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Evidence e Book
Evidence e Book
A: Evidence is the means, sanctioned by the Rules Q: Distinguish Evidence in Civil Cases from
of Court, of ascertaining in a judicial proceeding the Evidence in Criminal Cases.
truth respecting a matter of fact. (Sec. 1, Rule 128)
A:
Q: What are the four component elements? Civil Cases Criminal Cases
The party having the
A: The guilt of the accused
burden of proof must
1. Means of ascertainment – includes not has to be proven
prove his claim by a
only the procedure or manner of beyond reasonable
preponderance of
ascertainment but also the evidentiary doubt
evidence
fact from which the truth respecting a An offer of compromise An offer of compromise
matter of fact may be ascertained is not an admission of by the accused may be
2. Sanctioned by the rules – not excluded by any liability, and is not received in evidence as
the Rules of Court admissible in evidence an implied admission of
3. In a judicial proceeding – contemplates an against the offeror guilt
action or proceeding filed in a court of law The concept of The accused enjoys the
4. The truth respecting a matter of fact – presumption of constitutional
refers to an issue of fact and is both innocence does not presumption of
substantive (determines the facts needed apply innocence
to be established) and procedural
(governs the manner of proving said 4. PROOF VERSUS EVIDENCE
facts).
Q: Distinguish proof from evidence.
Q: Why is evidence required?
A:
A: It is required because of the presumption that Proof Evidence
the court is not aware of the veracity of the facts The effect when the
The mode and manner
involved in a case. It is therefore incumbent upon requisite quantum of
of proving competent
the parties to prove a fact in issue thru the evidence of a particular
facts in judicial
fact has been duly
presentation of admissible evidence (Riano, proceedings
admitted and given weight
Evidence: A Restatement for the Bar, p. 2, 2009 ed.).
The probative effect of
The means of proof
evidence
2. SCOPE OF THE RULES OF EVIDENCE
Q: What is the scope of the Rules of Evidence? 5. FACTUM PROBANS VERSUS FACTUM
PROBANDUM
A: The rules of evidence shall be the same in all
courts and in all trials and hearings, except as Q: Distinguish factum probandum from factum
otherwise provided by law or by these rules. It is probans.
guided by the principle of uniformity. (Sec. 2, Rule
A:
128).
Factum Probandum Factum Probans
NOTE: It does not apply to election cases, land
registration, cadastral, naturalization and insolvency The ultimate fact sought
The intermediate facts
proceedings, and other cases, except by analogy or in to be established
suppletory character and whenever practicable and Proposition to be Materials which establish
convenient. (Sec. 4, Rule 1, Rules of Court) established the proposition
Hypothetical Existent
Q: Are there vested rights under the Rules of
Evidence? Note: Every evidentiary question involves the
relationship between the factum probandum and
factum probans.
Q: What are the requisites for admissibility of Note: While the evidence may not bear directly on the
evidence? issue, it will be admitted if it has the tendency to
corroborate or supplement facts established
A: previously by direct evidence, or to induce belief as to
1. Relevancy – such a relation to the fact in the probability or improbability of a fact in issue.
issue as to induce belief in its existence or
non-existence. c. MULTIPLE ADMISSIBILITY
2. Competency – if not excluded by law or by d. CONDITIONAL ADMISSIBILITY
the rules. e. CURATIVE ADMISSIBILITY
295
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: What are the three theories on curative 3. The combination of all the circumstances
admissibility? is such as to produce a conviction beyond
reasonable doubt (Sec. 4, Rule 133;
A: People vs Sevilleno, G.R. No. 152954,
1. American Rule – the admission of such March 11, 2004).
incompetent evidence, without objection
by the opoonent does not justify such Q: Is direct proof of previous agreement to commit
opponent in rebutting it by similar a crime necessary to prove conspiracy?
incompetent evidence
A: No. Considering the difficulty in establishing the
2. English Rule – if a party has presented existence of conspiracy, settled jurisprudence finds
inadmissible evidence, the adverse party no need to prove it by direct evidence (Fernan, Jr.
may resort to similar inadmissible and Torrevillas v. People, G.R. No. 145927, Aug. 24,
evidence 2007). It may be deduced from the acts of the
perpetrators before, during and after the
3. Massachusetts Rule – the adverse pary commission of the crime which are indicative of a
may be permitted to introduce similar common design, concerted action and concurrence
incompetent evidence In order to avoid a of sentiments (Serrano v. CA, G.R. No. 123896, June
plain and unfair prejudice cause by the 25, 2003).
admission of the other party’s evidence.
g. POSITIVE AND NEGATIVE EVIDENCE
Q: What should determine the application of the
rule of curative admissibility? Q: What is positive and negative evidence?
A: A:
1. Whether the incompetent evidence was 1. Positive – when the witness affirms that a
seasonably objected to; and fact did or did not occur, it is entitled to
2. Whether, regardless of the objection, the greater weight since the witness
admission of such evidence shall cause a represents of his personal knowledge the
plain and unfair prejudice to the party presence or absence of a fact.
against whom it is admitted.
2. Negative – when the witness states that
f. DIRECT AND CIRCUMSTANTIAL EVIDENCE he did not see or know of the occurrence
of a fact and there is total disclaimer of
Q: Distinguish direct evidence from circumstantial personal knowledge. Such is admissible
evidence. only if has to contradict positive acts of
the other side or would tend to exclude
A: the existence of fact sworn to by the
DIRECT EVIDENCE CIRCUMSTANTIAL EVIDENCE other side.
Establishes the Does not prove the existence
existence of a fact in of a fact in issue directly, but Note: A denial is a negative evidence. It is considered
issue without the merely provides for logical by jurisprudence to be a very weak form of defense
aid of any inference inference that such fact really and can never overcome an affirmative or positive
or presumption exists testimony particularly when it comes from the mouth
Each proof is given of facts and of a credible witness. (People vs Mendoza, 450 SCRA
The witness testifies circumstances from which the 328, January 21, 2005).
directly of his own court may infer other
knowledge as to the connected facts which h. COMPETENT AND CREDIBLE EVIDENCE
main facts to be reasonably follow, according
proved to the common experience of Q: Distinguish competent evidence from credible
mankind evidence.
7. BURDEN OF PROOF AND BURDEN OF EVIDENCE being, from introducing to the other party. It
evidence in support of relieves those favored
Q: What is burden of proof? his averment because thereby of the burden of
the presumption stands proving the fact presumed.
A: It is the duty of a party to present evidence to in the place of evidence.
establish his claim or defense by the amount of (Francisco, p. 356, 1992
evidence required by law (Sec. 1, Rule 131). It is also ed.)
called onus probandi.
Note: The burden of proof is on the party who asserts
the affirmative of the issue at the beginning of the
Q: What are the two concepts of burden of proof?
case and continues on him throughout the case. Ei
incumbit probatio qui dicit, no qui negat - he who
A:
asserts, not he who denies, must prove (Homeowners
1. Burden of going forward – Party’s obligation of Savings & Loan Bank v. Dailo, G.R. No. 153802, Mar.
producing evidence. 11, 2005).
2. Burden of persuasion – The burden of Where insanity is alleged, the burden of proof rests
persuading the trier of fact that the burdened upon him who alleges insanity to establish that fact
party is entitled to prevail. but where insanity is once proved to exist, the burden
of evidence is shifted to him who asserts that the act
Q: Distinguish burden of proof from burden of was done while the person was sane (Engle v. Doe,
evidence. (2004 Bar Question) G.R. No. L-23317, Aug. 7, 1925).
297
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
299
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
14. A court or judge acting as such, whether in the a. Person on board a vessel lost during a sea
Philippines or elsewhere, was acting in the voyage, or an aircraft which is missing,
lawful exercise of jurisdiction. who has not been heard of for 4 years
Note: Lawful exercise of jurisdiction is presumed since the loss of the vessel or aircraft;
in all cases, be it superior or inferior courts, b. Member of the armed forces who has
whether in the Philippines or elsewhere, unless taken part in armed hostilities, and has
the record itself shows that jurisdiction has not been missing for 4 years;
been acquired or the record itself shows the c. Person who has been in danger of death
absence of jurisdiction, in which case jurisdiction under other circumstances and whose
to render a judgment may not be presumed. existence has not been known for 4 years;
d. If a married person has been absent for 4
15. All the matters within an issue raised in a case consecutive years, the spouse present
were laid before the court and passed upon by may contract a subsequent marriage if he
it; all matters within an issue raised in a or she has well-founded belief that the
dispute submitted for arbitration were laid absent spouse is already dead; 2 years in
before arbitrators and passed upon by them. case of disappearance where there is
danger of death under the circumstances
16. Private transactions have been fair and hereinabove provided. Before marrying
regular. again, the spouse present must institute a
Note: Presumption that all men act fairly,
summary proceeding as provided in the
honestly and in good faith, and that an individual
Family Code and in the rules for
intends to do right rather than wrong and intends
to do only what he has the right to do.
declaration of presumptive death of the
absentee, without prejudice to the effect
17. Ordinary course of business has been followed. of re-appearance of the absent spouse.
Note: Persons engaged in a given trade or
business are presumed to be acquainted with the 24. Acquiescence resulted from a belief that the
general customs, usages and other facts thing acquiesced in was conformable to the
necessarily incident to the proper conduct of the law or fact.
business.
25. Things have happened according to the
18. There was a sufficient consideration for a ordinary course of nature and ordinary habits
contract. of life.
19. Negotiable instrument was given or indorsed 26. Persons acting as co-partners have entered
for a sufficient consideration. into a contract of co-partnership.
20. An endorsement of negotiable instrument was 27. A man and woman deporting themselves as
made before the instrument was overdue and husband and wife have entered into a lawful
at the place where the instrument is dated. contract of marriage.
21. A writing is truly dated. 28. Property acquired by a man and a woman who
are capacitated to marry each other and who
22. Letter duly directed and mailed was received in live exclusively with each other as husband
the regular course of the mail. and wife without the benefit of marriage or
Note: For this presumption to arise, it must be under void marriage, has been obtained by
proved that the letter was properly addressed their joint efforts, work or industry.
with postage pre-paid and that it was actually
mailed. 29. In cases of cohabitation by a man and a
woman who are not capacitated to marry each
23. Absentee of 7 years, it being not known other and who have acquired properly through
whether or not he is still alive, is considered their actual joint contribution of money,
dead for all purposes except for succession. property or industry, such contributions and
For the purpose of opening his succession, an
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
no presumption
no presumption of
legitimacy or illigitimacy
conceived during the
subsequent marriage
conceived during the
former marriage
termination of subsequent marriage 180 days after the 300 days after termination of 1st
1st marriage subsequent marriage marriage
31. A thing once proved to exist continues as long such person or his successor in interest.
as is usual with things of that nature. 36. Except for purposes of succession, when 2
persons perish in the same calamity, and it is
32. The law has been obeyed. not shown who died first, and there are no
particular circumstances from which it can be
33. A printed or published book, purporting to be inferred, the survivorship is determined from
printed or published by public authority, was so the probabilities resulting from the strength
printed or published. and age of the sexes, according to the
following rules:
34. A printed or published book, purporting to
contain reports of cases adjudged in tribunals Presumed To
First Person Second Person
of the country where the book is published, Have Survived
contains correct reports of such cases.
< 15 yrs old < 15 yrs old older
35. A trustee or other person whose duty it was to
convey real property to a particular person has > 60 yrs old > 60 yrs old younger
actually conveyed it to him when such
< 15 > 60 yrs old < 15
presumption is necessary to perfect the title of
303
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
3. Line-ups: where a witness identifies the matters is not the number of witnesses but the
suspect from a group of persons lined up for credibility and the nature and quality of their
the purpose. (People v. Claudio Teehankee, testimonies. The testimony of a lone witness is
Jr., G.R. Nos. 111206-08, Oct. 6, 1995) sufficient to support a conviction if found positive
and credible (Ceniza-Manantan v. People, G.R. No.
Q: What is the relevance of an eyewitness 156248, Aug. 28, 2007).
identification?
Q: Define res ipsa loquitur.
A: It is often decisive of the conviction or acquittal
of an accused. Identification of an accused through A: It literally means the thing speaks for itself. This
mug shots is one of the established procedures in doctrine provides that the fact of the occurrence of
pinning down criminals. However, to avoid charges an injury, taken with the surrounding
of impermissible suggestion, there should be circumstances, may permit an inference or raise a
nothing in the photograph that would focus presumption of negligence, or make out a plaintiff's
attention on a single person (People v. Villena, G.R. prima facie case, and present a question of fact for
No. 140066, Oct. 14, 2002). defendant to meet with an explanation. Where the
thing which caused the injury complained of is
Q: Is a police line-up mandatory to prove the shown to be under the management of the
identity of an offender? defendant or his servants and the accident is such
as in ordinary course of things does not happen if
A: A police line-up is merely a part of the those who have its management or control use
investigation process by police investigators to proper care, it affords reasonable evidence, in the
ascertain the identity of offenders or confirm their absence of explanation by the defendant, that the
identification by a witness to the crime. Police accident arose from or was caused by the
officers are not obliged to assemble a police line-up defendant's want of care (Ramos v. CA, G.R. No.
as a condition sine qua non to prove the identity of 124354, Dec. 29, 1999).
an offender. If on the basis of the evidence on
hand, police officers are certain of the identity of Q: What are the requisites in applying the doctrine
the offender, they need not require any police line- of res ipsa loquitur?
up anymore (Tapdasan, Jr. v. People, G.R. No.
141344, Nov. 21, 2002). A:
1. The occurrence of an injury;
Q: When is “out-of-court identification” admissible 2. The thing which caused the injury was under
and reliable? the control and management of the
defendant;
A: It is admissible and reliable when it satisfies the 3. The occurrence was such that in the
“totality of circumstances” test. Under the “totality ordinary course of things, would not have
of circumstances” test, the following factors are happened if those who had control or
considered: management used proper care; and
1. Witness’ opportunity to view the criminal 4. The absence of explanation by the
at the time of the crime; defendant (Professional Services, Inc. v.
2. Witness’ degree of attention at that time; Agana, G.R. No. 126297, Jan. 31, 2007).
3. Accuracy of any prior description given by
the witness; Q: Does the application of the doctrine dispense
4. Level of certainty demonstrated by the with the requirement of proof of negligence?
witness at the identification;
5. Length of time between the crime and the A: No. It is considered merely as evidentiary or in
identification; and the nature of procedural rule. It is simply in the
6. Suggestiveness of the identification process of such proof, permitting the plaintiff to
procedure. (People v. Claudio Teehankee, present enough of the attending circumstances to
Jr., G.R. Nos. 111206-08, Oct. 6, 1995) invoke the doctrine, creating an inference or
presumption of negligence and thereby place on
Q: Is the testimony of only one witness sufficient the defendant the burden of going forward with the
to convict the accused? proof to the contrary. (Ramos, et. al. v. CA, G.R. No.
124354, Dec. 29, 1999)
A: Yes. Truth is established not by the number of
witnesses but by the quality of their testimonies. In
determining the sufficiency of evidence, what
305
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
corresponding license therefor. (People v. 6. Their personal credibility so far as the same
Solayao, G.R. No. 119220, Sept. 20, 1996) may legitimately appear upon the trial; or
7. The number of witnesses, though the
a. PROOF BEYOND REASONABLE DOUBT preponderance is not necessarily with the
greater number (Sec. 1, Rule 133).
Q: What is meant by reasonable doubt?
c. SUBSTANTIAL EVIDENCE
A: It is that state of the case which, after the entire
comparison and consideration of all the evidence Q: What is substantial evidence?
leaves the mind of the judge in that condition that
he cannot say that he feels an abiding conviction to A: It is that amount of relevant evidence which a
a moral certainty of the truth of the charge. (People reasonable mind might accept as adequate to
v. Calma, G.R. No. 127126, Sept. 17, 1998) justify a conclusion. (Sec. 5)
Q: What does proof beyond reasonable doubt Q: When is substantial evidence sufficient to
require? establish a fact?
A: It only requires moral certainty or that degree of A: In cases filed before administrative or quasi-
proof which produces conviction in an unprejudiced judicial bodies, a fact may be deemed established if
mind. It does not mean such degree of proof as it is supported by substantial evidence.
excluding the possibility of error, produce absolute
certainty. (Basilio v. People, G.R. No. 180597, Nov. d. CLEAR AND CONVINCING EVIDENCE
7, 2008)
Q: What are the instances when clear and
Q: Must the identity of the accused be proved convincing evidence is required as quantum of
beyond reasonable doubt? proof?
307
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
8. When proving physical impossibility for the personal knowledge of the court; rather, it is the
accused to be at the crime scene when cognizance of “common knowledge.” Judicial notice
using alibi as a defense (People v. Cacayan, relieves the parties from the necessity of introducing
G.R. No.180499, July 9, 2008); evidence to prove the fact notified. It makes evidence
9. When using denial as a defense like in unnecessary.
prosecution for violation of the Dangerous
Drugs Act (People v. Mustapa, G.R. No. Q: What are the requisites of judicial notice?
