Peñaranda, Brennin Mark

2015-0413
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1. Illustrate each disputable presumption with jurisprudence.

Sec. 3 Rule 131 provides for disputable presumptions. Some of them are
illustrated below:

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

In People v Mingming (GR No. 174195, December 10, 2008), Mingming could
not be convicted for the third rape charged could not be proven. The
prosecution failed to establish that there was also penile penetration of the
accused’s male organ into the victim’s vagina during the third rape. The
prosecution’s case must rise and fall on its own merits and cannot draw its
strength from the weakness of the defense. Therefore, although Mingming
was convicted for the first and second rapes, he was acquitted from the third
rape.

(b) That evidence willfully suppressed would be adverse if produced;

An exception to this presumption is when the suppression is in the exercise of

a privilege. In the case of Blue Cross Health Care v Neomi (GR No. 169737,
February 12, 2008), petitioner never presented any evidence to prove that
respondent Neomi’s stroke was due to pre-existing condition. It merely
speculated that the doctor’s report would be adverse to Neomi, based on her
invocation of the doctor-patient privilege.

(c) 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 possess, or exercises acts of ownership over, are owned by
him;

The settled rule is that in the absence of a satisfactory explanation, one found
in possession of and who used a forged document is the forger and therefore
guilty of falsification. If a person had in his possession a falsified document
and he made use of it (uttered it), taking advantage of it and profiting thereby,
the clear presumption is that he is the material author of falsification.
(Feliciano Maliwat v Court of Appeals, GR No. 107041, May 15, 1996)

(d) That a person takes ordinary care of his concerns;

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In the case of Diaz v People (GR No. 208113, December 2, 2015), the case
law dictates that the natural presumption is that one does not sign a
document without first informing himself of its contents and consequences.

(e) That things have happened according to the ordinary course of nature and
ordinary nature habits of life;

In some cases where negligence is difficult to prove, the doctrine res ipsa
loquitur permits an inference of negligence on the part of the defendant where
the thing of transaction speaks for itself. In Josefa v Manila Electric Company,
GR No. 182705, July 18, 2014), It is very unusual and extraordinary for the
truck to hit an electricity post, an immovable and stationary object, unless
Bautista, who had the exclusive management and control of the truck, acted
with fault or negligence.

2. Illustration of each component of the hierarchy of evidentiary values with

jurisprudence.

a. Proof beyond reasonable doubt. In the hierarchy of evidentiary values,

proof beyond reasonable doubt is at the highest level, which applies in
criminal cases. Here, the burden of proof lies with the prosecution because of
the presumption that the accused is presumed innocent, until the contrary is
proven.
Jurisprudence reiterates the above rule by declaring that “in every criminal
prosecution, the State must prove beyond reasonable doubt, all the elements
of the crime charged and the complicity or the participation of the accused”
(People v Maraorao, GR No. 174369, June 20, 2012 and People v Roxas, GR
No. 218396, February 10, 2016).
Proof beyond reasonable doubt is the degree of proof that, after investigation
of the whole record, produces moral certainty in an unprejudiced mind of the
accused’s culpability (Atienza v People, GR No. 188694, February 12, 2014.
b. Preponderance of evidence. In civil cases, the party having the burden of
proof must establish his case by a preponderance of evidence. This is the
weight, credit, and value of the aggregate evidence on either side and is
usually considered synonymous with the term “greater weight of evidence” or
“greater weight of the credible evidence.” In the last analysis, preponderance
of evidence means the probability of truth. It is evidence more convincing to
the court as worthier of belief than that which is offered in opposition thereto

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(Standard Insurance Co., Inc. v Cuaresma, GR No. 200055, September 10,

2014).

Preponderance of evidence also means that the evidence adduced by one

side is, as a whole, superior to or has greater weight than that of the other. It
is evidence which is more convincing to the court as worthy of belief that that
which is offered in opposition thereto (BJDC Construction v Lanuzo, GR No.
161151, March 24, 2014).

c. Substantial Evidence. In cases filed before the 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 (Sec. 3, Rule 133,
Rules of Court). This was also articulated in the case of Montinola v Philippine
Airlines, GR No. 198656, September 8, 2014).

