocelyn, claiming to be the collateral relatives of the
deceased Linda, filed an action for partition with the RTC praying for the segregation of Linda’s ½ share,
submitting in support for their petition the baptismal certificates of seven of the petitioners, a family bible
belonging to Linda in which the names of the petitioners have been entered, a photocopy of the birth
certificate of Jocelyn, and a certification of the local civil registrar that its office had been completely razed
by fire. The spouses Ceres refused partition on the following grounds: 1) the baptismal certificates of the
parish priest are evidence only of the administration of the sacrament of baptism and they do not prove
filiation of the alleged collateral relatives of the deceased; 2) entry in the family bible is hearsay; 3) the
certification of the registrar on nonavailability of the records of birth does not prove filiation; 4) in partition
case where filiation to the deceased is in dispute, prior and separate judicial declaration of heirship in a
settlement of estate proceedings is necessary; and 5) there is need for publication as real property is
involved. As counsel for Jocelyn and her co-petitioners, argue against the objections of the spouses Ceres so
as to convince the court to allow the partition. Discuss each of the five (5) arguments briefly but completely
(2000 Bar)

A:

1. The baptismal certificate can show the filiation or prove pedigree. It is one of the other means allowed
under the Rules of Court and special laws to show pedigree (Trinidad v. Court of Appeals, G.R. No. 118904,
April 20, 1998; Heirs of Ignacio Conti v. Court of Appeals, G.R. No. 118464, December 21, 1998).

2. Entries in the family bible may be received as evidence of pedigree (Sec. 40, Rule 130).

3. The certification by the civil registrar of the nonavailability of records is needed to justify the presentation of
secondary evidence, which is the photocopy of the birth certificate of Jocelyn (Heirs of Ignacio Conti v. Court
of Appeals, supra).

4. Declaration of heirship in a settlement proceeding is not necessary. It can be made in the ordinary action for
partition wherein the heirs are exercising the right pertaining to the decedent, their predecessor-ininterest, to
ask for partition as co-owners (Id).

5. Even if real property is involved, no publication is necessary, because what is sought is the mere segregation
of Linda’s share in the property (Sec. 1, Rule 69, Id.).

Part of the res gestae

Q: Dencio barged into the house of Marcela, tied her to a chair and robbed her of assorted pieces of jewelry
and money. Dencio then brought Candida, Marcela’s maid, to a bedroom where he raped her. Marcela
could hear Candida crying and pleading; “Huwag! Maawa ka sa akin!”After raping Candida, Dencio fled from
the house with loot. Candida then untied Marcela and rushed to the police station about a kilometer away
and told Police Officer Roberto Maawa that Dencio had barged into the house of Marcela, tied the latter to
a chair and robbed her of her jewelry and money. Candida also related to the police officer that despite her
pleas, Dencio had raped her. The policemen noticed that Candida was hysterical and on the verge of
collapse. Dencio was charged with robbery with rape. During the trial, Candida can no longer be located.

a. If the prosecutor presents Police Officer Roberto Maawa to testify on what Candida had told him, would
such testimony of the policemen be hearsay? Explain. (1999, 2009 Bar)

A: No. The testimony of the policemen is not hearsay. It is part of the res gestae. It is also an independently
relevant statement. The police officer testified his own personal knowledge, not to the truth of Candida’s
statement, i.e., that she told him, despite her pleas, Dencio has raped her (People v. Gaddi, G.R. No. 74065,
February 27, 1989).

b. If the police officer will testify that he noticed Candida to be hysterical and on the verge of collapse,
would such testimony be considered as opinion, hence, inadmissible? Explain. (2005 Bar)

A: No. It cannot be considered as an opinion, because he was testifying on what he actually observed. The last
paragraph of Sec. 50, Rule 130, Revised Rules of Evidence, expressly provides that a witness may testify on his
impressions of the emotion, behavior, condition or appearance of a person.