141244, Feb. 19, 2001);
10. To overcome the presumption of due A:
execution of notarized instruments (Viaje v. 1. The matter must be one of common and
Pamintel, G.R. No. 147792, Jan. 23, 2006); general knowledge;
11. When proving bad faith to warrant an 2. It must be well and authoritatively settled
award of moral damages (Resolution of the and not doubtful or uncertain; and
SC in Cual v. Leonis Navigation, G.R. No. 3. It must be one which is not subject to a
167775, Oct. 10, 2005); reasonable dispute in that it is either:
12. When proving that the police officers did a. Generally known within the territorial
not properly perform their duty or that they jurisdiction of the trial court; or
were inspired by an improper motive b. Capable of accurate and ready
(People v. Concepcion, G.R. No. 178876, determination by resorting to sources
June 27, 2008); or whose accuracy cannot reasonably be
13. When a person seeks confirmation of an questionable (Expertravel & Tours, Inc.
imperfect or incomplete title to a piece of v. CA, G.R. No. 152392, May 26, 2005).
land on the basis of possession by himself Note: The principal guide in determining what facts
and his predecessors-in-interest, he must may be assumed to be judicially known is that of
notoriety (Ibid.). The test of notoriety is whether the
prove with clear and convincing evidence
fact involved is so notoriously known as to make it
compliance with the requirements of the
proper to assume its existence without proof.
applicable law. (Republic v. Imperial Credit
Corp., G.R. No. 173088, June 25, 2008) (List
Q: When is a matter considered “common
of cases: Riano, Evidence: A Restatement for
knowledge”?
the Bar, pp. 422-426, 2009 ed.)
A: They are those matters coming to the knowledge
B. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
of men generally in the course of ordinary
1. WHAT NEED NOT BE PROVED
experiences of life, or they may be matters which
are generally accepted by mankind as true and are
Q: What are the facts that need not be proved?
capable of ready and unquestioned demonstration.
A: Note: Thus, facts which are universally known, and
1. Those which the courts may take judicial which may be found in encyclopedias, dictionaries or
notice (Rule 129); other publications, are judicially noticed, provided,
2. Those that are judicially admitted (Rule they are of such universal notoriety and so generally
129); understood that they may be regarded as forming part
3. Those that are conclusively presumed (Rule of the common knowledge of every person. A court
131); and however cannot take judicial notice of any fact which,
4. Those that are disputably presumed but in part, is dependent on the existence or non-existence
uncontradicted (Rule 131). of a fact of which the court has no constructive
knowledge (Expertravel & Tours, Inc. v. CA, G.R. No.
2. MATTERS OF JUDICIAL NOTICE 152392, May 26, 2005).
to take judicial notice of matter and allow the 3. It can be verbal or written admission. There
any matter and allow parties to be heard is no particular form required.
the parties to be heard thereon if such matter is
thereon (Sec. 3). decisive of a material issue Q: Distinguish judicial admission from extrajudicial
in the case. admission.
309
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: What are the rules on admissions made in A: Yes. Admissions made in the pre-trial are
pleadings? deemed judicial admissions because they are made
in the course of the proceedings of the case. (Riano,
A: Evidence: A Restatement for the Bar, p. 104, 2009
GR: The facts alleged in a party’s pleadings are ed.)
deemed admissions and are binding upon that
party. a. EFFECT OF JUDICIAL ADMISSIONS
XPN: Hypothetical admissions made by party Q: What are the consequences of judicial
litigant, as when a defendant moves to dismiss admissions?
the case based on lack of jurisdiction or sets up
affirmative defenses. A:
1. A party who judicially admits a fact cannot
Note: Admissions in a pleading which had been later challenge that fact as judicial
withdrawn or superseded by an amended pleading, admissions constitute waiver of proof;
although filed in the same case, are considered as production of evidence is dispensed with;
extrajudicial admissions. The original must be proved 2. No evidence is needed to prove a judicial
by the party who relies thereon by formally offering it admission and it cannot be contradicted
in evidence (Torres v. CA, G.R. Nos. L-37420-21, July 31, unless it is shown to have been made
1984). through palpable mistake or that no such
admission was made.
Note: Justice Regalado opines that as amended, it
would appear that Sec. 4, Rule 129 includes
b. HOW JUDICIAL ADMISSIONS MAY BE
superseded pleadings as judicial admissions (Regalado,
Vol. II, p. 837, 2005 ed.).
CONTRADICTED
Q: What are the rules on admissions made in Q: How can judicial admission be contradicted?
pleadings which were not filed with the court?
A: It may be contradicted by showing:
A: 1. That it was made through palpable mistake;
1. If signed by the party litigant himself – 2. That no such admission was made (Sec. 4);
considered as extrajudicial admission. or
2. If signed by the counsel – not admissible 3. To prevent manifest injustice (e.g. pre-trial
because a counsel only binds his client with in civil cases, Sec. 7, Rule 18).
respect to admissions in open court and in
pleadings actually filed with the court. 4. JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF
NATIONS AND MUNICIPAL ORDINANCE
Q: What is self-serving evidence?
Q: May courts take judicial notice of foreign laws?
A: No. The self-serving rule which prohibits the
admission of declaration of a witness applies only A:
to extrajudicial admissions. If the declaration is GR: Foreign laws may not be taken judicial
made in open court, such is raw evidence. It is not notice of, and have to be proved like any other
self-serving. It is admissible because the witness fact.
may be cross-examined on that matter. XPN: When said laws are within the actual
knowledge of the court and such laws are:
Q: Are judicial admissions made by the accused 1. Well and generally known;
during his arraignment binding upon him? 2. Actually ruled upon in other cases before
it; and
A: No. A plea of guilty entered by the accused may 3. None of the parties claim otherwise.
be later withdrawn at any time before the
judgment of conviction becomes final. Such plea is Q: Suppose a foreign law was pleaded as part of
not admissible in evidence against the accused and the defense of the defendant but no evidence was
is not even considered as an extrajudicial presented to prove the existence of said law, what
admission. is the presumption to be taken by the court as to
the wordings of said law?
Q: Are admissions made during a pre-trial in a civil
case considered as judicial admissions? A: The doctrine of processual presumption applies.
The presumption is that the wordings of the foreign
law are the same as the local law (doctrine of 3. When the action is closely interrelated to
processual presumption) (Northwest Orient Airlines another case pending between the same
v. CA, G.R. No. 83033, June 8, 1990; Moran, Vol. 6, parties;
p. 34, 1980 ed.). (1997 Bar Question) 4. Where the interest of the public in
ascertaining the truth are of paramount
Q: What are the rules with regard to judicial notice importance;
of ordinances? 5. In cases seeking to determine what is
reasonable exercise of discretion or
A: whether or not the previous ruling is
1. MTCs are required to take judicial notice of applicable in a case under consideration; or
the ordinances of the municipality or city 6. Where there is finality of a judgment in
wherein they sit. another case that was previously pending
determination and therefore, res judicata.
2. RTCs must take judicial notice only: (Herrera, Vol. V, pp. 89-90, 1999 ed.)
a. When expressly authorized to do so by
statute; or Q: Anna and Badong were accused of killing Cathy.
b. In case on appeal before them and However, only Anna was arrested since Badong
wherein the inferior court took judicial went in to hiding. After trial, Anna was acquitted
notice of an ordinance involved in the of the charge in a decision rendered by Judge
same case. Santos. Subsequently, Badong was arrested and
brought to trial. After trial, Badong was found
3. Appellate courts may also take judicial guilty of homicide in a decision rendered by Judge
notice of ordinances not only because the Yantok, the judge who replaced Judge Santos after
lower courts took judicial notice thereof but the latter retired. On appeal, Badong argues that
because these are facts capable of Judge Yantok should have taken judicial notice of
unquestionable demonstration. (Riano, the acquittal of Anna rendered by Judge Santos. Is
Evidence: A Restatement for the Bar, pp. 90- Badong correct?
91, 2009 ed.)
A: No. The appreciation of one judge of the
Q: What is the rule on judicial notice of records of testimony of a certain witness is not binding on
another case previously tried? another judge who heard the testimony of the
same witness on the same matter. Each magistrate
A: who hears the testimony of a witness is called upon
GR: Courts are not authorized to take judicial to make his own appreciation of the evidence. It is,
notice of the contents of the records of other therefore, illogical to argue that because one judge
cases, even when such cases have been tried or made a conclusion in a certain way with respect to
are pending in the same court, and one or more of the accused; it necessarily dictates
notwithstanding the fact that both cases may that the succeeding judge who heard the same case
have been heard or are actually pending before against the other accused should automatically
the same judge. (Calamba Steel Center, Inc. v. make the same conclusion (People v. Langit, G.R.
CIR, G.R. No. 151857, Apr. 28, 2005) Nos. 134757-58, Aug. 4, 2000).
311
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
the visual, auditory, tactile, gustatory, and object in question as to render a view
olfactory. It is considered as evidence of the highest thereof unnecessary. (Regalado, Vol. II, p.
order. 716, 2008 ed.)
Q: What are the purposes of authentication of Q: Is exhibition of the object which is repulsive or
object evidence? indecent absolutely prohibited?
Q: What are the requisites for the object evidence Q: In a criminal case for murder, the prosecution
to be admissible? offered as evidence photographs showing the
accused mauling the victim with several of the
A: It must latter’s companions. The person who took the
1. Be relevant to the fact in issue; photograph was not presented as a witness. Be
2. Be authenticated before it is admitted; that as it may, the prosecution presented the
3. Not be hearsay; companions of the victim who testified that they
4. Not be privileged; and were the ones in the photographs. The defense
5. Meet any additional requirement set by objected to the admissibility of the photographs
law. because the person who took the photographs
was not presented as witness. Is the contention of
Q: What does object evidence include? the defense tenable?
arrested yielded a negative result. Hence, he could Note: It is a discretionary act of the trial court to go to
not have shot Carlo. Is Ron correct? the place where the object is located, when the object
evidence cannot be brought in courts.
A: No. While the paraffin test was negative, such
fact alone did not ipso facto prove that Ron is 6. CHAIN OF CUSTODY IN RELATION TO SECTION
innocent. A negative paraffin result is not 21 OF THE COMPREHENSIVE DANGEROUS DRUGS
conclusive proof that a person has not fired a gun. ACT OF 2002
It is possible to fire a gun and yet be negative for
nitrates, as when the culprit is wearing gloves or he Q: What is Chain of Custody Rule in relation to Sec.
washes his hands afterwards. Here, since Ron 21 of the Comprehensive Dangerous Drugs Act of
submitted himself for paraffin testing only two days 2002?
after the shooting, it was likely he had already
washed his hands thoroughly, thus removing all A: It is a method of authenticating evidence. It
traces of nitrates therefrom (People v. Brecinio, G.R. requires that the admission of an exhibit be
No. 138534, Mar. 17, 2004). preceded by evidence sufficient to support a finding
that the matter in question is what the proponent
3. CATEGORIES OF OBJECT EVIDENCE claims it to be. It would include testimony about
every link in the chain, from the moment the item
Q: What are the categories of object evidence for was picked up to the time it is offered into
purposes of authentication? evidence, in such a way that every person who
touched the exhibit would describe how and from
A: whom it was received, where it was and what
1. Unique objects – those that have readily happened to it while in the witness’ possession, the
identifiable marks (e.g. a calibre 40 gun with condition in which it was received and the condition
serial number XXX888) in which it was delivered to the next link in the
2. Objects made unique – those that are chain.
readily identifiable (e.g. a bolo knife used to These witnesses would then describe the
hack a victim which could be identified by a precautions taken to ensure that there had been no
witness in court) change in the condition of the item and no
3. Non-unique objects – those which have no opportunity for someone not in the chain to have
identifying marks and cannot be marked possession of the same. (Lopez v. People, G.R. No.
(e.g. footprints left at a crime scene) 172953, Apr. 30, 2008)
313
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
in all criminal and civil actions as well as special A: In pending actions, the appropriate court may, at
proceedings (Sec. 1). any time issue a DNA testing order either motu
proprio or upon application of any person who has
a. MEANING OF DNA a legal interest in the matter in litigation after due
hearing and notice to the parties and upon showing
Q: What is DNA? of the following:
1. A biological sample exists that is relevant to
A: DNA (deoxyribonucleic acid) is the chain of the case;
molecules found in every nucleated cell of the body 2. The biological sample:
(Sec. 3, Rule on DNA Evidence). It is the 3. was not previously subjected to the type of
fundamental building block of a person’s entire DNA testing now requested; or
genetic make-up, which is found in all human cells 4. was previously subjected to DNA testing,
and is the same in every cell of the same person but the results may require confirmation for
(People v. Umanito, G.R. No. 172607, Oct. 26, good reasons;
2007). 5. The DNA testing uses a scientifically valid
technique;
Q: What is DNA evidence? 6. The DNA testing has the scientific potential
to produce new information that is relevant
A: It constitutes the totality of the DNA profiles, to the proper resolution of the case; and
results and other genetic information directly 7. The existence of other factors, if any, which
generated from DNA testing of biological samples the court may consider as potentially
(Sec. 3). affecting the accuracy or integrity of the
DNA testing (Sec. 4).
Q: What is DNA testing?
Q: Is the order granting the DNA testing
A: It means verified and credible scientific methods appealable?
which include the extraction of DNA from biological
samples, the generation of DNA profiles and the A: No. An order granting the DNA testing shall be
comparison of the information obtained from the immediately executory and shall not be appealable.
DNA testing of biological samples for the purpose of Any petition for certiorari initiated therefrom shall
determining, with reasonable certainty, whether or not, in any way, stay the implementation thereof,
not the DNA obtained from two or more distinct unless a higher court issues an injunctive order (Sec.
biological samples originates from the same person 5).
(direct identification) or if the biological samples
originate from related persons (Kinship Analysis) Q: During Alexis’ trial for rape with murder, the
(Sec. 3). prosecution sought to introduce DNA evidence
against him, based on forensic laboratory
Note: The scientific basis of this test comes from the matching of the materials found at the crime scene
fact that our differences as individuals are due to the and Alexis’ hair and blood samples. Alexis’ counsel
differences in the composition of our genes. These objected, claiming that DNA evidence is
genes comprise a chemical substance, the inadmissible because the materials taken from
deoxyribonucleic acid or DNA [The Court Systems Alexis were in violation of his constitutional right
Journal (1999)]. against self-incrimination as well as his right of
privacy and personal integrity. Should the DNA
b. APPLICATION FOR DNA TESTING ORDER evidence be admitted or not? Reason.
Q: May DNA testing be conducted absent a prior A: The DNA evidence should be admitted. It is not
court order? in violation of the constitutional right against self-
incrimination or his right of privacy and personal
A: Yes. The Rules on DNA Evidence does not integrity. The right against self-incrimination is
preclude a DNA testing, without need of a prior applicable only to testimonial evidence. Extracting a
court order, at the behest of any party, including blood sample and cutting a strand from the hair of
law enforcement agencies, before a suit or the accused are purely mechanical acts that do not
proceeding is commenced (Sec. 4). involve his discretion nor require his intelligence.
(2004 Bar Question)
Q: What are the requisites for the issuance of a
DNA testing order?
Q: Is the result of DNA testing automatically 2. Such sample is relevant to the case; and
admitted as evidence in the case in which it was 3. The testing would probably result in the
sought for? reversal or modification of the judgment of
conviction (Sec. 6).
A: No. The grant of a DNA testing application shall
not be construed as an automatic admission into Q: What is the remedy of the convict if the post-
evidence of any component of the DNA evidence conviction DNA testing result is favorable to him?
that may be obtained as a result thereof (Sec. 5).
A: The convict or the prosecution may file a petition
Q: If a DNA test was conducted, what are the for a writ of habeas corpus in the court of origin. In
possible results that it may yield? case the court, after due hearing, finds the petition
to be meritorious, it shall reverse or modify the
A: judgment of conviction and order the release of the
1. The samples are similar, and could have convict, unless continued detention is justified for a
originated from the same source (Rule of lawful cause (Sec. 10).
Inclusion). In such a case, the analyst
proceeds to determine the statistical d. ASSESSMENT OF PROBATIVE VALUE OF DNA
significance of the similarity. EVIDENCE AND ADMISSIBILITY
2. The samples are different hence it must
have originated from different sources (Rule Q: What should the courts consider in determining
of Exclusion). This conclusion is absolute the probative value of DNA evidence?
and requires no further analysis;
3. The test is inconclusive. This might occur A:
due to degradation, contamination, failure 1. The chain of custody, including how the
of some aspect of protocol, or some other biological samples were collected, how they
reasons. Analysis might be repeated to were handled, and the possibility of
obtain a more conclusive result (People v. contamination of the samples;
Vallejo, G.R. No. 144656, May 9, 2002). 2. The DNA testing methodology, including the
procedure followed in analyzing the
Q: What should the courts consider in evaluating samples, the advantages and disadvantages
DNA testing results? of the procedure, and compliance with the
scientifically valid standards in conducting
A: the tests;
1. The evaluation of the weight of matching 3. The forensic DNA laboratory, including
DNA evidence or the relevance of accreditation by any reputable standards-
mismatching DNA evidence; setting institution and the qualification of
2. The results of the DNA testing in the light of the analyst who conducted the tests. If the
the totality of the other evidence presented laboratory is not accredited, the relevant
in the case; and experience of the laboratory in forensic
3. DNA results that exclude the putative casework and credibility shall be properly
parent from paternity shall be conclusive established; and
proof of non-paternity (Sec. 9). 4. The reliability of the testing result (Sec. 7).