In administrative cases, the quantum of evidence required is that of

substantial evidence. It does not require evidence that is overwhelming or
even preponderant (Asian International Manpower Services, Inc. v
Department of Labor and Employment, GR No. 210308, April 6, 2016).

3. Illustrate each exception to hearsay rule with jurisprudence.

Sections 37 to 47 of Rule 130 of the Rules court of Court

Section 37. Dying declaration. — The declaration of a dying person,

made under the consciousness of an impending death, may be received in
any case wherein his death is the subject of inquiry, as evidence of the
cause and surrounding circumstances of such death.

People v Macaraig y Gonzales: G.R. No. 219848

“The Rules of Court states that a dying declaration is admissible as

evidence if the following circumstances are present: "(a) it concerns the
cause and the surrounding circumstances of the declarant's death; (b) it is
made when death appears to be imminent and the declarant is under a
consciousness of impending death; (c) the declarant would have been
competent to testify had he or she survived; and (d) the dying declaration

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is offered in a case in which the subject of inquiry involves the declarant's

death.”

Section 38. Declaration against interest. — The declaration made by a

person deceased, or unable to testify, against the interest of the declarant,
if the fact is asserted in the declaration was at the time it was made so far
contrary to declarant's own interest, that a reasonable man in his position
would not have made the declaration unless he believed it to be true, may
be received in evidence against himself or his successors in interest and
against third persons.

People v. Toledo

”As rule, the interest against which the declaration may have been made
should either a pecuniary or moral interest but, in our jurisdiction, the
declaration could probably be against one’s penal interest because if one
admits to a crime, he is also civilly liable that is pecuniary.”

Section 39. 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 by birth or marriage, may be received in
evidence where it occurred before the controversy, and the relationship
between the two 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 fast
occurred, and the names of the relatives. It embraces also facts of family
history intimately connected with pedigree. (33a)

Mendoza v CA and Tuñacao GR no. 86302

“Such acts or declarations may be received in evidence as an exception

to the hearsay rule because "it is the best the nature of the case admits
and because greater evils are apprehended from the rejection of such
proof than from its admission. Nevertheless, precisely because of its
nature as hearsay evidence, there are certain safeguards against its
abuse. Commenting on this provision, Francisco enumerates the following
requisites that have to be complied with before the act or declaration
regarding pedigree may be admitted in evidence:

1. The declarant is dead or unable to testify.

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2. The pedigree must be in issue.

3. The declarant must be a relative of the person whose pedigree is in

issue.

4. The declaration must be made before the controversy arose.

5. The relationship between the declarant and the person whose

pedigree is in question must be shown by evidence other than such
declaration.”

Section 40. 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 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.

Pe Lim v. CA,

“we stated that the issue of paternity still has to be resolved by such
conventional evidence as the relevant incriminating verbal and written
acts by the putative father. Under Article 278 of the New Civil Code,
voluntary recognition by a parent shall be made in the record of birth, a
will, a statement before a court of record, or in any authentic writing. To
be effective, the claim of filiation must be made by the putative father
himself and the writing must be the writing of the putative father. A
notarial agreement to support a child whose filiation is admitted by the
putative father was considered acceptable evidence. Letters to the
mother vowing to be a good father to the child and pictures of the putative
father cuddling the child on various occasions, together with the certificate
of live birth, proved filiation. However, a student permanent record, a
written consent to a father's operation, or a marriage contract where the
putative father gave consent, cannot be taken as authentic writing.
Standing alone, neither a certificate of baptism nor family pictures are
sufficient to establish filiation.”

Section 41. Common reputation. — Common reputation existing

previous to the controversy, respecting facts of public or general interest

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more than thirty years old, or respecting marriage or moral character, may
be given in evidence. Monuments and inscriptions in public places may be
received as evidence of common reputation.

Reg. v Bedforshire

“ Common reputation is hearsay, like any other exception to the hearsay

rule, but Is admissible because of trustworthiness.”