Q: While passing by a dark uninhabited part of their barangay, PO2 Asintado observed shadows and heard
screams from a distance. PO2 Asintado hid himself behind the bushes and saw a man beating a woman
whom he recognized as his neighbour, Kulasa. When Kulasa was already in agony the man stabbed her and
she fell on the ground. The man hurriedly left thereafter. PO2 Asintado immediately went to Kulasa’s
rescue. Kulasa who was then in a state of hysteria, kept mentioning to PO2 Asintado “Si Rene, gusto akong
patayin! Sinaksak niya ako!” When PO2 Asintado was about to carry her, Kulasa refused and said “Kaya ko.
Mababaw lang to. Habulin mo si Rene.” The following day, Rene learned of Kulasa’s death and, bothered by
his conscience, surrendered to the authorities with his counsel. As his surrender was broadcasted all over
media, Rene opted to release his statement to the press which goes: “I believe that I am entitled to the
presumption of innocence until my guilt is proven beyond reasonable doubt. Although I admit that I
performed acts that may take one’s life away, I hope and pray that justice will be served in the right way.
God bless us all. (Sgd.) Rene”

The trial court convicted Rene of homicide on the basis of PO2 Asintado’s testimony, Kulasa’s statements,
and Rene’s statement to the press. On appeal, Rene raises the following errors:

a. The trial court erred in giving weight to PO2 Asintado’s testimony, as the latter did not have personal
knowledge of the facts in issue, and violated Rene’s right to due process when it considered Kulasa’s
statements despite lack of opportunity for her cross-examination.

A: The trial court did not err in giving weight to PO2 Asintado’s testimony. While a witness can only testify as
to those facts which he has personal knowledge, the Rules provide that a statement made under the influence
of a startling event witnessed by the person who made the declaration before he had time to think and make
up a story, or to concoct or contrive a falsehood, or to fabricate an account, and without any undue influence
in obtaining it, aside from referring to the event in question or its immediate attending circumstances, is an
exception being part of res gestae (Belbis, Jr., v. People, G.R. No. 181052, November 14, 2012).

In the case, the statements made by PO2 Asintado constitutes part of res gestae since the same were made
without any opportunity to fabricate and while a startling occurrence was actually taking place. In addition,
the statement of PO2 Asintado may fall within the purview of the doctrine of independent relevant statement,
where only the fact that such statements were made is relevant, and the truth and falsity thereof is immaterial
(People v. Malibiran, G.R. No. 178301, April 24, 2009).

On the other hand, Kulasa’s statements are also admissible as part of res gestae since the same were made
under the influence of a startling event and without any opportunity to concoct or devise a falsehood.

b. The trial court erred in holding that Rene’s statement to the press was a confession which, standing
alone, would be sufficient to warrant a conviction. Resolve. (2014 Bar)

A: The trial court did not err in holding that Rene’s statement to the press is a confession. Rene’s confessions
to the media were properly admitted because statements spontaneously made by a suspect to news reporters
on a televised interview are deemed voluntary and are admissible in evidence (People v. Hipona, G.R. No.
185709, February 18, 2010).

Entries in official records

Q: X was charged with robbery. On the strength of a warrant of arrest issued by the court, X was arrested by
police operatives. They seized from his person a handgun. A charge for illegal possession of firearm was also
filed against him. In a press conference called by the police, X admitted that he had robbed the victim of
jewelry valued at P500,000. The robbery and illegal possession of firearm cases were tried jointly. The
prosecution presented in evidence a newspaper clipping of the report to the reporter who was present
during the press conference stating that X admitted the robbery. It likewise presented a certification of the
PNP Firearms and Explosive Office attesting that the accused had no license to carry any firearm. The
certifying officer, however, was not presented as a witness. Both pieces of evidence were objected to by the
defense.

a. Is the newspaper clipping admissible in evidence against X?

A: Yes, the newspaper clipping is admissible in evidence against X regardless of the truth or falsity of a
statement, the hearsay rule does not apply and the statement may be shown where the fact that it is made
relevant. Evidence as to making of such statement is not secondary but primary, for the statement itself may
constitute a fact in issue or be circumstantially relevant as to the existence of such fact (Gotesco Investment
Corporation v. Chatto, G.R. No. L-87584 June 16, 1992).

b. Is the certification of the PNP Firearm and Explosive Office without the certifying officer testifying on it
admissible in evidence against X? (2003 Bar)

A: Yes, the certification is admissible in evidence against X because a written statement signed by an officer
having the custody of an official record or by his deputy that after diligent search no record or entry of a
specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is
admissible as evidence that the records of his office contain no such record of entry (Sec. 28, Rule 132).