315
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: Why is the best evidence rule often described presented an expert witness to prove that her
as a misnomer? signature in the promissory note was forged. Jean
objected to the presentation of Paula’s expert
A: Because it merely requires the best evidence witness on the ground that the finding of said
available and, in the absence thereof, allows the witness is based on a mere photocopy of the
introduction of secondary evidence. promissory note. Is the objection of Jean tenable?
317
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
existence and the cause of its unavailability ledgers, all the entries are likewise equally
without bad faith on his part, may prove its regarded as originals (Sec. 4).
contents by a copy, or by a recital of its
contents in some authentic document, or by Q: What is the rule on duplicate original?
the testimony of witnesses in the order
stated (Sec. 5). (1997 Bar Question) A: It states that when a document is in two or more
copies executed at or about the same time with
Q: Car was declared in default by the MTC in an identical contents, all such copies are equally
action for unlawful detainer. Plaintiff, Loise was regarded as originals (Sec. 4b, Rule 130). It may be
allowed to present evidence in support of her introduced in evidence without accounting for the
complaint. Photocopies of official receipts and non-production of the other copies.
original copies of affidavits were attached to the
position paper submitted by Loise.
d. REQUISITES FOR INTRODUCTION OF
Said documents were offered by Loise and SECONDARY EVIDENCE
admitted in evidence by the court on the basis of
which the court rendered judgment in favor of Q: What is secondary evidence?
Loise. Car appealed to the RTC claiming that the
judgment is not valid because the MTC based its A: Secondary evidence is that which shows that
judgment on mere photocopies and affidavits of better or primary evidence exists as to the proof of
persons not presented in court. Is the claim of Car the fact in question. It is the class of evidence that
valid? Explain. is relevant to the fact in issue, it being first shown
that the primary evidence of the fact is not
A: Yes, although the rules on summary procedure obtainable. It performs the same functions as that
requires merely the submission of position papers, of primary evidence. (Francisco, p. 68, 1992 ed.)
the evidence submitted with the position paper
must be admissible in evidence. Photocopies of Note: All originals must be first accounted for before
official receipts and affidavits are not admissible in one can resort to secondary evidence. It must appear
evidence without proof of loss of the originals. that all of them have been lost or destroyed or cannot
(2000 Bar Question) be produced in court. The non-production of the
original document, unless it falls under any of the
Q: What is the Collateral Facts Rule? exceptions in Sec. 3, Rule 130, gives rise to the
presumption of suppression of evidence.
A: It states that a document or writing which is
merely “collateral” to the issue involved in the case Q: When may secondary evidence be admitted?
on trial need not be proved. Where the purpose of
presenting a document is not to prove its contents, A: It may be admitted only by laying the basis for its
but merely to give coherence to, or to make production and such requires compliance with the
intelligible the testimony of a witness regarding a following:
fact contemporaneous to the writing, the original of 1. The offeror must prove the due execution
the document need not be presented. and existence of the original document;
2. The offeror must show the cause of its
c. MEANING OF ORIGINAL unavailability; and
3. The offeror must show that the
Q: What is an original document? unavailability was not due to his bad faith.
A: There are three concepts of “original” document: Accordingly, the correct order of proof is as follows:
1. The original of a document is one the existence, execution, loss, and contents. This order
contents of which are the subject of inquiry; may be changed if necessary at the sound
2. When a document is in 2 or more copies discretion of the court. (Citibank N.A. Mastercard v.
executed at or about the same time, with Teodoro, G.R. No. 150905, Sept. 23, 2003)
identical contents, including signed carbon
Note: Intentional destruction of the originals by a
copies, all such copies are equally regarded
party who acted in good faith does not preclude the
as originals; or
introduction of secondary evidence of the contents
3. When an entry is repeated in the regular thereof.
course of business, one being copied from
another at or near the time of the
transaction, including entries in journals and
Q: What is the order of presentation of secondary 3. Any person who heard when the document
evidence? was being read;
4. Any person who was present when the
A: contents of the document were talked over
1. Copy of the original; by the parties to such an extent as to give
2. A recital of the contents of the document in him reasonably full information of the
some authentic document; or contents; or
3. By the testimony of witnesses (Sec. 5, Rule 5. Any person to whom the parties have
130) stated or confessed the contents thereof.
Q: What is Definite Evidentiary Rule? Q: May the presentation or the offer of the
original be waived?
A: Where the law specifically provides for the class
and quantum of secondary evidence to establish A: Yes, if the party against whom the secondary
the contents of a document, or bars secondary evidence is offered does not object thereto when
evidence of a lost document, such requirement is the same is offered in evidence, the secondary
controlling. E.g. Evidence of a lost notarial will evidence becomes primary evidence. But even
should consist of a testimony of at least two admitted as primary evidence, its probative value
credible witnesses who can clearly and distinctly must still meet the various tests by which its
establish its contents (Sec. 6, Rule 76). reliability is to be determined. Its admissibility
should not be confused with its probative value.
Q: How may the due execution of the document (Heirs of Teodoro De la Cruz v. CA, G.R. No. 117384,
be proved? Oct. 21, 1998)
A: It may be proved through the testimony of: Q: What facts must be shown by the party offering
1. The person who executed it; secondary evidence if the original is in the custody
2. The person before whom its execution was of the adverse party?
acknowledged;
3. Any person who was present and saw it A:
executed and delivered; 1. Original is in the possession or under the
4. Any person who thereafter saw and control of the opponent;
recognized the signature; 2. Demand or notice is made to him by the
5. One to whom the parties thereto had proponent signifying that the document is
previously confessed the execution thereof; needed;
or 3. Failure or refusal of opponent to produce
6. By evidence of the genuineness of the document in court; and
signature or handwriting of the maker. (Sec. 4. Satisfactory proof of existence of document
20, Rule 132) (Sec. 6).
Q: How may the loss or destruction be proved? Note: The party who called for a document is not
obliged to offer it into evidence (Sec. 8).
A: It may be proved by:
1. Any person who knew of such fact; Q: What is the form of notice required to be given
2. Anyone who, in the judgment of the court, to the adverse party?
had made sufficient examination in the
places where the document or papers of A: No particular form of notice is required as long
similar character are usually kept by the as it fairly appraises the other party as to what
person in whose custody the document papers are desired. Even an oral demand in open
was and has been unable to find it; or court for such production at a reasonable time
3. Any person who has made any other thereafter will suffice. Such notice must, however,
investigation which is sufficient to satisfy be given to the adverse party, or his attorney, even
the court that the document is indeed lost. if the document is in the actual possession of a third
person. (Regalado, Vol. II, p. 726, 2008 ed.)
Q: How may the contents be proved?
Q: What is the effect if the refusal or failure of the
A: They may be proved by the testimony of: adverse party to produce the original is justified?
1. Any person who signed the document;
2. Any person who read it; A: It does not give rise to the presumption of
suppression of evidence, or create an unfavorable
319
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: What is the effect of not offering a document in A: According to Black's Law Dictionary, evidence is
evidence after calling for its production and "any species of proof, or probative matter, legally
inspection? presented at the trial of an issue, by the act of the
parties and through the medium of witnesses,
A: If the party who calls for the production of a records, documents, exhibits, concrete objects, etc.
document does not offer the same in evidence, no for the purpose of inducing belief in the minds of
unfavorable inference may be drawn from such the court or jury as to their contention." Electronic
failure. This is because a party who calls for the information (like paper) generally is admissible into
production of a document is not required to offer it. evidence in a legal proceeding..
(Sec. 8, Rule 130)
Q: What are the distinctions between the Q: What is Electronic Data Message?
production of documents under Sec. 8, Rule 130
and Rule 27 (mode of discovery)? A: Electronic data message refers to information
generated, sent, received or stored by electronic,
A: optical or similar means.
SEC. 8, RULE 130 RULE 27
The production of b. PROBATIVE VALUE OF ELECTRONIC
Procured by mere notice
document is in the nature DOCUMENTS OR EVIDENTIARY WEIGHT; METHOD
to the adverse party,
of a mode of discovery OF PROOF
which is a condition
and can be sought only by
precedent for the
proper motion in the trial Q: What are the factors to be considered in
subsequent introduction
court and is permitted assessing evidentiary weight of an electronic
of secondary evidence
only upon good cause document?
by the proponent.
shown.
Contemplates a situation
Presupposes that the A:
wherein the document is
document to be 1. The reliability of the manner or method in
either assumed to be
produced is intended as which it was generated, stored or
favorable to the party in
evidence for the communicated, including but not limited
possession thereof or that
proponent who is to input and output procedures, controls,
the party seeking its
presumed to have tests and checks for accuracy and
production is not
knowledge of its reliability of the electronic data message
sufficiently informed of
contents. or document, in the light of all the
the contents of the same.
circumstances as well as any relevant
4. RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01- agreement;
7-01-SC) 2. The reliability of the manner in which its
originator was identified;
Q: In what cases do the Rules on Electronic 3. The integrity of the information and
Evidence applies? communication system in which it its
recorded or stored, including but not
A: It shall apply to all civil actions and proceedings, limited to the hardware and computer
as well as quasi-judicial and administrative cases programs or software used as well as
(Sec. 2, Rule 1). programming errors;
4. The familiarity of the witness or the
Q: State the rule on the admissibility of electronic person who made the entry with the
evidence. communication and information system;
321
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
5. The nature and quality of the information 1. The electronic signature is that of the
which went into the communication and person to whom it correlates;
information system upon which the 2. The electronic signature was affixed by that
electronic data message document was person with the intention of authenticating
based; or or approving the electronic document to
6. Other factors which the court may which it is related or to indicate such
consider as affecting accuracy or integrity person’s consent to the transaction
of the electronic document or electronic embodied therein; and
data message. (Sec. 1, Rule 7) 3. The methods or processes utilized to affix or
verify the electronic signature operated
C. AUTHENTICATION OF ELECTRONIC DOCUMENTS without error or fault (Sec. 3, Rule 6).
AND ELECTRONIC SIGNATURES
Q: What is a Digital Signature?
Q: How is an electronic document authenticated?
A: It refers to an electronic signature consisting of a
A: transformation of an electronic document or an
1. By evidence that it had been digitally electronic data message using an asymmetric or
signed by the person purported to have public cryptosystem such that a person having the
signed the same; initial untransformed electronic document and the
2. By evidence that other appropriate signer’s public key can accurately determine:
security procedures or devices as may be 1. whether the transformation was created
authorized by the Supreme Court or by using the private key that corresponds to
law for authentication of electronic the signer’s public key; and
documents were applied to the 2. whether the initial electronic document had
document; or been altered after the transformation was
3. By other evidence showing its integrity made [Sec. 1(e), Rule 2]
and reliability to the satisfaction of the
judge (Sec. 2, Rule 5). Q: What is the effect of authentication of digital
signatures?
Q: What is Electronic Signature?
A: Upon authentication, it shall be presumed that:
A: It refers to any distinctive mark, characteristic 1. The information contained in a certificate is
and/or sound in electronic form, representing the correct;
identity of a person and attached to or logically 2. The digital signature was created during the
associated with the electronic data message or operational period of a certificate;
electronic document or any methodology or 3. No cause exists to render a certificate
procedure employed or adopted by a person and invalid or revocable;
executed or adopted by such person with the 4. The message associated with a digital
intention of authenticating, signing or approving an signature has not been altered from the
electronic data message or electronic document. time it was signed; and
For purposes of these Rules, an electronic signature 5. A certificate had been issued by the
includes digital signatures [Sec. 1 (j), Rule 2]. certification authority indicated therein
(Sec. 4, Rule 6).
Q: How is an electronic signature authenticated?
d. ELECTRONIC DOCUMENTS AND THE HEARSAY
A: RULE
1. By evidence that a method or process was
utilized to establish a digital signature and Q: When is the Hearsay Rule not applicable to
verify the same; electronic documents?
2. By any other means provided by law; or
3. By any other means satisfactory to the judge A: A memorandum, report, record or data
as establishing the genuineness of the compilation of acts, events, conditions, opinions, or
electronic signature (Sec. 2, Rule 6). diagnoses, made by electronic, optical or other
similar means at or near the time of or from
Q: What is the effect of authentication of an transmission or supply of information by a person
electronic signature? with knowledge thereof, and kept in the regular
course or conduct of a business activity, and such
A: Upon authentication, it shall be presumed that: was the regular practice to make the
323
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
of the written contract by extrinsic agreement for the execution of the written agreement.
the reason that there is no contract in existence. (Sec. 9)
There is nothing in which to apply the excluding
rule. Conditions subsequent may not be established c. DISTINCTIONS BETWEEN THE BEST EVIDENCE
by parol evidence since a written contract already RULE AND PAROL EVIDENCE RULE
exists.
Q: Distinguish parol evidence rule from best
a. APPLICATION OF THE PAROL EVIDENCE RULE evidence rule.
Note: Parol evidence rule does not apply, and may not 6. AUTHENTICATION AND PROOF OF DOCUMENTS
properly be invoked by either party to the litigation (RULE 132)
against the other, where at least one party to the suit
is not a party or privy of a party to the written Q: When is authentication of documents not
instrument in question and does not base a claim or required?
assert a right originating in the instrument of the
relation established thereby. Thus, if one of the parties A:
to the case is a complete stranger to the contract 1. The writing is an ancient document (Sec.
involved therein, he is not bound by this rule and can
21);
introduce extrinsic evidence against the efficacy of the
2. GR: The writing is a public document or
writing. (Lechugas v. CA et.al., G.R. Nos. L-39972 & L-
40300, Aug. 6, 1986)
record (Sec. 19);
Q: What are the exceptions to the parol evidence XPN: A private document required by law to
rule? be recorded – while they are public
documents, the public writing is not the
A: A party may present evidence to modify, explain writing itself but the “public record”
or add to the terms of the written agreement if he thereof. Such recording does not make the
puts in issue in his pleadings the following: private writing itself a public document so
1. An intrinsic ambiguity, mistake or as to make it admissible without
imperfection in the written agreement; authentication.
2. Failure of the written agreement to express
the true intent of the parties thereto; 3. The writing is a notarial document
3. Validity of the written agreement; or acknowledged, proved or certified (Sec. 30);
4. Existence of other terms agreed to by the 4. The authenticity and due execution of the
parties or their successors in interest after document has been expressly admitted or
impliedly admitted by failure to deny the
same under oath; or
5. When such genuineness and due execution of its genuineness and due authentic is received
are immaterial to the issue. execution in evidence, its due
execution and
a. MEANING OF AUTHENTICATION authenticity must be
proved either:
Q: What is authentication?
1. By anyone who saw
the document
A: It is proving the due execution and genuineness
executed or written;
of the document.
or
2. By evidence of the
Q: What is document? genuineness of the
A: It is a deed, instrument or other duly authorized signature or
paper by which something is proved, evidenced or handwriting of the
set forth. (Bermejo v. Barrios, G.R. No. L-23614, Feb. maker.
27, 1970)
Any other private
b. PUBLIC AND PRIVATE DOCUMENTS document need only
be identified as that
Q: What are public and private documents. which it is claimed to
be (Sec. 20).
A: Public documents are: As to persons bound
1. The written official acts, or records of the Binds only the parties
official acts of the sovereign authority, who executed them
Evidence even against third
official bodies and tribunals, and public or their privies,
persons, of the fact which
officers, whether of the Philippines, or of a insofar as due
gave rise to its due execution
foreign country; execution and date
and to the date of the latter
of the document are
2. Documents acknowledge before a notary
concerned
public except last wills and testaments; and
As to validity of certain transactions
3. Public records, kept in the Philippines, of
Certain transactions must be
private documents required by law to the
contained in a public
entered therein. document; otherwise they
Note: All other writings are private. (Sec. 19)
will not be given any validity.