Section 42. Part of 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, may be given in
evidence as part of res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal significance, may
be received as part of the res gestae.

People v Calunsag GR no. 208749

“In essence, the res gestae exception to the hearsay rule provides that the
declarations must have been "voluntarily and spontaneously made so
nearly contemporaneous as to be in the presence of the transaction which
they illustrate and explain, and were made under such circumstances as
necessarily to exclude the idea of design or deliberation."

Section 43. Entries in the course of business. — Entries made at, or

near the time of transactions to which they refer, by a person deceased, or
unable to testify, who was in a position to know the facts therein stated,
may be received as prima facie evidence, if such person made the entries
in his professional capacity or in the performance of duty and in the
ordinary or regular course of business or duty.

Jose Jr. v Michaelmar Phils. Inc. Gr. No 169606

“Under legal rules of evidence, not all unsigned documents or papers fail
the test of admissibility. There are kinds of evidence known as exceptions
to the hearsay rule which need not be invariably signed by the author if it
is clear that it issues from him because of necessity and under
circumstances that safeguard the trustworthiness of the paper. A number
of evidence of this sort are called entries in the course of business, which
are transactions made by persons in the regular course of their duty or

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business. We agree with the labor arbiter that the drug test result
constitutes entries made in the ordinary or regular course of duty of a
responsible officer of the vessel. The tests administered to the crew were
routine measures of the vessel conducted to enforce its stated policy, and
it was a matter of course for medical reports to be issued and released by
the medical officer. The ship’s physician at Curacao under whom the tests
were conducted was admittedly Dr. Heath. It was under his name and with
his handwritten comments that the report on the respondent came out,
and there is no basis to suspect that these results were issued other than
in the ordinary course of his duty. As the labor arbiter points out, the drug
test report is evidence in itself and does not require additional supporting
evidence except if it appears that the drug test was conducted not in
accordance with drug testing procedures. Nothing of the sort, he says,
has even been suggested in this particular case.”
xxx
“In the present case, Jose, Jr. did not show that the Court of Appeals’
ruling is violative of any law or jurisprudence. Section 43, Rule 130, of the
Rules of Court states:

SEC. 43. Entries in the course of business. — Entries made at, or near
the time of the transactions to which they refer, by a person deceased, or
unable to testify, who was in a position to know the facts therein stated,
may be received as prima facie evidence, if such person made the entries
in his professional capacity or in the performance of duty and in the
ordinary or regular course of business or duty.
In Canque v. Court of Appeals, the Court laid down the requisites for
admission in evidence of entries in the course of business:
(1) the person who made the entry is dead, outside the country, or unable
to testify;
(2) the entries were made at or near the time of the transactions to which
they refer;
(3) the person who made the entry was in a position to know the facts
stated in the entries;
(4) the entries were made in a professional capacity or in the performance
of a duty; and
(5) the entries were made in the ordinary or regular course of business or
duty.
Here, all the requisites are present: (1) Dr. Heath is outside the country;
(2) the entries were made near the time the random drug test was
conducted; (3) Dr. Heath was in a position to know the facts made in the
entries; (4) Dr. Heath made the entries in his professional capacity and in

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the performance of his duty; and (5) the entries were made in the ordinary
or regular course of business or duty.”

Section 44. Entries in official records. — Entries in official records made

in the performance of his duty by a public officer of the Philippines, or by a
person in the performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated.

Dimaguila v Monteiro GR no. 201011

“As to the hearsay rule, Section 44 of Rule 130 of the Rules of Court
similarly provides that entries in official records are an exception to the
rule.25 The rule provides that entries in official records made in the
performance of the duty of 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. The necessity of this rule
consists in the inconvenience and difficulty of requiring the official's
attendance as a witness to testify to the innumerable transactions in the
course of his duty. The document's trustworthiness consists in the
presumption of regularity of performance of official duty.”

Section 45. 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.