Opinion rule

Q: At Nolan’s trial for possession and use of the prohibited drugs, known as “shabu” his girlfriend Kin,
testified that on a particular day, she would see Nolan very prim and proper, alert and sharp, but that three
days after, he would appear haggard, tired and overly nervous at the slightest sound he would hear. Nolan
objects to the admissibility of Kim’s testimony on the ground that Kim merely stated her opinion without
having been first qualified as expert witness. Should you as a judge exclude the testimony of Kim? (1994
Bar)

A: No, the testimony of Kim should not be excluded. Even though Kim is not an expert witness, Kim may testify
on her impressions of the emotion, behavior, condition or appearance of a person (Sec. 50, last par Rule 130).

Character evidence

Q: D was prosecuted for homicide for allegedly beating up V to death with an iron pipe. a. May the
prosecution introduce evidence that V had a good reputation for peacefulness and non-violence? Why?

A: The prosecution may introduce evidence of the good or even bad moral character of the victim if it tends to
establish in any reasonable degree the probability or improbability of the offense charged (Sec. 51[a][3], Rule
130). In this case, the evidence is not relevant.

b. May D introduce evidence of specific violent acts by V? Why? (2002 Bar)

A: Yes, D may introduce evidence of specific violent acts by V. Evidence that one did or did not do a certain
thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another
time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit,
custom or usage, and the like (Sec. 34, Rule 130).

Q: In a prosecution for murder, the prosecutor asks accused Darwin if he had been previously arrested for
violation of the Anti- Graft and Corrupt Practices Act. As defense counsel, you object. The trial court asks
you on what ground/s. Respond. (2010 Bar)

A: The objection is on the ground that the fact sought to be elicited by the prosecution is irrelevant and
immaterial to the offense under prosecution and trial. Moreover, the Rules do not allow the prosecution to
adduce evidence of bad moral character of the accused pertinent to the offense charged, except on rebuttal
and only if it involves a prior conviction by final judgment (Sec. 51, Rule 130).

Offer and objection

Q: What are the two kinds of objections? Explain each briefly. Give example each. (1997 Bar)

A: Two kinds of objections are: (1) the evidence being presented is not relevant to the issue; and (2) the
evidence is incompetent or excluded by the law or the rules (Sec. 3, Rule 138). An example of the first is when
the prosecution offers as evidence the alleged offer of an insurance company to pay for the damages suffered
by the victim in a homicide case. Examples of the second are evidence obtained in violation of the
Constitutional prohibition against unreasonable searches and seizures and confessions and admissions in
violation of the rights of a person under custodial investigation.

Q: A trial court cannot take into consideration in deciding a case an evidence that has not been “formally
offered.” When are the following pieces of evidence formally offered? (1994, 1997 Bar)

a. Testimonial evidence

A: Testimonial evidence is formally offered at the time the witness is called to testify (Sec. 35. first par., Rule
132).

b. Documentary evidence

Documentary evidence is formally offered after the presentation of the testimonial evidence (Sec. 35, second
par., Rule 132).

c. Object evidence

A: The same is true with object evidence. It is also offered after the presentation of the testimonial evidence.

Q: Counsel A objected to a question posed by opposing Counsel B on the grounds that it was hearsay and it
assumed a fact not yet established. The judge banged his gavel and ruled by saying "Objection Sustained".
Can Counsel 8 ask for a reconsideration of the ruling? Why? (2012 Bar)

A: Yes, Counsel B may ask the Judge to specify the ground/s relied upon for sustaining the objection and
thereafter move its reconsideration thereof (Sec. 38, Rule 132).