325
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
acceptation, but evidence is admissible to specimens of the questioned signatures with those
show that they have a local, technical, or of the currently existing ones (Pontaoe v. Pontaoe,
otherwise peculiar signification, and were G.R. No. 15958, Apr. 22, 2008).
so used and understood in the particular
instance, in which case the agreement must d. WHEN EVIDENCE OF AUTHENTICITY OF A
be construed accordingly. PRIVATE WRITING IS NOT REQUIRED (ANCIENT
6. When an instrument consists partly of DOCUMENTS)
written words and partly of a printed form,
and the two are inconsistent, the former Q: What are the requisites for an ancient
controls the latter. document to be exempt from proof of due
7. When the characters in which an execution and authenticity (rule on ancient
instrument is written are difficult to be document/authentic document rule)?
deciphered, or the language is not
understood by the court, the evidence of A:
persons skilled in deciphering the 1. The private document be more than 30
characters, or who understand the years old;
language, is admissible to declare the 2. That it be produced from a custody in which
characters or the meaning of the language. it would naturally be found if genuine; and
8. When the terms of an agreement have been 3. That it is unblemished by any alteration or
intended in a different sense by the circumstances of suspicion (Sec. 21).
different parties to it, that sense is to
prevail against either party in which he Note: Ancient document rule applies only if there are
supposed the other understood it, and no other witnesses to determine authenticity.
when different constructions of a provision
are otherwise equally proper, that is to be e. HOW TO PROVE GENUINENESS OF A
taken which is the most favorable to the HANDWRITING
party in whose favor the provision was
made. Q: How is the genuineness of a person’s
9. When an instrument is equally susceptible handwriting proved?
of two interpretations, one in favor of
natural right and the other against it, the A:
former is to be adopted. 1. It may be proved by any witness who actually
10. An instrument may be construed according saw the person writing the instrument;
to usage, in order to determine its true 2. By any person who is familiar or has acquired
character (Secs. 10-19). knowledge of the handwriting of such person,
his opinion as to the handwriting being an
c. WHEN A PRIVATE WRITING REQUIRES exception to the opinion rule under Secs. 48
AUTHENTICATION; PROOF OF A PRIVATE WRITING & 50 of Rule 130;
3. By a comparison of the questioned
Q: Is the testimony of a handwriting expert handwriting from the admitted genuine
indispensable to the examination or the specimens thereof; or
comparison of handwritings in cases of forgery? 4. By expert witness (Secs. 20 & 22, Rule 132;
Sec. 49, Rule 130).
A: No. Handwriting experts are usually helpful in
the examination of forged documents because of f. PUBLIC DOCUMENTS AS EVIDENCE; PROOF OF
the technical procedure involved in analyzing them, OFFICIAL RECORD
but resort to these experts is not mandatory or
indispensable. Q: How are public records proved?
A finding of forgery does not depend entirely on the A: Written official acts, or records of the official acts
testimonies of handwriting experts, because the of the sovereign authority, official bodies and
judge must conduct an examination of the tribunals, and public officers, e.g. a written foreign
questioned signature in order to arrive at a law, may be evidenced by:
reasonable conclusion as to its authenticity. The 1. If it is within the Philippines
opinions of handwriting experts are not binding a. an official publication thereof; or
upon courts, especially when the question involved b. by a copy attested by the officer having
is mere handwriting similarity or dissimilarity, which the legal custody of the record, or by his
can be determined by a visual comparison of deputy.
2. If it is kept in a foreign country
a. an official publication thereof; or license to carry any firearm. The certifying officer,
b. by a copy attested by the officer having however, was not presented as a witness. Is the
the legal custody of the record, or by his certification of the PNP Firearm and Explosives
deputy and accompanied with a Office without the certifying officer testifying on it
certificate that such officer has the admissible in evidence against Lino?
custody. The certificate may be made by
a secretary of the embassy or legation, A: Yes. Section 28, Rule 130 of the Rules of Court
consul general, consul, vice consul, or provides that “a written statement signed by an
consular agent or by any officer in the officer having the custody of an official record or by
foreign service of the Philippines his deputy that after diligent search, no record or
stationed in the foreign country in entry of a specified tenor is found to exist in the
which the record is kept, and records of his office, accompanied by a certificate
authenticated by the seal of his office as above provided, is admissible as evidence that
(Sec. 24, Rule 132). the records of his office contain no such record or
entry.”
Q: Is a special power of attorney executed and The records of the PNP Firearm and Explosives
acknowledged before a notary public in a foreign Office are a public record. Hence, notwithstanding
country authorizing a person to file a suit against that the certifying officer was not presented as a
certain persons in the Philippines admissible in witness for the prosecution, the certification he
evidence? made is admissible in evidence against Lino. (2003
Bar Question)
A: No, because a notary public in a foreign country
is not one of those who can issue the certificate g. ATTESTATION OF A COPY
mentioned in Sec. 24, Rule 132 of Rules of Court.
Non-compliance with the said rule will render the Q: What must the attestation of a copy state?
SPA inadmissible in evidence. Not being duly
established in evidence, the SPA cannot be used to A: Whenever a copy of a document or record is
file a suit in representation of another. The failure attested for the purpose of evidence, the
to have the SPA authenticated is not a mere attestation must state, in substance:
technicality but a question of jurisdiction. (Heirs of 1. That the copy is a correct copy of the original,
Medina v. Natividad, G.R. No. 177505, Nov. 27, or a specific part thereof, as the case may be;
2008) 2. It must be under the official seal of the
attesting officer, if there be any, or if he be the
Q: May a public record be removed from its office? clerk of a court having a seal, under the seal of
such court.
A:
GR: No. Any public record must not be removed h. PUBLIC RECORD OF A PUBLIC DOCUMENT
from the office in which it is kept.
. Q: How may a public record of a private document
XPN: Upon order of a court where the be proved?
inspection of the record is essential to the just
determination of a pending case (Sec. 26, Rule A: Any of the following:
132). 1. By the original record; or
2. By a copy thereof, attested by the legal
Q: What is the probative value of documents custodian of the record, with an
consisting of entries in public records? appropriate certificate that such officer has
the custody (Sec. 27, Rule 132).
A: They are prima facie evidence of the facts stated
therein if entered by a public officer in the i. PROOF OF LACK OF RECORD
performance of a duty. All other public documents
are evidence, even against a third person, of the Q: How may the absence of a record be proven?
fact which gave rise to their execution and of the
date of the latter (Sec. 23, Rule 132). A: Proof of lack of record of a document consists of
written statement signed by an officer having
Q: Lino was charged with illegal possession of custody of an official record or by his deputy. The
firearm. During trial, the prosecution presented in written statement must contain the following
evidence a certification of the PNP Firearms and matters:
Explosives Office attesting that the accused had no 1. There has been a diligent search of the record;
327
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
2. That despite the diligent search, no record of cards, Overseas Workers Welfare Administration
entry of a specified tenor is found to exist in (OWWA) IDs, OFW IDs, seaman’s books, alien
the records of his office. certificate of registrations/immigrant certificate of
registrations, government office IDs, certifications
Note: The written statement must be accompanied by from the National Council for the Welfare of Disabled
a certificate that such officer has the custody of official Persons (NCWDP), and DSWD certifications.
records (Sec. 28, Rule 132).
Notaries public are prohibited from notarizing
j. HOW A JUDICIAL RECORD IS IMPEACHED documents or instruments of signatories who are not
personally known to them or who otherwise fail to
present competent evidence of their respective
Q: How may a judicial record be impeached?
identities (A.M. No. 02-8-13-SC, Re: 2004 Rules on
Notarial Practice, Feb. 19, 2008).
A: It may be impeached by evidence of:
1. Want of jurisdiction in the court or judicial
l. HOW TO EXPLAIN ALTERATIONS IN A
officer;
DOCUMENT
2. Collusion between the parties; or
3. Fraud in the party offering the record, in
Q: How should documents with alterations be
respect to the proceedings (Sec. 29).
presented as evidence for it to be admissible?
k. PROOF OF NOTARIAL DOCUMENTS
A: A party producing a document as genuine which
has been altered and appears to have been altered
Q: What is the evidentiary weight given to a
after its execution must account for the alteration.
notarial document?
He may show that the alteration:
1. was made by another, without his
A: Notarial documents celebrated with all the legal
concurrence;
requisites under a notarial certificate is evidence of
2. was made with the consent of the parties
a high character, and to overcome its recitals, it is
affected by it;
incumbent upon the party challenging it to prove
3. was otherwise properly or innocently made; or
his claim with clear, convincing and more than mere
4. that the alteration did not change the meaning
preponderant evidence.
or language of the instrument.
Note: Failure to do any of the above will make the
A notarized document carries the evidentiary document inadmissible in evidence (Sec. 31).
weight conferred upon it with respect to its due
execution, and it has in its favor the presumption of m. DOCUMENTARY EVIDENCE IN AN UNOFFICIAL
regularity which may only be rebutted by evidence LANGUAGE
so strong and convincing as to exclude all
controversy as to the falsity of the certificate. Q: May a document be admitted into evidence if it
Absent such, the presumption must be upheld. The is written in an unofficial language?
burden of proof to overcome the presumption of
due execution of a notarial document lies on the A: Documents written in an unofficial language shall
one contesting the same (Pan Pacific Industrial not be admitted as evidence unless accompanied
Sales Co. v. CA, G.R. No.125283, Aug. 9, 2005). with a translation into English or Filipino (Sec. 32).
NOTE: The ability to make known the perception of the Q: What is the rule on competency of witness?
witness to the court involves two factors: (a) the ability
to remember what has been perceived; and (b) the A: GR: A person who takes the witness stand is
ability to communicate the remembered perception. presumed to possess the qualifications of a
Consider a witness who has taken the oath and who witness. (Presumption of competency)
has personal knowledge of the event which he is going XPN: There is prima facie evidence of
to testify (Riano, Evidence: A Restatement for the Bar, incompetency in the following:
p. 248, 2009 ed). 1. The fact that a person has been recently
found of unsound mind by a court of
Q: What are the qualifications of a witness? competent jurisdiction; or
2. That one is an inmate of an asylum for the
A: A prospective witness must show that he has the insane.
following abilities:
1. To Observe – the testimonial quality of Q: What is the void dire examination?
perception;
2. To Remember – the testimonial quality of A: A preliminary examination conducted by the trial
memory; judge where the witness is duly sworn to answer as
3. To Relate – the testimonial quality of to his competency (Competency Examination).
narration; and
4. To Recognize a duty to tell the truth – the 3. DISQUALIFICATIONS OF WITNESSES
testimonial quality of sincerity.
Q: Who are disqualified to be witnesses under the
Q: What cannot be considered as grounds for rules?
disqualification?
A: Those who are:
A: GR: 1. Disqualified by reason of mental incapacity or
1. Religious or political belief; immaturity;
2. Interest in the outcome of the case; or 2. Disqualified by reason of marriage;
3. Conviction of a crime (Sec. 20). 3. Disqualified by reason of death or insanity of
XPN: Unless otherwise provided by law like the adverse party; and
following: 4. Disqualified on the ground of privileged
1. Those convicted of falsification of communication:
document, perjury or false testimony is a. Marital privilege;
prohibited from being witnesses to a will b. Attorney-client privilege;
(Art. 821, NCC). c. Doctor-patient privilege;
2. Those convicted of an offense involving d. Minister-penitent privilege; or
moral turpitude cannot be discharged to e. Public officer as regards communications
become a State witness (Sec. 17, Rule made in official confidence.
119; Sec. 10, R.A. 6981).
3. Those who fall under the disqualification Note: The qualifications and disqualifications of
provided under Secs. 21-24, Rule 130. witnesses are determined as of the time they are
produced for examination in court or at the taking of
2. COMPETENCY VS CREDIBILITY OF A WITNESS the depositions.
329
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
2. The incapacity must exist as of the time of presentation of the testimony of Cyrus on the
his production for examination (Riano, ground that, being a deaf-mute, he was not a
Evidence: A Restatement for the Bar, p. competent witness. Is the contention of the
254, 2009 ed.). accused correct?
Q: Who are disqualified by reason of mental A: No. A deaf-mute is not incompetent as a witness.
incapacity or immaturity? Deaf-mutes are competent witnesses where they
can:
A: 1. understand and appreciate the sanctity of
1. Mental incapacity – those whose mental an oath;
condition, at the time of their production 2. comprehend facts they are going to
for examination, is such that they are testify on; and
incapable of intelligently making known 3. communicate their ideas through a
their perception to others; he can still be qualified interpreter (People v. Tuangco,
a witness during his lucid interval. The G.R. No. 130331, Nov. 22, 2001).
disqualification is only absolute if the
insane person is publicly known to be b. DISQUALIFICATION BY REASON OF
insane and does not have lucid intervals. MARRIAGE/SPOUSAL IMMUNITY
preserved nor peace and tranquility which may be Q: Who can claim spousal immunity?
disturbed (Alvarez vs Ramirez, October 14, 2005)
A: The spouse who can object is the spouse-party
Q: What are the exceptions to the spousal and not the spouse-witness.
immunity?
A: Q: Gizelle was estranged from her husband Mico
1. In a civil case by one against the other; or for more than a year. Gizelle was temporarily
2. In a criminal case for a crime committed living with her sister in Pasig City. For unknown
by one against the other or the latter’s reasons, the house of Ivy’s sister was burned,
direct descendants or ascendants (Sec. killing the latter. Gizelle survived.
22), or Gizelle saw her Mico in the vicinity during the
3. Where the testimony was made outside incident. Later, Mico was charged with arson.
the marriage. During the trial, the prosecutor called Gizelle to
the witness stand and offered her testimony to
Q: Can this be waived? prove that her husband committed arson. Can
Gizelle testify over the objection of her husband
A: This can be waived just like any other objection on the ground of marital privilege?
to the competency of other witnesses. It can be
waived through failure to interpose timely A: Yes. The marital disqualification rule is aimed at
objection of by calling the other spouse as a protecting the harmony and confidences of marital
witness. relations. Hence, where the marital and domestic
relations are so strained that there is no more
Q: If an accused marries the prosecution witness harmony to be preserved nor peace and tranquillity
for the sole purpose of sealing the lips of the which may be disturbed, the marital disqualification
witness, will the prohibition apply? no longer applies.
A: Yes. As long as a valid marriage exists at the time The act of Mico in setting fire to the house of his
of the trial, the witness-spouse cannot be sister-in-law, knowing that his wife was there, is an
compelled to testify even where the crime charged act totally alien to the harmony and confidences of
is against the witness’ person, and even though the marital relation which the disqualification primarily
marriage was entered into for the express purpose seeks to protect. The criminal act complained of
of suppressing the testimony. had the effect of directly and vitally impairing the
conjugal relation. (Alvarez v. Ramirez, G.R. No.
Q: Distinguish spousal immunity from marital 143439, Oct. 14, 2005). (2006 Bar Question)
privilege.
c. DISQUALIFICATION BY REASON OF DEATH OR
A: INSANITY OF THE ADVERSE PARTY (DEAD MAN
Disqualification By STATUTE/SURVIVING PARTIES RULE)
Disqualification By Reason
Reason Of Marital
Of Marriage (Sec. 22)
Privilege (Sec. 24) Q: What are the elements for the application of
Can be claimed the rule?
Can be invoked only if one
whether or not the
of the spouses is a party to
other spouse is a party A:
the action
to the action
1. The defendant in the case is the executor
Applies only if the marriage Can be claimed even
or the administrator or a representative
is existing at the time the after the marriage is
testimony is offered dissolved of the deceased or the person of unsound
Applies only to mind;
Constitutes an absolute 2. The case is against the executor or the
confidential
prohibition for or against administrator or a representative of the
communications
the spouse of the witness deceased or the person of unsound mind;
between the spouses
The married person is 3. The subject matter of the action is a claim
The married witness would
on the stand but the or demand against the estate of a
not be allowed to take the
objection of privilege is deceased person or a person of unsound
stand at all because of the
raised when mind; and
disqualification. Even if the
confidential marital 4. The testimony is as to any matter of fact
testimony is, for or against
communication is occurring before the death of such
the objecting spouse.
inquired into deceased person or before such person
331
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
became of unsound mind. (Sec. 23, Rule 8. Negative testimony, that is, testimony
130) that a fact did not occur during the
lifetime of the deceased;
Q: What is covered by the disqualification by 9. Testimony on the present possession by
reason of death or insanity of the adverse party? the witness of a written document signed
by the deceased because such fact exists
A: It constitutes a partial disqualification of a even after the death of decedent;
witness wherein he is prohibited from testifying as 10. When the defendant/s, though heirs of
to any matter of fact occurring before the death or the deceased, are sued in their personal
insanity of a party to the transaction. and individual capacities; and
11. In actions against a partnership.
Note: The witness cannot testify on matters which
occurred in the presence and within the hearing of the Q: Can this be waived?
decedent to which he might testify on his personal
knowledge if he were alive. Facts favorable to the A: The disqualification under this rule is waived if
deceased or insane person or their representatives are the defendant does not timely object to the
not prohibited. admission of such evidence or testifies on the
prohibited matters or cross-examines thereon.
Q: What is the reason underlying the adoption of
the dead man statute? Q: Distinguish dead man’s statute from marital
disqualification rule.