PNOC Shipping and Transport Corporation v CA & MEF Corp. GR

no. 107518

“Under Section 45 of the aforesaid Rule, a document is a commercial list

if: (1) it is a statement of matters of interest to persons engaged in an
occupation; (2) such statement is contained in a list, register, periodical or
other published compilation; (3) said compilation is published for the use
of persons engaged in that occupation, and (4) it is generally used and
relied upon by persons in the same occupation.”

Section 46. 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

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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
profession or calling as expert in the subject.

“History books and published findings of scientists fall within the exception
that an expert on the subject testifies to the expertise of the writer or the
court takes judicial notice of such fact."

Section 47. Testimony or deposition at a former proceeding. — The

testimony or deposition of a witness deceased or 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

Boza v Cleary GR no. 197122

“The Rules of Court and jurisprudence, however, do not restrict a

deposition to the sole function of being a mode of discovery before trial.
Under certain conditions and for certain limited purposes, it may be taken
even after trial has commenced and may be used without the deponent
being actually called to the witness stand. In Dasmariñas Garments v.
Reyes, we allowed the taking of the witnesses’ testimonies through
deposition, in lieu of their actual presence at the trial.

Thus, "[d]epositions may be taken at any time after the institution of any
action, whenever necessary or convenient. There is no rule that limits
deposition-taking only to the period of pre-trial or before it; no prohibition
against the taking of depositions after pre-trial." There can be no valid
objection to allowing them during the process of executing final and
executory judgments, when the material issues of fact have become
numerous or complicated.

In keeping with the principle of promoting the just, speedy and

inexpensive disposition of every action and proceeding, depositions are
allowed as a "departure from the accepted and usual judicial proceedings
of examining witnesses in open court where their demeanor could be
observed by the trial judge." Depositions are allowed, provided they are
taken in accordance with the provisions of the Rules of Court (that is, with
leave of court if the summons have been served, without leave of court if

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an answer has been submitted); and provided, further, that a

circumstance for their admissibility exists.”

4. Questions and suggested answers of UPLAW Center to the 2016 Bar

Exams in Evidence.

(A) What is the “most important witness” rule pursuant to the 2004 Guidelines
of Pre-trial and Use of Deposition-Discovery Measures? Explain. (2.5%)
(B) What is the “one day examination of witness” rule pursuant to the said
2004 Guidelines? Explain. (2.5%)

SUGGESTED ANSWER

(A) Under A.M. No. 03-1-09-SC or the “2004 Guidelines of Pre-trial and Use
of Deposition-Discovery Measures,” in civil cases where no amicable
settlement was reached by the parties, the trial judge is directed to determine
the most important witnesses and limit the number of such witnesses to be
heard. The court shall also require the parties and/or counsels to submit the
names, addresses and contact numbers of the witnesses to be summoned by
subpoena. The facts to be proven by each witness and the approximate
number of hours per witness shall also be fixed by the trial judge (Section (1)
(A) (5) (i) of A.M. No. 03-01-09-SC or the “2004 Guidelines of Pre-trial and
Use of Deposition-Discovery Measures”, July 13, 2004).

(B) The rule requires that a witness has to be fully examined in one (1) day
only. This rule shall be strictly adhered to subject to the courts’ discretion
during trial on whether or not to extend the direct and/ or cross-examination
for justifiable reasons. On the last hearing day allotted for each party, he is
required to make his formal offer of evidence after the presentation of his last
witness and the opposing party is required to immediately interpose his
objection thereto. Thereafter, the judge shall make the ruling on the offer of
evidence in open court, but the judge has the discretion to allow the offer of
evidence in writing in conformity with Section 35, Rule 132 (Section (1)(A)(5)
(i) of A.M. No. 03-01-09-SC or the “2004 Guidelines of Pre-trial and Use of
Deposition-Discovery Measures”, July 13, 2004). 