2003 Bar: X and Y were charged with murder. Upon application of the prosecutor, Y was discharged from
the Information to be utilized as a state witness. The prosecutor presented Y as witness but forgot to state
the purpose of his testimony much less offer it in evidence. Y testified that he and X conspired to kill the
victim but it was X who actually shot the victim. The testimony of Y was the only material evidence
establishing the guilt of X. Y was thouroughly cross-examined by the defense counsel. After the prosecution
rested its case, the defense filed a motion for demurrer to evidence based on the following grounds: (6%)

The testimony should be excluded because its purpose was not initially stated and it was not formally
offered in evidence as required by Section 34, Rule 132. Rule on the motion.

Answer: The demurrer to evidence must be denied because: The testimony of Y should not be excluded
because the defense counsel did not object to his testimony despite the fact that the prosecutor forgot to
state its purpose or offer it in evidence. Moreover, the defense counsel thoroughly cross-examined Y and thus
waived the objection.

2003 Bar: X was charged with robbery. On the strength of a warrant of arrest issued by the court, X was
arrested by polic operatives. They seized from his person a handgun. A charge for illegal possession of
firearm was also filed against him. In a press conference called by the police, X admitted that he had robbed
the victim of jewelry valued at P500,000.00.

The robbery and illegal possession of firearm cases were tried jointly. The prosecution presented in
evidence a newspaper clipping of the report to the reporter who was present during the press conference
stating that X admitted the robbery. It likewise presented a certification of the PNP Firearms and Explosive
Office attesting that the accused had no license to carry any firearm. The certifying officer, however, was
not presented as a witness. Both pieces of evidence were objected to by the defense.

Is the certification of the PNP Firearms and Explosive Office without the certifying officer testifying on it
admissible in eveidence against X? (6%)

Answer: Yes. The certification is admissible in evidence against X because a written statement signed by an
officer having the custody of an official official record or by his deputy that after diligent search no record or
entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above
provided, is admissible as evidence that the records of his office contain no such record or entry (Sec. 28, Rule
132).

2007 Bar: G files a complaint for recovery of possession and damages against F. In the course of the trial, G
marked his evidence but his counsel failed to file a formal offer of evidence. F then presented in evidence
tax declarations in the name of his father to establish that his father is a co-owner of the property. The
court ruled in favor of F, saying that G failed to prove sole ownership of the property in the face of F’s
evidence. Was the court correct? Explain briefly. (5%)

Answer: Yes. The court shall consider no evidence which has not been formally offered. The trial court
rendered judgment considering only the evidence offered by F. The offer is necessary because it is the duty of
the judge to rest his findings of fact and his judgment only and strictly upon the evidence offered bythe
partied at the trial and because the purpose for which the evidence is offered must be specified (Sec. 34, Rule
132). However, there had been exceptional instances when the Court allowed exhibited documents which
were not offered but duly identified by testimony and incorporated in the records of the case (People v.
Pecardal, GR No. 71381, 11/24/1986; People v. Mate, L-34754, 03/21/1981).

Offer and objection

Q: What are the two kinds of objections? Explain each briefly. Give example each. (1997 Bar)

A: Two kinds of objections are: (1) the evidence being presented is not relevant to the issue; and (2) the
evidence is incompetent or excluded by the law or the rules (Sec. 3, Rule 138). An example of the first is when
the prosecution offers as evidence the alleged offer of an insurance company to pay for the damages suffered
by the victim in a homicide case.

Examples of the second are evidence obtained in violation of the Constitutional prohibition against
unreasonable searches and seizures and confessions and admissions in violation of the rights of a person
under custodial investigation.

Q: A trial court cannot take into consideration in deciding a case an evidence that has not been “formally
offered.” When are the following pieces of evidence formally offered? (1994, 1997 Bar)

a. Testimonial evidence

A: Testimonial evidence is formally offered at the time the witness is called to testify (Sec. 35. first par., Rule
132).

b. Documentary evidence

Documentary evidence is formally offered after the presentation of the testimonial evidence (Sec. 35, second
par., Rule 132).

c. Object evidence

A: The same is true with object evidence. It is also offered after the presentation of the testimonial evidence.