A: To guard against the temptation to give false
testimony in regard of the transaction in question A:
on the part of the surviving party and to discourage Marital Disqualification
perjury. Dead Man’s Statute
Rule
Only a partial
Q: What are the cases not covered by the dead disqualification as the
man statute? witness is not completely
A complete and absolute
disqualified but is only
disqualification
A: prohibited from testifying
1. Testimony of mere witnesses who are on the matters therein
neither party plaintiffs, nor their specified
assignors, nor persons in whose behalf a GR: Applies to a civil or
case is prosecuted, nor to a nominal criminal case.
party, nor to officers and stockholders of XPN: In a civil case by one
Applies only to a civil
a plaintiff corporation; spouse against the other
case or special
2. If the person or persons mentioned under or in a criminal case for a
proceeding over the
the rule file a counterclaim ; crime committed by one
estate of a deceased or
spouse against the other
3. Where the deceased contracted with the insane person
or the latter’s direct
plaintiff through an agent and said agent
descendants or
is alive and can testify, but the testimony
ascendants
of the plaintiff should be limited to acts
performed by the agent;
d. DISQUALIFICATION BY REASON OF PRIVILEGED
4. Land registration cases instituted by the
COMMUNICATION
deceased’s representative, where the
oppositor is considered as defendant or in
Q: Who may assert the privilege?
cadastral cases where there are no
oppositors;
A: The holder of the privilege, authorized persons
5. When there is waiver;
and persons to whom privileged communication
6. If the plaintiff is the executor or
were made can assert the privilege.
administrator or other representative of a
deceased person, or the person of
Note: The disqualification applies to both civil and
unsound mind; criminal cases except as to the doctor-patient privilege,
7. When the testimony refers to fraudulent which is applicable only in civil cases. Unless waived,
transactions committed by the persons the disqualification under Sec. 24 remains even after
mentioned in the rule, provided such the various relationships therein have ceased to exist.
fraud is first established by other The privilege cannot be invoked where confidential
evidence; information are made in contemplation of death or in
furtherance or perpetuation of fraud. Unless waived,
333
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
chain of testimony necessary to convict A: The privilege is intended to facilitate and make
an individual for a crime. safe, full and confidential disclosure by patient to
doctor of all facts, circumstances, and symptoms,
Q: A tugboat owned by Speedy Port Service, Inc. untrammeled by apprehension of their subsequent
(SPS) sank in Manila Bay while helping to tow and enforced disclosure and publication on the
another vessel, drowning 5 of the crew in the witness stand, to the end that the physician may
resulting shipwreck. At the maritime board form a correct opinion, and be enabled safely and
inquiry, the 4 survivors testified. SPS engaged Atty. efficaciously to treat his patient.
Ely to defend against potential claims and to sue
the company owning the other vessel for damages Q: When is the privilege inapplicable?
to the tug. Ely obtained signed statements from
the survivors. He also interviewed other persons, A: It does not apply to communications which are:
in some instance making memoranda. The heirs of 1. Not given in confidence;
the 5 victims filed an action for damages against 2. Irrelevant to the professional
SPS. employment;
The counsel of the heirs of the 5 victims sent 3. Made for an unlawful purpose;
written interrogatories to Ely, asking whether 4. Intended to be made public; or
statements of the witnesses may be obtained. Ely 5. Waived either by contract or law.
refused to comply, arguing that the documents (Regalado, Vol. II, p. 751, 2008 ed.)
and information asked are privileged
communication. Is the contention tenable? Q: What are the pieces of information which
Explain. cannot be disclosed?
A:
A: Yes, the contention of counsel for SPS is tenable 1. Any advice or treat given to the client;
considering that he was acting in his professional 2. Any information acquired in attending
capacity in bringing about the statement he such patient provided that the advice,
obtained from the witnesses and the memoranda treatment or information was made or
he made. The notes, memoranda, and writings acquired in a professional capacity and
made by the counsel in pursuance of his was necessary to enable him to act in that
professional duty, form part of his private and capacity; and
confidential files in the cases handled by him; hence 3. That the information sought to be
privileged (Air Philippines Corp v. Penswell, Inc., G.R. disclosed would tend to blacken the
No. 172835, Dec. 13, 2007). reputation of the patient. (Sec. 24c, Rule
130)
(3) PHYSICIAN AND PATIENT
Q: Can such privilege be waived?
Q: What are the requisites for the application of
the privilege? A: Yes. The waiver may be made expressly or
impliedly. The waiver may be by a contract as in
A: medical or life insurance. When there is disclosure
1. The action involves a civil case; by the patient of the information, there is
2. The relation of physician and patient necessarily, a waiver. When the patient answers
existed between the person claiming the questions on cross on matters which are
privilege or his legal representative and supposedly privileged, the waiver also exists. There
the physician; could also be waiver by operation of law (sec4, Rule
3. The advice or treatment given by him or 28 of the Rules of Court) (Riano, p.292).
any information was acquired by the
physician while professionally attending Q: Is it necessary that the professional relationship
to the patient; exists between the doctor and patient when the
4. The information was necessary for the communication was made?
performance of his professional duty; and
5. The disclosure of the information would A: Yes. It is essential that while the doctor was
tend to blacken the reputation of the attending to the patient for curative, preventive or
patient. palliative treatment. It is not however necessary
that the relationship was created through the
Q: What is the purpose of this privilege? voluntary act of the patient. The treatment may
have been given at the behest of another. (Ibid.)
Q: Aimee sought to offer as evidence the privilege is claimed is not one duly authorized to
testimony of Dr. Naval to prove that Bob is not the practice medicine, surgery obstetrics.
illegitimate son of Yuring as the latter was sterile. Xavier is simply Ysa's husband who wishes to testify
Bob objected to the admissibility of the said on a document executed by medical practitioners.
testimony arguing that the same is covered by the This does not fall within the claimed prohibition.
physician-patient privilege because the testimony Neither can his testimony be considered a
would blacken the reputation of Yuring. It was circumvention of the prohibition because his
alleged that Yuring became sterile because he testimony cannot have the force and effect of the
contracted gonorrhea. Aimee argues that Yuring is testimony of the physician who examined the
long dead and, as such, the privilege may not be patient and executed the report (Krohn v. CA, G.R.
invoked. No. 108854, June 14, 1994).
1. Is the testimony of Dr. Naval covered by
the physician-patient privilege? (4) PRIEST AND PENITENT
2. Does the fact that Yuring is long dead bar
the application of the physician-patient Q: What are the requisites for its application?
privilege?
A:
A: 1. The confession must have been made to
1. Yes. Yuring's sterility arose when he the priest in his professional character
contracted gonorrhea, a fact which most according to the discipline of the church
assuredly blackens his reputation. In fact, to which the priest or minister belongs
given that society holds virility at a [Sec. 24(d)]; and
premium, sterility alone, without the 2. Communications made must be
attendant embarrassment of contracting confidential and must be penitential in
a sexually-transmitted disease, would be character e.g., under the seal of the
sufficient to blacken the reputation of any confessional (Regalado, Vol. II, p. 752,
patient (Gonzales v. CA, G.R. No. 117740, 2008 ed.)
Oct. 30, 1998).
Q: What is the purpose of this privilege?
2. No. The privilege of secrecy is not
abolished or terminated because of A: To allow and encourage individuals to fulfill their
death. The purpose of the law would be religious, emotional or other needs by protecting
thwarted and the policy intended to be confidential disclosures to religious practitioners.
promoted thereby would be defeated, if
death removed the seal of secrecy, from Q: When is the privilege inapplicable?
the communications and disclosures
which a patient should make to his A: When the communication is not penitential in
physician. After one has gone to his grave, character as when what is divulged is the plan to
the living are not permitted to impair his commit a crime.
name and disgrace his memory by
dragging to light communications and Q: What is the rationale behind the privilege
disclosures made under the seal of the granted to communications between
statute (Gonzales v. CA, G.R. No. 117740, minister/priest and the penitent?
Oct. 30, 1998).
A: It is to allow and encourage individuals to fulfill
Q: Xavier filed a complaint for declaration of their religious, emotional or other needs by
nullity of his marriage with Ysa on the ground of protecting confidential disclosures to religious
psychological incapacity. Xavier sought to testify practitioners (Peralta, Jr., p. 220, 2005 ed.).
on a confidential psychiatric evaluation report on
his wife. Ysa objected to Xavier’s testimony on the (5) PUBLIC OFFICERS
ground that it violates the physician-patient
privilege. Is the objection of Ysa correct? Q: What are the requisites for its application?
335
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
3. The public interest would suffer by the e. PARENTAL AND FILIAL PRIVILEGE RULE
disclosure of the communication.
(Regalado, Vol. II, p. 752, 2008 ed.) Q: May a descendant be compelled to testify
against his parents in a criminal case?
Q: When is the privilege inapplicable?
A: No, because no person may be compelled to
A: If what is asked: testify against his parents, other direct ascendants,
1. is useful evidence to vindicate the children or other direct descendants (Sec. 25).
innocence of an accused; A descendant may not be compelled to testify
2. lessen the risk of false testimony; against his parents notwithstanding Article 215 of
3. is essential to the proper disposition of the Family Code which allows the compulsion of a
the litigation; or descendant to testify against his parents when such
4. the benefit to be gained by a correct testimony is indispensable in a crime against the
disposition of the litigation was greater descendant or by one against the other. Any
than any injury which could inure to the conflict between the two provisions should be
relation by a disclosure of the resolved in favor of the Rules of Court provision
information. (Francisco, p. 171, 1992 ed.) because although found in a substantive law, the
aforesaid Family Code provision is essentially
Q: Is the privilege applicable to public officer in procedural in nature.
general?
Alternative Answer:
A: No. The privilege only applies to communications Yes. Article 215 of the Family Code provides that
to such officers who have a responsibility or duty to “No descendant shall be compelled, in a criminal
investigate or to prevent public wrongs, and not to case, to testify against his parents and
officials in general (Francisco, p. 139, 1992 ed.). grandparents, except when such testimony is
indispensable in a crime against the descendant or
Note: The court, not the witness, will determine the by one against the other”. The parental and filial
necessity of regarding the communication as privileged privilege under the Rules of Court notwithstanding,
(Francisco, p. 143, 1992 ed.). it is submitted that the Family Code is superior to
the former since a procedural rule of evidence
Q: What is the concept of executive privilege? cannot impair a substantive law. Hence, a
descendant may be compelled to testify against his
A: Certain types of information like military, parents if such testimony is indispensable in a crime
diplomatic and other national security matters may against the descendant or by one against the other.
be withheld from the public.
Q: Which should be applied between Rule 130,
Q: Secretary of Fisheries Nenito Abesamis received Sec. 25 of the Rules of Court and Art. 215 of the
an invitation for questioning in a hearing from the Family Code in case of conflict?
Senate of the Philippines regarding Fish Feeds
Scam. During the hearing, Abesamis didn’t answer A: It was suggested that the Rules of Court should
the questions propounded to him by Senator apply because it took effect in 1989 as compared
Renato Pamintuan claiming that his position to the Family Code which took effect in 1988. It
entitles him to invoke the executive privilege. Is may be argued that the former is procedural and
his contention correct? the latter is substantive; however, it was further
suggested that although the Family Code provision
A: No. As held in the case of Senate of the is substantive, it is procedural in character. So, of
Philippines vs. Ermita, (G.R. No. 169777, April 25, these two provisions, the Rules of Court,
2006). The Court upheld the doctrine of executive promulgated by the Supreme Court, should
privilege; it found the executive order partly prevail.
constitutionally defective, specifically Secs. 2(b) and
3 which required government officials below the OTHER PRIVILEGED MATTERS
heads of executive departments to secure consent
from the President before appearing in Q: What other matters are considered privileged?
congressional hearings and investigations. The
Court noted that E.O. 464 covers persons which are A:
a misuse of the doctrine because the privilege is to 1. The guardian ad litem shall not testify in
be properly invoked in relation to specific any proceeding concerning any
categories of information and not categories of information, statement, or opinion
persons. (Riano, 2009 ed., p. 298)
received from the child in the course of admitted in his testimony, e.g. under Sec. 8,
serving as a guardian ad litem, unless the R.A. 1379, the law providing for the
court finds it necessary to promote the forfeiture of unlawfully acquired property;
best interests of the child [Sec. 5 (e), Rule and under P.D. 749, in prosecutions for
on Examination of a Child Witness]; bribery and graft.
2. Editors, publisher, or duly accredited 5. Not to give an answer, which will tend to
reporter of any newspaper, magazine or degrade his reputation, unless it be to the
periodical of general circulation cannot be very fact at issue or to a fact from which
compelled to reveal the source of any the fact in issue would be presumed. But
news report or any information given to a witness must answer to the fact of his
him in confidence, unless a court or a previous final conviction for an offense
House or a committee of Congress finds (Sec. 3).
that such revelation is demanded for
State security (R.A. 1477); Q: What are the classifications of immunity
3. Voters may not be compelled to disclose statutes?
for whom they voted;
4. Trade secrets cannot be disclosed A:
although this is not absolute as the court Use Immunity Transactional Immunity
may compel disclosure where it is Prohibits the use of the Grants immunity to the
indispensable for doing justice (Francisco, witness' compelled witness from
p. 335, 1992 ed.); testimony and its fruits in prosecution for an
5. Bank deposits are absolutely confidential any manner in connection offense to which his
with the criminal compelled testimony
in nature except upon written permission
prosecution of the witness relates
of the depositor, or in cases of
impeachment, or upon lawful order of a
Q: May a witness refuse to answer questions
competent court (R.A. 1405; Francisco, p.
material to the inquiry?
335, 1992 ed.);
6. Conciliators and similar officials shall not
A:
testify in any court or body regarding any
GR: A witness cannot refuse to answer
matter taken up at the conciliation
questions. The witness has the obligation to
proceedings conducted by them (Art. 233,
answer questions, although his answer may
Labor Code); and
tend to establish a claim against him (Sec. 3).
7. Informers, for the protection of their
identity, cannot be compelled to testify
XPN: A witness may validly refuse to answer
by the prosecutor when their testimony
under the:
would merely be cumulative and
1. Right against self-incrimination – if his
corroborative (Herrera, Vol. V, p. 353,
answer will tend to subject him to
1999 ed.).
punishment for an offense; or
2. Right against self-degradation – if his
4. EXAMINATION OF A WITNESSES
answer will have a direct tendency to
degrade his character.
a. RIGHTS AND OBLIGATIONS OF A WITNESS
XPN to the XPN: A witness may not invoke the
Q: What are the rights of a witness?
right against self-incrimination nor the right
A:
against self-degradation if:
1. To be protected from irrelevant,
1. Such question is directed to the very fact
improper, or insulting questions, and
at issue or to a fact from which the fact at
from harsh or insulting demeanor;
issue would be presumed; or
2. Not to be detained longer than the
2. If it refers to his previous final conviction
interests of justice require;
for an offense. (Regalado, Vol. II, pp. 841-
3. Not to be examined except only as to
842, 2008 ed.)
matters pertinent to the issue;
4. Not to give an answer which will tend to
Note: Right against self-incrimination pertains only to
subject him to a penalty for an offense
natural persons and with respect to testimonial
unless otherwise provided by law (right compulsion only. This right may be invoked in all kinds
against self-incrimination) of proceedings where testimony is to be taken,
Note: This refers to immunity statutes including investigation by legislative bodies.
wherein the witness is granted immunity
from criminal prosecution for offenses
337
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
The constitutional assurance of the right against self- committees their power of inquiry. (In Re: Sabio,
incrimination is a prohibition against the use of G.R. No. 174340, Oct. 17, 2006).
physical or moral compulsion to extort
communications from the accused. It is simply a Q: Is the right against self-incrimination available
prohibition against legal process to extract from the to a witness who has been admitted to the
accused’s own lips, against his will, admission of his Witness Protection Program?
guilt (Ong v. Sandiganbayan & Office of the
Ombudsman, G.R. No. 126858, Sept. 16, 2005).
A: Any witness admitted into the program of the
Witness Protection, Security and Benefit Act cannot
Q: Distinguish the right against self-incrimination
refuse to testify or give evidence or produce books,
of the accused from that of an ordinary witness.
documents, records or writings necessary for the
prosecution of the offense or offenses for which he
A:
has been admitted into the Program on the ground
Accused Ordinary Witness
of the constitutional right against self-incrimination
Cannot be compelled to
but he shall enjoy immunity from criminal
testify or produce evidence
May be compelled to prosecution and cannot be subjected to any penalty
in the criminal case in which
testify by subpoena, or forfeiture for any transaction, matter or thing
he is the accused or one of
having only the right concerning his compelled testimony or books,
the accused, he cannot be
to refuse to answer a documents, records and writings produced (Sec. 14,
compelled to do so even by
particular R.A. 6981).
subpoena or other process
incriminating question
or order of the court. He
at the time it is put to
cannot be required either Q: Who may be admitted to the Witness
him.
for the prosecution, for co- Protection, Security and Benefit Program?
accused or even for himself.
A: Any person who has witnessed or has knowledge
Q: May a witness refuse to take the witness stand? or information on the commission of a crime and
has testified or is testifying or about to testify
A: before any judicial or quasi-judicial body, or before
GR: A witness may not refuse to take the any investigating authority may be admitted
witness stand. provided that:
XPNs: 1. the offense in which his testimony will be
1. An accused in a criminal case; or used is a grave felony as defined under
2. In civil and administrative cases that the Revised Penal Code, or its equivalent
partake the nature of or analogous to a under special laws;
criminal proceeding. As long as the suit is 2. his testimony can be substantially
criminal in nature, the party thereto can corroborated in its material points;
decline to take the witness stand. It is not 3. he or any member of his family within the
the character of the suit involved but the second civil degree of consanguinity or
nature of the proceedings that controls affinity is subjected to threats to life or
(Rosete, et. al. v. Lim, et. al., G.R. No. bodily injury or there is a likelihood that
136051, June 8, 2006). he will be killed, forced, intimidated,
harassed or corrupted to prevent him
Q: Mr. Talisman, a government official, was invited from testifying, or to testify falsely, or
by the Senate to be one of the resource persons in evasively, because or on account of his
the public hearing in one of its committees. When testimony; and
Mr. Talisman declined the invitation, the Senate 4. he is not a law enforcement officer, even
directed its sergeant-at-arms to place him under if he would be testifying against the other
arrest for contempt. He was arrested and brought law enforcement officers. In such a case,
to the Senate where he was detained. He filed a only the immediate members of his family
petition for certiorari and prohibition alleging that may avail themselves of the protection
his right against self-incrimination was violated. Is provided for under the Act (Sec. 3, R.A.
his contention correct? 6981).