XIV
Pedro, the principal witness in a criminal case, testified and completed his
testimony on direct examination in 2015. Due to several postponements by
the accused, grounded on his recurring illness, which were all granted by the

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judge, the cross-examination of Pedro was finally set on October 15, 2016.
Before the said date, Pedro died. The accused moved to expunge Pedro’s
testimony on the ground that it violates his right of confrontation and the right
to cross-examine the witness. The prosecution opposed the motion and
asked Pedro’s testimony on direct examination be admitted as evidence. Is
the motion meritorious? Explain. (5%)

SUGGESTED ANSWER

The Motion is meritorious. The cross-examination of a witness is an absolute

right, not a mere privilege, of the party against whom he is called. With regard
to the accused, it is a right guaranteed by the fundamental law as part of due
process. Article III, Sec. 14, par. (2), of the 1987 Constitution specifically
mandates that “the accused shall enjoy the right to meet the witnesses face to
face,” and Rule 115, Sec. 1, par. (f), of the 2000 Rules of Criminal Procedure
enjoins that in all criminal prosecutions the accused shall be entitled to
confront and cross-examine the witnesses against him at the trial.
Accordingly, the testimony of a witness given on direct examination should be
stricken off the record where there was no adequate opportunity for cross-
examination (People v. Fernando Monjey Rosario, G.R. No. 146689,
September 27, 2002).

In People v. Manchetti (G.R. No. L-48883, August 6, 1980), the Supreme

Court also held that if a party is deprived of the opportunity of cross
examination without fault on his part, as in the case of the illness and death of
a witness after direct examination, he is entitled to have the direct testimony
stricken from the records. Since the accused was deprived of an opportunity
to cross examine the witness without fault on his part, the motion to expunge
is meritorious.

ANOTHER SUGGESTED ANSWER

The Motion is not meritorious. The right of a party to confront and cross-
examine opposing witnesses in a judicial litigation is a personal one which
may be waived, expressly or impliedly, by conduct amounting to a
renunciation of the right of cross-examination. Where a party has had the
opportunity to cross-examine a witness but failed to avail himself of it, he
necessarily forfeits the right to cross-examine and the testimony given on
direct examination of the witness will be received or allowed to remain in the
record. The conduct of a party which may be construed as an implied waiver
of the right to cross-examine may take various forms. The common basic

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principle underlying the application of the rule on implied waiver is that the
party was given the opportunity to confront and cross-examine an opposing
witness but failed to take advantage of it for reasons attributable to himself
alone (People of the Philippines v. Adones Abatayao, G.R. No. 139456, July
7, 2004). Under the Doctrine of incomplete testimony, the direct testimony of
a witness who dies before conclusion of the cross-examination can be
stricken only insofar as not covered by the cross-examination (Curtice v.
West, 2 NYS 507,50 Hun 47, affirmed 24 N.E. 1099, 121 N.Y. 696), and that
a referee has no power to strike the examination of a witness on his failure to
appear for cross-examination where a good excuse is given (People v. Hon.
Alberto V. Seneris, G.R. No. L-48883 August 6, 1980). At any rate, the
accused may be deemed to have waived his right to confront and cross-
examine the witness when he asked the postponements of the hearing for
several times; therefore, the direct testimony of a witness who died before the
conclusion of the cross-examination should not be expunged from the
records.

XVIII
John filed a petition for declaration of nullity of his marriage to Anne on the
ground of psychological incapacity under Article 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? Explain. (5%)
SUGGESTED ANSWER
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 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 (Rule 130, Sec. 24 (a), Rules
of Court). In this case, 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.
ALTERNATIVE ANSWER

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No. John cannot testify. A person authorized to practice medicine, surgery or

obstetrics cannot in a civil case, without the consent of the patient, be
examined as to any advice or treatment given by him or any information
which he may have acquired in attending such patient in a professional
capacity, which information was necessary to enable him to act in that
capacity, and which would blacken the reputation of the patient (Section 24
(c), Rule 130, Rules on Evidence). Relative thereto, the Rule pertains only to
the Physician authorized to practice medicine, surgery or obstetrics in a civil
case who will testify without the consent of the patient. The husband can
testify, therefore, on the copy of the psychiatric evaluation report on his wife
that he obtained from the secretary of the psychiatrist. After all, the husband
can testify because the marital disqualification rule does not apply in a civil
case filed by one against the other (Section 22, Rule 130, Rules on
Evidence).

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