Q: Counsel A objected to a question posed by opposing Counsel B on the grounds that it was hearsay and it
assumed a fact not yet established. The judge banged his gavel and ruled by saying "Objection Sustained".
Can Counsel 8 ask for a reconsideration of the ruling? Why? (2012 Bar)

A: Yes, Counsel B may ask the Judge to specify the ground/s relied upon for sustaining the objection and
thereafter move its reconsideration thereof (Sec. 38, Rule 132).

Q: Gizel filed a complaint for recovery of possession and damages against Fara. In the course of the trial, Gizel
marked his evidence but his counsel failed to file a formal offer of evidence. Fara then presented in evidence
tax declarations in the name of his father to establish that his father is a co-owner of the property. The court
ruled in favor of Fara, saying that Gizel failed to prove sole ownership of the property in the face of Fara’s
evidence. Was the court correct? Explain briefly. (2007 Bar)

A: YES. The court shall consider no evidence which has not been formally offered. The trial court rendered
judgment considering only the evidence offered by Fara. The offer is necessary because it is the duty of
the judge to rest his findings of fact and his judgment only and strictly upon the evidence offered by the
parties at the trial. (People v. Pecardal, G.R. No. 71381, November 24, 1986)

Q: Aiza and Matet were charged with murder. Upon application of the prosecution, Matet was discharged
from the Information to be utilized as a State witness. The prosecutor presented Matet as witness but
forgot to state the purpose of his testimony much less offer it in evidence. Matet testified that she and Aiza
conspired to kill the victim but it was Aiza who actually shot the victim. The testimony of Matet was the
only material evidence establishing the guilt of Aiza. Matet was thoroughly cross-examined by the defense
counsel. After the prosecution rested its case, the defense filed a motion for demurrer to evidence based on
the following grounds:

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

Rule on the motion for demurrer to evidence on the above grounds.

A:

1. The demurrer to evidence should be denied because the defense counsel did not object to her testimony
despite the fact that the prosecutor forgot to state its purpose and offer it in evidence. Moreover, the defense
counsel thoroughly cross-examined Matet and thus waived the objection.

2. The res inter alios acta rule does not apply because Matet testified in open court and was subjected to
cross-examination.

Q: Ellen Harper and her son, Jonathan Harper filed a case for damages against Shangri-La Hotel and Resort,
Inc. for the death of Christian Harper. To prove heirship of the plaintiffs-appellees, they presented several
documents (Birth Certificates, Marriage Certificate, and Certificate from the Oslo Probate Court) which were
all kept in Norway. The documents had been authenticated by the Royal Norwegian Ministry of Foreign
Affairs and bore the official seal of the Ministry and signature of one, Tanja Sorlie. The documents were also
accompanied by an Authentication by the Consul, Embassy of the Republic of the Philippines in Stockholm,
Sweden to the effect that, Tanja Sorlie was duly authorized to legalize official documents for the Ministry.
ShangriLa Hotel however, questioned their filiation with the deceased assailing that the documents
presented were incompetent for failing to comply with the requirement of authentication. Is the contention
correct?

A: NO. Although the documents were not attested by the officer having the legal custody of the record or by
his deputy in the manner required in Section 25 of Rule 132, and said documents did not comply with the
requirement under Section 24 of Rule 132 to the effect that if the record was not kept in the Philippines a
certificate of the person having custody must accompany the copy of the document that was duly attested
stating that such person had custody of the documents, the deviation was not enough reason to reject the
utility of the documents for the purposes they were intended to serve. The official participation in the
authentication process of Tanja Sorlie of the Royal Ministry of Foreign Affairs of Norway and the attachment of
the official seal of that office on each authentication indicated that the documents were of a public nature in
Norway, not merely private documents.

That rules of procedure may be mandatory in form and application does not forbid a showing of substantial
compliance under justifiable circumstances, because substantial compliance does not equate to a disregard of
basic rules. For sure, substantial compliance and strict adherence are not always incompatible and do not
always clash in discord. (Makati Shangri-La Hotel and Resort, Inc. v. Harper, G.R. No. 189998, August 29, 2012)