A: No. The right against self-incrimination may only Q: Who is a State witness?
be invoked when the incriminating question is
being asked, since he has no way of knowing in A: Any person who has participated in the
advance the nature or effect of the questions to be commission of a crime and desires to be a witness
asked. That this right may possibly be violated or for the State, can apply and shall be admitted into
abused is no ground for denying respondent senate
339
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
wrong impression or inferences that may XPN: Where the prosecution witness was
have been created. It may also be an extensively cross-examined on the material points
opportunity to rehabilitate a witness and thereafter failed to appear and cannot be
whose credibility has been damaged produced despite a warrant of his arrest. (People vs
(Riano, p.319). Its purposes are: Gorospe, gr. 51513, May 15, 1984)
a. To afford opportunity to the witness
to explain or amplify his testimony Q: What is the effect of death or absence of a
during cross-examination; and witness after the direct examination by the
b. To explain any apparent proponent?
contradiction or inconsistency in his
statements. A:
1. If the witness was not cross-examined
4. Re-cross examination – It is limited to the because of causes attributable to the
new matters brought out on the redirect cross-examining party and the witness
examination of the witness and also on had always made himself available for
such other matters as may be allowed by cross-examination, the direct testimony
the court in its discretion. The purposes of the witness shall remain on record and
are: cannot be stricken off because the cross-
a. To overcome the proponent’s examiner is deemed to have waived his
attempt to rehabilitate the witness; right to cross-examine (Dela Paz v. IAC,
and G.R. No. 75860, Sept. 17, 1987).
b. To rebut damaging evidence brought 2. If the witness was partially cross-
out during cross-examination. examined but died before the completion
of his cross-examination, his testimony on
Q: What is the scope of a cross-examination? direct may be stricken out but only with
A: respect to the testimony not covered by
1. English rule – Where a witness is called to the cross-examination (People v. Señeris,
testify to a particular fact, he becomes a G.R. No. L-48883, Aug. 6, 1980).
witness for all purposes and may be fully 3. The absence of a witness is not sufficient
cross-examined upon all matters material to warrant the striking out of his
to the issue, the examination not being testimony for failure to appear for further
confined to the matters inquired about in cross-examination where the witness has
the direct examination. already been sufficiently cross-examined,
and the matter on which cross-
2. American rule – Cross-examination is examination is sought is not in
restricted to facts and circumstances controversy (Ibid.).
which are connected with the matters
that have been stated in the direct Q: Is the party who offered the testimony of a
examination of the witness. witness bound by such testimony?
(5) RECALLING THE WITNESS he has previously stated. It is not allowed (Sec. 10)
unless waived or when asking hypothetical
Q: What is the rule on recalling of a witness? questions to an expert witness. It is not allowed in
any type of examination.
A:
GR: A witness cannot be recalled without leave d. METHODS OF IMPEACHMENT OF ADVERSE
of court as the recalling of a witness is a matter PARTY
of judicial discretion. (Sec. 9, Rule 132)
XPN: Q: What is impeachment of a witness?
1. The examination has not been concluded;
2. If the recall of the witness was expressly A: It is a technique employed usually as part of
reserved by a party with the approval of cross-examination to discredit a witness’ testimony
the court. In these two cases the recall of by attacking his credibility. (Riano, Evidence: A
a witness is a matter of right. (Regalado, Restatement for the Bar, p. 323, 2009 ed.)
Vol. II, p. 848, 2008 ed.)
Note: Something more than the bare assertion of the Q: What is meant by impeachment of the adverse
need to propound additional questions is essential party as a witness?
before the court's discretion may rightfully be
exercised to grant or deny recall. There must be a A: That the witness is the adverse party does not
satisfactory showing of some concrete, substantial necessarily mean that the calling party will not be
ground for the recall. bound by the former’s testimony. The fact remains
that it was at his instance that his adversary was
c. LEADING AND MISLEADING QUESTIONS put on the witness stand. He is not bound only in
the sense that he may contradict him by
Q: What is leading question? introducing other evidence to prove a state of facts
contrary to what the witness testifies. Unlike an
A: It is one which suggests to the witness the ordinary witness, the calling party may impeach an
answer which the examining party desires. It is not adverse witness in all respects as if he had been
allowed except: called by the adverse party, except by evidence of
1. On cross-examination; his bad character. Under a rule permitting the
2. On preliminary matters; impeachment of an adverse witness, although the
3. When there is difficulty in getting direct and calling party does not vouch for the witness’
intelligible answers from a witness who is veracity, he is nonetheless bound by his testimony
ignorant, or a child of tender years, or is of if it is not contradicted or remains unrebutted (Gaw
feeble mind or a deaf-mute; v. Chua, G.R. No. 160855, April 16, 2008)
4. To unwilling witness or hostile witness; or
5. Witness is an adverse party or an officer, Q: What are the methods to impeach the adverse
director, or managing agent of a public or party’s witness?
private corporation or of a partnership or
association which is an adverse party. (Sec. A:
10). BY EVIDENCE THAT
BY PRIOR
HIS GENERAL
Q: Why are leading questions allowed during BY INCONSISTEN
REPUTATION FOR
cross-examination? CONTRADICT T
TRUTH, HONESTY,
ORY STATEMENTS
OR INTEGRITY OF
A: The witness is not the cross-examining party’s EVIDENCE “LAYING THE
THE WITNESS IS
PREDICATE"
witness. He is expected to be adverse or hostile to BAD
the cross-examiner. He is not expected to Refers to the Since the weight of Refer to
cooperate. prior the witness’ statements,
Note: A question that merely suggests a subject testimony of testimony depends oral or
without suggesting an answer or a specific thing is not the same on his credibility, he documentary,
a leading question. E.g. “State whether anything witness or may be impeached made by the
transpired between you and the defendants on the other by impairing his witness
17th of May 2008.” evidence credibility by sought to be
presented by showing his not impeached on
Q: What is misleading question? him in the pleasing reputation occasions
same case, but only as regards other than
A: It is one which assumes as true a fact not yet but not the his reputation for the trial in
testified to by the witness, or contrary to that which testimony of truth, honesty or which he is
other witness integrity testifying
341
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: May a witness be impeached by evidence of not merely to impeach him, the rule on laying the
particular wrongful acts? predicate does not apply.
f. EVIDENCE OF THE GOOD CHARACTER OF A Q: What are the exceptions to the res inter alios
WITNESS acta rule (first branch)?
Q: When can evidence of good moral character of Evidence of similar acts or occurrences compels the
the accused be presented? defendant to meet allegations that are not
mentioned in the complaint, confuses him in his
A: The accused may prove his good moral character defense, raises a variety of relevant issues, and
when pertinent to the moral trait involved in the diverts the attention of the court from the issues
offense charged (Sec.51 [a][1], Rule 130, Rules of immediately before it. Hence, the evidentiary rule
Court). guards the practical inconvenience of trying
collateral issues and protracting the trial and
Q: When can evidence of character of the prevents surprise or other mischief prejudicial to
offended party may be proved? litigants. (Cruz v. CA, G.R. No. 126713, July 27,
1998).
A: The good or bad moral character of the offended
party may be proved by the accused if it tends to b. ADMISSION BY A PARTY
establish in any reasonable degree the probability
or improbability of the offense charged (Sec. 51 Q: What is admission?
[a][3], Rule 130, Rules of Court). Also, not every
good or bad moral character of the offended party A: It is an act, declaration or omission of a party as
may be proved under this provision but only those to a relevant fact which may be given in evidence
which would establish the probability or against him (Sec. 26, Rule 130). It is any statement
improbability of the offense charged. of fact made by a party against his interest or
unfavorable to the conclusion for which he
5.ADMISSIONS AND CONFESSIONS contends or is inconsistent with the facts alleged by
him. (Regalado, Vol. II, p. 754, 2008 ed.)
a. RES INTER ALIOS ACTA RULE
Note: Sections 26 and 32 of Rule 130 refer to
Q: What is the principle of res inter alios acta alteri extrajudicial admissions.
nocere non debet?
Q: What are the requisites for an admission to be
A: This principle literally means “things done admissible?
between strangers ought not to injure those who
are not parties to it”. It has two branches: A:
1. The rights of a party cannot be prejudiced 1. Must involve matters of fact and not of
by an act, declaration, or omission of law;
another (Sec. 28). 2. Must be categorical and definite;
2. Evidence that one did or did not do a 3. Must be knowingly and voluntarily made;
certain thing at one time is not admissible and
to prove that he did or did not do the 4. Must be adverse to the admitter’s
same or similar thing at another time interests (Ibid.).
(Sec. 34).
343
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: What are the classifications of admissions? admissions by him. (Estrada v. Desierto, G.R. Nos.
146710-15, Apr. 3, 2001)
A:
1. Express – it is a positive statement or act. Q: Distinguish admission from confession.
2. Implied – it is one which may be inferred
from the declarations or acts of a person. A:
3. Judicial – when made in the course of a ADMISSION CONFESSION
judicial proceeding. A statement of fact which A statement of fact which
4. Extrajudicial – when made out of court or does not involve an involves an
even in a proceeding other than the one acknowledgment of guilt acknowledgment of guilt
under consideration. (Riano, Evidence: A or liability or liability
Restatement for the Bar, p. 117, 2009 ed.) Can be made only by the
May be made by third
5. Adoptive – It is a party’s reaction to a party himself and, in
persons and in certain
statement or action by another person some instances, are
cases, are admissible
admissible against his co-
when it is reasonable to treat the party’s against a party
accused
reaction as an admission of something
May be express or
stated or implied by the other person. A Always express
implied
third person’s statement becomes the
admission of the party embracing or
Q: What is self-serving declaration?
espousing it. Adoptive admission may
occur when a party:
A: It is one which has been made extrajudicially by
a. Expressly agrees to or concurs in an
the party to favor his interest. It is not admissible in
oral statement made by another;
evidence because they are inherently
b. Hears a statement and later on
untrustworthy, and would open the door to fraud
essentially repeats it;
and fabrication of testimony.
c. Utters an acceptance or builds upon
the assertion of another;
Q: Distinguish declaration against interest from
d. Replies by way of rebuttal to some
admissions.
specific points raised by another but
ignores further points which he or
A:
she has heard the other make; or
DECLARATION AGAINST
e. Reads and signs a written statement ADMISSIONS
INTEREST
made by another. (Republic v. Must have been made Need not be made
Kendrick Development Corp., G.R. against the proprietary or against the proprietary
No. 149576, Aug. 8, 2006) pecuniary interest of the or pecuniary interest
party of the party
Q: What is meant by the principle of adoptive Made by a party
admission? Must have been made by a himself, and is a
person who is either primary evidence and
A: It states that a party may, by his words or deceased or unable to competent though he
conduct, voluntarily adopt or ratify another’s testify be present in court and
statement. Where it appears that a party clearly ready to testify
and unambiguously assented to or adopted the Must be made ante litem
May be made at any
statements of another, evidence of those motam. (Regalado, Vol. II,
time. (Ibid)
statements is admissible against him. (Riano, p. 755, 2008 ed.)
Evidence: A Restatement for the Bar, p. 117, 2009 Admissible only against
Admissible even against
ed.) the party making the
third persons.
admission.
Note: One good example of adoptive admission is the It is an exception to the
It is NOT an exception
alleged admissions made by President Estrada when hearsay rule. (Riano,
to the hearsay rule.
his options had dwindled when, according to the Evidence: A Restatement for
(Ibid.)
Angara Diary, the Armed Forces withdrew its support the Bar, p. 116, 2009 ed.)
from him as President and Commander-in-Chief. Thus,
Angara had to allegedly ask Senate President Pimentel c. ADMISSION BY A THIRD PARTY
to advise Estrada to consider the option of “dignified
exit or resignation.” Estrada did not object to the Q: What are admissions by a third person?
suggested option but simply said he could never leave
the country. According to the court, his silence on this A: Admissions that is receivable in evidence against
and other related suggestions can be taken as adoptive the party who has expressly referred another to
A: f. ADMISSION BY PRIVIES
1. The act or declaration of a partner or
agent of the party must be within the Q: What are the requisites of an admission by
scope of his authority; privies?
2. During the existence of the partnership or
agency; and A:
3. After the partnership or agency is shown 1. There must be privity between the party
by evidence other than such act or and the declarant;
declaration (Sec. 29). 2. The declarant as predecessor-in-interest
made the declaration while holding the
Q: Are admissions made after a partnership has title to the property; and
been dissolved fall within the exception? 3. The admission relates to the property
(Sec. 31).
A:
GR: No, because such are made when the g. ADMISSION BY SILENCE
partnership ceased to exist.
Q: When is there an admission by silence?
XPN: Where the admissions are made in
connection with the winding up of the A: There is admission by silence when a party does
partnership affairs, said admissions are still or says nothing when he hears or observes an act or
admissible as the partner is acting as an agent declaration made in his presence when such act or
of his co-partner in said winding up. (Regalado, declaration is such as naturally to call for action or
Vol. II, p. 759, 2008 ed.) comment if not true, and when proper and possible
for him to do so. Such may be given in evidence
e. ADMISSION BY A CO-CONSPIRATOR against him. (Sec. 32, Rule 130)
Q: What are the requisites of an admission by a co- Q: What are the requisites of an admission by
conspirator? silence?
A: A:
1. The declaration or act be made or done 1. He must have heard or observed the act
during the existence of the conspiracy; or declaration of the other person;
2. The declaration or act must relate to the 2. He must have had the opportunity to
conspiracy; and deny it;
3. The conspiracy must be shown by 3. He must have understood the statement;
evidence other than the declaration or act 4. He must have an interest to object, such
(evidence aliunde) (Sec. 30) that he would naturally have done so, if
the statement was not true;
Q: Are extrajudicial admissions made by a 5. The facts were within his knowledge; and
conspirator after the conspiracy has terminated 6. The fact admitted or the inference to be
and even before trial admissible against the co- drawn from his silence is material to the
conspirator?
345
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
issue (Sec. 32, Rule 130; People v. Q: May the extra-judicial confession of an accused
Paragsa, G.R. No. L-44060, July 20, 1978). be admitted in evidence against his co-accused?
Q: What is the doctrine of interlocking Q: What are the elements of hearsay evidence?
confessions?
A:
A: It states that extrajudicial confessions 1. There must be an out-of-court statement;
independently made without collusion which are and
identical with each other in their essential details 2. That the statement made out of court, is
and corroborated by other evidence against the repeated and offered by the witness in
persons implicated, are admissible to show the court to prove the truth of the matters
probability of the latter’s actual participation in the asserted by the statement. (Riano,
commission of the crime. Evidence: A Restatement for the Bar, p.
348, 2009 ed.)
i. SIMILAR ACTS AS EVIDENCE
Q: What are the two concepts of hearsay
Q: What do similar acts of evidence prohibit? evidence?
347
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
knowledge or those which are derived from his own statement may be shown where the fact that it is
perception. (2007 Bar Question) made is relevant. Evidence as to the making of such
statement is not secondary but primary, for the
Q: What is the rationale of excluding hearsay statement itself may constitute a fact in issue or be
evidence? circumstantially relevant as to the existence of such
fact (Gotesco Investment Corp. v. Chatto, G.R. No.
A: There is no opportunity for cross-examination 87584, June 16, 1992). (2003 Bar Question)
hence it is not subject to the test of truth.
Q: What are the classifications of out-of-court
Q: Brothers Billy & Luis were charged with murder statements?
for killing Vhong’s father. Vhong, however, was
charged with parricide for being a co-principal to A:
the crime. The two cases were tried jointly not 1. Hearsay – Its probative force depends, in
until the two brothers withdrew their not guilty whole or in part, on the competency and
plea for murder. Thus, only Vhong’s case was tried credibility of some persons other that the
on the merits. The prosecution offered in evidence witness by whom it is sought to produce it
the affidavits of Billy & Luis containing their extra- (Estrada v. Desierto, G.R. Nos. 146710-15
judicial confessions. The two brothers were, & 146738, Apr. 3, 2001). It is inadmissible
however, not presented by the prosecution on the as evidence.
witness stand. Thereafter, the trial court convicted 2. Non-hearsay – This occurs when the
the accused. Is the trial court correct? purpose for introducing the statement is
not to prove the truth of the facts
A: No. The failure to present Billy and Luis gives the asserted therein but only the making of
affidavits the character of hearsay. It is hornbook the statements and are admissible in
doctrine that unless the affiants themselves take evidence when the making of the
the witness stand to affirm the averments in their statement is relevant. These are the so-
affidavits must be excluded from the judicial called independently relevant statements.
proceeding, being inadmissible hearsay. The 3. Exceptions to the hearsay rule – Those
voluntary admission of an accused made which are hearsay but are considered as
extrajudicially is not admissible in evidence against exceptions to the hearsay rule and are
his co-accused when the latter had not been given therefore admissible. (Secs. 37-47, Rule
an opportunity to hear him testify and cross- 130)
examine him (People v. Quidato, Jr., G.R. No.
117401. Oct. 1, 1998) Q: What are independently relevant statements?
Q: Distinguish hearsay evidence and opinion A: These are statements which are relevant
evidence. (2004 Bar Question) independently of whether they are true or not.
They are neither hearsay nor an exception to the
A: hearsay rule as the purpose thereof is not to prove
HEARSAY EVIDENCE OPINION EVIDENCE the truth of the declaration or document (Estrada v.
Expert evidence based on Desierto, G.R. Nos. 146710-15 & 146738, Apr. 3,
Consists of testimony the personal knowledge, 2001).
that is not based on skill, experience or training
personal knowledge of of the person testifying and They are relevant since they are the facts in issue or
the person testifying evidence of an ordinary are circumstantial evidence of the facts in issue.
witness on limited matters
Q: What are the classifications of independently
Q: Ben was charged with robbery and was arrested relevant statements?
by police operatives by virtue of a warrant of
arrest. In a press conference called by the police, A:
Ben admitted that he had robbed the victim. The 1. Those statements which are the very facts
prosecution presented in evidence a newspaper in issue;
clipping of the report of the reporter who was 2. Those statements which are
present during the press conference stating that circumstantial evidence of the fact in
Ben admitted the robbery. Is the newspaper issue. It includes the following:
clipping admissible in evidence against Ben? a. Statements of a person showing his
state of mind, that is, his mental
A: Yes. Regardless of the truth or falsity of a
statement, the hearsay rule does not apply and the
Q: What are the exceptions to the hearsay rule? Note: A dying declaration may be oral or written. If
oral, the witness who heard it may testify thereto
A: without the necessity of reproducing the word of the
1. Dying declaration; decedent, if he is able to give the substance thereof.
2. Declaration against interest; An unsigned dying declaration may be used as a
3. Act or declaration about pedigree; memorandum by the witness who took it down
4. Family reputation or tradition regarding (People v. Boller, G.R. Nos. 144222-24, Apr. 3, 2002).
pedigree;
5. Common reputation; (2) DECLARATION AGAINST INTEREST (SEC. 38)
6. Part of the res gestae;
7. Entries in the course of business; Q: What are the requisites for the admissibility of
8. Entries in official records; declaration against interest?
9. Commercial lists and the like;
10. Learned treaties; A:
11. Testimony or deposition at a former trial. 1. That the declaration is one made by a
dying person;
(1) DYING DECLARATION (SEC. 37) 2. That the declaration was made by said
dying person under a consciousness of his
Q: Define dying declaration. imminent death;
3. That the declaration refers to the cause
A: The ante mortem statements made by a person and circumstances surrounding the death
after the mortal wound has been inflicted under the of the declarant and not of anyone else;
belief that the death is certain, stating the fact 4. That the declaration is offered in a case
concerning the cause of and the circumstances where the declarant’s death is the subject
surrounding the attack. of the inquiry;
5. The delcarant is competent as a witness
Q: What are the requisites of dying declaration to had he survived;
be considered as an exception to the hearsay rule? 6. The declarant should have died. (Riano,
p.379)
A:
1. The declaration is one made by a dying person; Q: Distinguish declaration against interest from
2. The declaration was made by said dying person admission against interest.
under a consciousness of his impending death;
3. The declaration refers to the cause and A:
circumstances surrounding the death of the DECLARATION AGAINST ADMISSION AGAINST
INTEREST INTEREST
declarant and not of anyone else;
Made by a person who is Made by a party to a
4. The declaration is offered in a case wherein
neither a party nor in litigation or by one in
the declarant’s death is the subject of the privity with a party to the privity with or identified
inquiry; and suit and are secondary in legal interest with
evidence but constitute an such party.
349
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
The witness is the one to Q: What are the reasons for the admissibility of
whom the fact relates, it common reputation?
Relation of the declarant
is not necessary for him
and the person subject of
to establish by A:
the inquiry must be
independent evidence his 1. Necessity arising from the inherent
established by
relationship to the family difficulty of obtaining any other evidence
independent evidence
(Francisco, p. 292, 1992 than that in the nature of common
ed.)
reputation; and
Testimony is about what
Testimony is about family 2. Trustworthiness of the evidence arising
declarant, who is dead or
reputation or tradition from:
unable to testify, has said
covering matters of
concerning the pedigree
pedigree a. The supposition that the public is
of the family
conversant with the subject to be
proved because of their general
(5) COMMON REPUTATION (SEC. 41)
interest therein; and
b. The fact that the falsity or error of
Q: What is common reputation?
such evidence could be exposed or
corrected by other testimony since
A: It is the definite opinion of the community in
the public are interested in the
which the fact to be proved is known or exists. It
same. (Francisco, pp. 296-297, 1992
means the general or substantially undivided
ed.)
reputation, as distinguished from a partial or
qualified one, although it need not be unanimous.
(6) RES GESTAE (SEC.42)
(Regalado, Vol. II, p. 787, 2008 ed.)
351
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: Distinguish res gestae from dying declaration. iii. The equivocal act must be relevant
to the issue; and
A: iv. The verbal acts must be
RES GESTAE DYING DECLARATION contemporaneous with the equivocal
A sense of impending act.
death takes the place of
It is the event itself
an oath and the law 2. Spontaneous Statements - Statements or
which speaks
regards the declarant as exclamations made immediately after
testifying some exciting occasion by a participant or
May be made by the spectator and asserting the circumstances
killer after or during the Can be made by the of that occasion as it is observed by him.
killing or that of a third victim only The res gestae is the startling occurrence.
person
It may be prior to or simultaneously with,
May precede, or Confined to matters
or subsequent with the startling
accompany or follow the occurring after the
occurrence.
principal act homicidal act
Justification is the
Justification is the trustworthiness, being
Requisites:
spontaneity of the given by the person who i. There must be a startling occurrence;
statement was aware of his ii. The statement must relate to the
impending death circumstances of the startling
occurrence;
Q: What is the reason for the rule on res gestae? iii. The statement must be spontaneous.
A: The reason for the rule is human experience. It Q: Anthony raped Melissa. After raping Melissa,
has been shown that under certain external Anthony fled. Melissa then rushed to the police
circumstances of physical or mental shock, the state station and told Police Officer Gilbert what had
of nervous excitement which occurs in a spectator happened. Anhthony was charged with rape.
may produce a spontaneous and sincere response During the trial, Melissa can no longer be located.
to the actual sensations and perceptions produced If the prosecution presents Gilbert to testify on
by the external shock. what Melissa had told him, would such testimony
As the statements or utterances are made under of Gilbert be hearsay? Explain.
the immediate and uncontrolled domination of the
senses, rather than reason and reflection, such A: No. It is part of res gestae. It is also an
statements or utterances may be taken as independently relevant statement. Buloy testified
expressing the real belief of the speaker as to the based on his personal knowledge; that is, he was
facts he just observed. The spontaneity of the testifying to the fact that Reyna told him that she
declaration is such that the declaration itself may was raped by Sam and not to the truth of Reyna’s
be regarded as the event speaking through the statement (People v. Gaddi, G.R. No. 74065, Feb.
declarant rather than the declarant speaking for 27, 1989). (2005 Bar Question)
himself (Ibid.).
(7) ENTRIES IN THE ORDINARY COURSE OF
Q: What are the two types of res gestae? BUSINESS/SHOP-BOOK RULE (SEC. 43)
5. The entries were made in the ordinary or Q: Should entries in the police blotter be given
regular course of business or duty. probative value?
(Regalado, Vol. II, pp. 791-792, 2008 ed.)
A: No, as they are not conclusive evidence of the
Q: How is regularity of the entries proved? truth of the contents but merely of the fact that
they were recorded. (People v. Cabrera, Jr., G.R. No.
A: It may be proved by the form in which they 138266, Apr. 30, 2003)
appear as entries in the books/ledgers. There is no Q: Distinguish entries in the course of business
need to present for testimony the clerk who from entries in official record.
manually made the entries. The person who
supervised such clerk is competent to testify that: A:
1. The account was prepared under his ENTRIES IN THE COURSE ENTRIES IN OFFICIAL
supervision; and OF BUSINESS RECORD
2. That the entries were regularly entered in It is sufficient that the The entrant, if a private
the ordinary course of business entrant made the entries individual, must have
(Regalado, Vol. II, p. 792, 2008 ed.). pursuant to a duty be it acted pursuant to a
legal, contractual, moral specific legal duty
Q: Is there an instance where business entries may or religious. specially enjoined by law.
be admitted in evidence even when the declarant Entrant must be dead or
No such requirement
is alive? unable to testify.
A: The entries will not be admitted as an exception (9) COMMERCIAL LIST AND THE LIKE (SEC. 45)
to the hearsay rule, but they may nevertheless be
availed of by said entrant as a memorandum to Q: What are the requisites for the admissibility of
refresh his memory while testifying on the commercial list and the like?
transactions reflected therein. (Ibid.)
A:
(8) ENTRIES IN OFFICIAL RECORDS (SEC. 44) 1. Statements of matters of interest to
persons engaged in an occupation;
Q: What is an official record? 2. Statements must be contained in a list,
register, periodical, or other published
A: It may be a: compilation;
1. Register; 3. Compilation is published for use by
2. Cash book; or persons engaged in that occupation; and
3. An official return or certificate (Regalado, 4. Such is generally relied upon by them.
Vol. II, p. 793, 2008 ed.)
Q: What are the examples of commercial lists and
Q: What are the requisites for the admissibility of the like?
entries in official records?
A:
A: 1. Trade journals reporting current prices
1. Entries were made by a public officer in and other market data;
the performance of his duties or by a 2. Mortality tables compiled for life
person in the performance of a duty insurance;
especially enjoined by law; 3. Abstracts of title compiled by reputable
2. Entrant had personal knowledge of the title examining institutions or individuals;
facts stated by him or such facts were or
acquired by him from reports made by 4. Business directories, animal pedigree
persons under a legal duty to submit the registers, and the like. (Francisco, p. 339,
same; and 1992 ed.)
3. Such entries were duly entered in a
regular manner in the official records. (10) LEARNED TREATIES (SEC. 46)
(Ibid.)
Q: When are learned treatises admissible?
Q: What is the probative value of these entries?
A:
A: It is only prima facie evidence of the fact stated 1. When the court can take judicial notice of
therein. them; or
353
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
2. When an expert witness testifies that the relates and who possesses special knowledge on
author of such is recognized as expert in questions on which he proposes special knowledge
that profession. (Sec. 46) to express an opinion. (Regalado, Vol. II, p. 802,
2008 ed.)
Q: What are the examples of learned treatises?
Q: Is there a definite standard of determining the
A: degree of skill or knowledge that a witness must
1. Historical works; possess in order to testify as an expert?
2. Scientific treatises; or
3. Law (Francisco, pp. 340-341, 1992 ed.) A: None. It is sufficient that the following factors
are present:
(11) TESTIMONY OR DEPOSITION AT A FORMER 1. Training and education;
PROCEEDING (SEC. 47) 2. Particularity, first-hand familiarity with
the facts of the case; and
Q: What are the requisites for the admissibility of 3. Presentation of authorities or standards
testimony or deposition at a former proceeding? upon which his opinion is based. (People
A: v. Abriol, G.R. No. 123137, Oct. 17, 2001)
1. Witness whose testimony is offered in
evidence is dead or unable to testify; Q: What is expert evidence?
2. The testimony or deposition was given in
a former case or proceeding, judicial or A: It is the testimony of a person (expert witness)
administrative, between the same parties possessing knowledge not usually acquired by other
or those representing the same interests; persons in a particular subject matter.
3. Former case involved the same subject as Note: It is admissible when the matter to be
that in the present case, although on established requires expertise and the witness have
different causes of action; been qualified as an expert.
4. Issue testified to by the witness in the
former trial is the same issue involved in Q: What is the test in determining whether there
the present case; and is need to resort to expert evidence?
5. Adverse party had an opportunity to
cross-examine the witness in the former A: The test is whether the opinion called for will aid
case. the court in resolving an issue.
Q: What are the grounds, aside from death, which b. OPINION OF ORDINARY WITNESS
make a witness unable to testify in a subsequent
case? Q: What is an opinion?
355
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: What are the appropriate questions to be asked necessary to show that rape has indeed been
to the child during competency examination? committed. The silence of a rape victim or failure to
immediately disclose her plight to the authorities is no
A: The questions to be asked are: proof at all that the charges are baseless or fabricated.
1. Appropriate to the age and More often than not, a victim would bear the ignominy
developmental level of the child; and pain in private rather than reveal her shame to the
2. Not related to the issues at trial; and whole world or risk the danger of physical harm by the
rapist (People v. Pioquinto, G.R. No. 168326, Apr. 11,
3. Shall focus on the ability of the child to
2007).
remember, communicate, distinguish
between truth and falsehood, and
Q: Boy was charged with rape of his 10 year old
appreciate the duty to testify truthfully.
stepdaughter, Angie, to which he pleaded not
[Sec. 6(e)]
guilty. For the prosecution, it presented as
witnesses the victim and a Medico Legal
Q: What is meant by developmental level?
Certificate issued by Dr. Luna, the results of which
showed that the victim suffered hymenal
A: It refers to the specific growth phase in which
laceration. For the defense, he vehemently denied
most individuals are expected to behave and
the charges and presented an alibi. RTC, affirmed
function in relation to the advancement of their
with modification by the CA convicted the
physical, socio-emotional, cognitive, and moral
accused. Should the testimony of the child be
abilities. [Sec. 4(h)]
given full weight and credit?
Q: What is the duty of the court regarding the
A: Testimonies of child victims are given full weight
competency of the child?
and credit, for when a woman or a girl-child says
that she has been raped; she says in effect all that is
A: It has the duty of continuously assessing the
necessary to show that rape was indeed
competence of the child throughout his testimony.
committed. Youth and immaturity are generally
[Sec. 6(f)]
badges of truth and sincerity.
Q: In case of a child witness, what should the court
Angie’s testimony that she was raped by the
consider in determining his competency?
accused is highly trustworthy not only because of
the fact that she was merely a young lass below
A: The court must consider his capacity:
twelve years of age at the time she testified before
1. At the time the fact to be testified to
the trial court who would not concoct a sordid tale
occurred such that he could receive
against his stepfather whom she endearingly calls
correct impressions thereof;
“papa” but more so because of her candid, positive,
2. To comprehend the obligation of an oath;
direct, and consistent narration of how her
and
stepfather sexually abused her.
3. To relate those facts truly at the time he
is offered as a witness. The court should
She vividly recounted that she was awakened one
take into account his capacity for
night when she felt someone touching her body.
observation, recollection and
Angie identified the aggressor as the accused who
communication. (Regalado, Vol. II, pp.
immediately covered her mouth with his hand
739-740, 2008 ed.)
(People v. Sobusa, G.R. No. 181083, Jan. 21, 2010).
d. EXAMINATION OF A CHILD WITNESS
Q: When may the public be excluded from the
courtroom in which a child testifies?
Q: Does the testimony of child witness need
corroboration?
A: When a child testifies, the court may order the
exclusion from the courtroom of all persons,
A: Corroboration shall not be required of a
including members of the press, who do not have a
testimony of a child. His testimony, if credible by
direct interest in the case. Such an order may be
itself, shall be sufficient to support a finding of fact,
made to protect the right to privacy of the child or
conclusion, or judgment subject to the standard of
if the court determines on the record that requiring
proof required in criminal and non-criminal cases
the child to testify in open court would cause
(Sec. 22).
psychological harm to him, hinder the
ascertainment of truth, or result in his inability to
Note: The straightforward testimony of a child witness
can be given full weight and credit. When a child says
effectively communicate due to embarrassment,
that she has been raped, she says in effect all that is fear, or timidity.
357
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
The court may, motu proprio, exclude the public Q: Who are the persons allowed to preside and be
from the courtroom if the evidence to be produced present in the videotaped deposition?
during trial is of such character as to be offensive to
decency or public morals. The court may also, on A: The judge shall preside at the videotaped
motion of the accused, exclude the public from deposition of a child. Objections to deposition
trial, except court personnel and the counsel of the testimony or evidence, or parts thereof, and the
parties (Sec. 23). grounds for the objection shall be stated and shall
be ruled upon at the time of the taking of the
e. LIVE-LINK TV TESTIMONY OF A CHILD WITNESS deposition. The other persons who may be
permitted to be present at the proceeding are:
Q: When may the court order that the testimony (1) The prosecutor;
of the child be taken by live-link television? (2) The defense counsel;
Explain. (3) The guardian ad litem;
(4) The accused, subject to sub-section (e);
A: The court may order that the testimony of the (5) Other persons whose presence is
child be taken by live-link television if there is a determined by the court to be necessary to the
substantial likelihood that the child would suffer welfare and well-being of the child;
trauma from testifying in the presence of the (6) One or both of his support persons, the
accused, his counsel or the prosecutor as the case facilitator and interpreter, if any;
may be. The trauma must be of a kind which would (7) The court stenographer; and
impair the completeness or truthfulness of the (8) Persons necessary to operate the videotape
testimony of the child (Sec. 25). (2005 Bar equipment.
Question)
g. HEARSAY EXCEPTION IN CHILD ABUSE CASES
f. VIDEOTAPED DEPOSITION OF A CHILD WITNESS
Q: Does the hearsay rule apply in child abuse
Q: When may the court order that the testimony cases?
of the child be taken by videotaped deposition?
Explain. A: A statement made by a child describing any act
or attempted act of child abuse, not otherwise
A: If the court finds that the child will not be able to admissible under the hearsay rule, may be admitted
testify in open court at trial, it shall issue an order in evidence in any criminal or non-criminal
that the deposition of the child be taken and proceeding subject to the following rules:
preserved by videotape. (Sec.27[b])
1. Before such hearsay statement maybe
If the order of the court is based on evidence that admitted, its proponent shall make
the child is unable to testify in the physical known to the adverse party the intention
presence of the accused, the court may direct the to offer such statement and its particulars
latter to be excluded from the room in which the to provide him a fair opportunity to
deposition is conducted. If the accused is excluded object.
from the deposition, it is not necessary that the
child be able to view an image of the accused. a. If the child is available, the court
(Sec.27[e]) shall, upon motion of the adverse
party, require the child to be present
Note: The rights of the accused during trial, especially at the presentation of the hearsay
the right to counsel and to confront and cross-examine statement for cross-examination by
the child, shall not be violated during the deposition. the adverse party.
(Sec.27[d]) b. When the child is unavailable, the
fact of such circumstance must be
Note: After the original videotaping but before or proved by the proponent.
during trial, any party may file any motion for
additional videotaping on the ground of newly
2. In ruling on the admissibility of such
discovered evidence. The court may order an
hearsay statement, the court shall
additional videotaped deposition to receive the newly
discovered evidence. (Sec.27[j])
consider the time, content and
circumstances thereof, based on various
factors provided by the law, which
provide sufficient indicia of reliability (Sec.
28).
359
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
be liable to the contempt power of the apparently waiting for Maximo Gwapito. They
court. (Sec. 31[d]) dragged him to a nearby warehouse. Thereafter, a
gunshot was heard from the warehouse. Maximo
5. Physical safety of child; exclusion of Gwapito was seen running out of the warehouse
evidence followed by the four malefactors.
GR: A child has a right at any court
proceeding not to testify regarding He fell on the ground near the street corner, Angas
personal identifying information, shot him four or five times. The tragic occurence
including his name, address, telephone was witnessed by the victim's son and wife. It was
number, school, and other information only after 8 years when two of the four culprits
that could endanger his physical safety or were convicted by the trial court. On appeal, they
his family. impugned the testimony of the child that he was
XPN: The court may, however, require the only 7 years old when he witnessed the shooting,
child to testify regarding personal and that he testified eight years later or long after
identifying information in the interest of that extraordinary event. Is the contention
justice [Sec. 31(e)]. tenable?
6. Destruction of videotapes and audiotapes A: No. The court in several cases had given
Videotapes and audiotapes produced credence to the testimony of children who had
under the provisions of this Rule or witnessed the death of their parents. In the case of
otherwise made part of the court record Maximo, Jr., the horrible manner in which his father
shall be destroyed after 5 years have was killed must have been indelibly engraved in his
elapsed from the date of entry of uncluttered memory so much so that the passage
judgment [Sec. 31(f)]. of time could not efface it. When he testified, he
was already fifteen years old and a third year high
7. Records of youthful offender: confidential school student. He was certainly a competent
a. Where he has been charged before witness. (People v. Sabater, G.R. No. L-38169, Feb.
any prosecutor or before any 23, 1978)
municipal judge and the charges
have been ordered dropped, all the F. OFFER AND OBJECTION
records of the case shall be
considered as privileged and may not Q: What evidence shall be considered by the
be disclosed directly or indirectly to court?
anyone for any purpose whatsoever.
b. Where he has been charged and the A:
court acquits him, or dismisses the GR: The court shall consider only the evidence
case or commits him to an institution which has been formally offered. The purpose
and subsequently releases him, all for which the evidence is offered must be
the records of his case shall also be specified (Sec. 34).
considered as privileged and may not
be disclosed except: XPN:
i. To determine if a defendant 1. Marked exhibits not formally offered may
may have his sentence be admitted provided it complies with the
suspended under Art. 192 of following requisites:
P.D. 603 or if he may be granted a. must be duly identified by testimony
probation under the provisions duly recorded; and
of P.D. 968; or b. must have been incorporated in the
ii. To enforce his civil liability, if records of the case (Ramos v. Dizon,
said liability has been imposed G.R. No. 137247, Aug. 6, 2006);
in the criminal action [Sec. 2. Under the Rule on Summary Procedure,
31(g)]. where no full blown trial is held in the
interest of speedy administration of
Q: Maximo Gwapito, a 25-year old jeepney driver, justice;
and his 7-year old son, Maximo Gwapito, Jr., 3. In summary judgments under Rule 35
stepped out of their house in order to buy food. where the judge based his decisions on
Upon reaching the street, father and son the pleadings, depositions, admissions,
encountered Richard Sputnik, Ron Sputnik, Jeric affidavits and documents filed with the
Angas and Mark Bayawak. The four were court;
1. OFFER OF EVIDENCE
361
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: What are the modes of excluding inadmissible A: The party’s remedy is to tender the excluded
evidence? evidence by:
1. Testimonial evidence – State for the
A: record the name and other personal
1. Objection – when the evidence is offered. circumstances of the witness and the
2. Motion to strike out or expunge: nature and substance of the proposed
a. When the witness answers prematurely testimony.
before there is reasonable opportunity 2. Object/documentary evidence – Attach to
for the adverse party to object, and or make it a part of the record (Sec. 40).
such objection is found to be
meritorious; 7. TENDER OF EXCLUDED EVIDENCE
b. When the answers are incompetent,
irrelevant, or improper (Sec. 39); Q: What is tender of excluded evidence or offer of
c. When the witness becomes unavailable proof?
for cross-examination through no fault
of the cross-examining party; A: When an attorney is not allowed by the court to
d. When the answer is unresponsive; present testimony which he thinks is competent,
e. When the testimony was allowed material and necessary to prove his case, he must
conditionally and the condition for its make an offer of proof. This is the method properly
admissibility was not fulfilled (Riano, preserving the record to the end that the question
Evidence: A Restatement for the Bar, p. may be saved for purposes of review. (Caraig,
467, 2009 ed.); Revised Rules of Evidence 2004 ed., p. 337)
f. When a witness has volunteered
statements in such a way that the party Q: How is tender of excluded evidence made?
has not been able to object thereto;
g. When a witness testifies without a A:
question being addressed to him; or 1. As to documentary or object evidence: It
h. When a witness testifies beyond the may have the same attached to or made
ruling of the court prescribing the limits part of the record.
within which he may answer. 2. As to oral evidence: It may state for the
record the name and other personal
Q: May objections be waived? circumstances of the witness and the
substance of the proposed testimony.
A: Yes, because the right to object is merely a
privilege which the party may waive. (People v. Q: What are the purposes of tender of excluded
Martin, G.R. No. 172069, Jan. 30, 2008) evidence?
363
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
2. To create and preserve a record for Q: Distinguish English Exchequer rule from
appeal. (Riano, Evidence: A Restatement harmless error rule.
for the Bar, p. 477, 2009 ed.)
A:
Q: Distinguish offer of proof from offer of ENGLISH EXCHEQUER
HARMLESS ERROR RULE
evidence. RULE
It provides that a trial
The appellate court will
A: court's error as to the
disregard an error in the
OFFER OF admission of evidence
admission of evidence
PROOF/TENDER OF OFFER OF EVIDENCE was presumed to have
unless in its opinion, some
EXCLUDED EVIDENCE caused prejudice and
substantial wrong or
Refers to testimonial, therefore, almost
miscarriage of justice has
documentary or object automatically required
Only resorted to if been occasioned.
evidence that are presented new trial.
admission is refused by
or offered in court by a
the court for purposes Note: We follow the harmless error rule, for in dealing
party so that the court can
of with evidence improperly admitted in the trial, courts
consider his evidence when
review on appeal examine its damaging quality and its impact to the
it comes to the preparation
of the decision substantive rights of the litigant. If the impact is slight
and insignificant, appellate courts disregard the error
Q: How is an offer of evidence made? as it will not overcome the weight of the properly
admitted evidence against the prejudiced part (People
A: v. Garcia, G.R. No. 105805, Aug. 16, 1994).
1. Before the court has ruled on the
objection, in which case its function is to G. SUPREME COURT RULINGS AS OF DECEMBER
persuade the court to overrule the 2010
objection or deny the privilege invoked;
EMMA K. LEE v. COURT OF APPEALS and RITA K. LEE, et
2. After the court has sustained the
al. G.R. No. 177861, July 13, 2010 (ABAD, J.)
objection, in which case its function is to
preserve for the appeal the evidence Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh)
excluded by the privilege invoked; entered the Philippines as immigrants and they had
3. Where the offer of proof includes the 11children (respondents herein). Subsequently, a woman
introduction of documents, or any of the named Tiu Chuan (Tiu) served as the housemaid and upon
physical evidence, the same should be Keh’s death, the respondent children found out that the
marked for identification so that they may Tiu children claims that they are also Lee and Keh’s
children. Respondent children then filed before the RTC a
become part of the record. (Herrera, Vol.
special proceeding for the deletion from the certificate of
VI, p. 344) live birth of Emma Lee, one of Lee’s other children, the
name Keh and replace the same with the name Tiu to
Q: When is offer or proof not required? indicate her true mother’s name. Respondent children
then filed an ex parte request for the issuance of a
A: subpoena ad testificandum to compel Tiu, Emma Lee’s
1. When the question to which an objection presumed mother, to testify in the case. The RTC granted
has been sustained clearly reveals on its the motion but Tiu moved to quash the subpoena,
claiming that it was oppressive and violated Section 25,
face the substance, purpose and
Rule 130 of the Rules of Court, the rule on parental
relevancy of the excluded evidence; privilege, she being Emma Lee’s stepmother. The RTC
2. When the substance, purpose and quashed the subpoena it issued for being unreasonable
relevancy of the excluded evidence were and oppressive considering that Tiu was already very old
made known to the court either in the and that the obvious object of the subpoena was to
court proceedings and such parts appears badger her into admitting that she was Emma Lee’s
on record; mother.
3. Where evidence is inadmissible when
ISSUE: Can Tiu, as the stepmother, be compelled to testify
offered and excluded, but thereafter
in said proceeding? (Yes)
becomes, it must, be re-offered, unless
the court indicates that a second offer HELD: As the CA correctly ruled, the grounds cited—
would be useless. (Herrera, Vol. VI, p. unreasonable and oppressive—are proper for subpoena
344-345) ad duces tecum or for the production of documents and
things in the possession of the witness, a command that
has a tendency to infringe on the right against invasion of
365
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
documents not previously scrutinized by the trial court. documents cannot be admitted in evidence by the court
However, in People v. Napat-a, citing People v. Mate, we as the original copies were neither offered nor presented
relaxed the foregoing rule and allowed evidence not for comparison and verification during the trial. Mere
formally offered to be admitted and considered by the identification of the documents and the markings thereof
trial court provided the following requirements are as exhibits do not confer any evidentiary weight on them
present, viz: first, the same must have been duly identified as said documents have not been formally offered by
by testimony duly recorded and, second, the same must petitioner and have been denied admission in evidence by
have been incorporated in the records of the case.With the CTA. Neither could it be said that petitioner’s SEC
regard to a document entitled “Motion for the Issuance of Registration and operating permits from the CAB are
Transfer Certificate of Title” filed by Valencia in the same documents which are of public knowledge, capable of
trial court that led to the issuance of his Title, the records unquestionable demonstration, or ought to be known to
would show that it is the same document that the heirs’ the judges because of their judicial functions, in order to
witness Fruto Rosario identified in his testimony and allow the CTA to take discretionary judicial notice of the
marked as Exhibit “I”. That only the heirs were able to said documents.
formally offer the said motion as Exhibit “I” most certainly
does not mean that it can only be considered by the HEIRS OF JOSE LIM v. JULIET VILLA LIM G.R. No. 172690,
courts for the evidentiary purpose. It is well within the March 3, 2010 (NACHURA, J.)
discretion of the courts to determine whether an exhibit
indeed serves the probative purpose for which it is The heirs of the late Jose Lim filed a Complaint for
offered. It is likewise worth emphasizing that under the Partition, Accounting and Damages against Juliet Villa Lim
Revised Rules on Evidence, an admission, verbal or (Juliet), widow of the late Elfredo Lim (Elfredo), alleging
written, made by a party in the course of the proceedings that their predecessor formed a partnership with his
in the same case, does not require proof – such admission friends Jimmy Yu (Jimmy) and Norberto Uy (Norberto) to
may be contradicted only by showing that it is made engage in a trucking business. That the partners
through palpable mistake or that no such admission was purchased a truck to be used in the hauling and
made. transporting of lumber and that Jose managed the
operations of this trucking business until his death. The
SILKAIR (SINGAPORE) PTE., LTD. v. COMMISSIONER OF business was continued and the shares in the partnership
INTERNAL REVENUE G.R. No. 184398, February 25, 2010 profits and income that formed part of the estate of Jose
(LEONARDO-DE CASTRO, J.) were held in trust by one of the Elfredo, with the other
heirs’ authority for Elfledo to use, purchase or acquire
Silkair Singapore Pte., Ltd. (corporation) applied for a properties using said funds. The heirs contend that Elfredo
refund of excise taxes erroneously paid by it on its served as a driver in the business but was never an
purchase of aviation jet fuel from Petron. Since no action investor or a partner of the business. When the
was taken by the CIR, the corporation filed a petition for partnership ceased operations, nine trucks were
review before the CTA which held that its purchase is registered under Elfredo’s name. The heirs further claims
exempt from excise tax. The CTA, however, held that the that it was through the profits derived from the
corporation is not entitled to a refund for the partnership that Elfredo was able to acquire real
corporation’s failure to present proof that it was properties and 5 motor vehicles. When Elfredo passed
authorized to do business in the Philippines due to the away, the heirs claimed that they are co-owners of the
non-admission of some of its exhibits for being mere properties, hence, the present case. Juliet claims that
photocopies of original documents. Elfredo was a partner per testimony of Cresencia (Jose’s
wife), Elfredo contributed to the capital of the
ISSUE: Was Silkair able to prove its authority to do partnership, hence, an informal partnership was formed.
business in the Philippines? (No) That Other than the trucking business, Elfledo, together
with respondent, engaged in other business ventures.
HELD:Petitioner’s assertion that the CTA may take judicial Thus, they were able to buy real properties and to put up
notice of its SEC Registration, previously offered and their own car assembly and repair business. Juliet further
admitted in evidence in similar cases before the CTA, is stated that when Jose died, he left no properties that
untenable. Evidence already presented and admitted by Elfredo could have held in trust. The heirs argue that
the court in a previous case cannot be adopted in a according to the testimony of Jimmy, the sole surviving
separate case pending before the same court without the partner, Elfledo was not a partner; and that he and
same being offered and identified anew. A court is not Norberto entered into a partnership with Jose. Thus, the
compelled to take judicial notice of pieces of evidence CA erred in not giving that testimony greater weight than
offered and admitted in a previous case unless the same that of Cresencia, who was merely the spouse of Jose and
are properly offered or have accordingly complied with not a party to the partnership.
the requirements on the rules of evidence. It is an
elementary rule in law that documents shall not be ISSUE:Can the testimony of one of the heirs be given
admissible in evidence unless and until the original copies greater weight than that by a former partner on the issue
itself are offered or presented for verification in cases of the identity of the other partners in the partnership?
where mere copies are offered, save for the exceptions (No)
provided for by law. Silkair thus cannot hide behind the
veil of judicial notice so as to evade its responsibility of HELD: Undoubtedly, the best evidence would have been
properly complying with the rules of evidence. For its the contract of partnership or the articles of partnership.
failure to compare the subject documents with its Unfortunately, there is none in this case, because the
originals, the same may not be admitted. Evidently, said alleged partnership was never formally organized.
367
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Nonetheless, we are asked to determine who between of evidence that between documentary and oral evidence,
Jose and Elfledo was the “partner” in the trucking the former carries more weight.
business. A careful review of the records persuades us to
affirm the CA decision. The evidence presented by the PEOPLE OF THE PHILIPPINES v. ALBERT SANCHEZ y
heirs falls short of the quantum of proof required to GALERA G.R. No. 188610, June 29, 2010 (VELASCO, JR., J.)
establish that: (1) Jose was the partner and not Elfledo;
and (2) all the properties acquired by Elfledo and Albert Sanchez y Galera stealthily entered the residence of
respondent form part of the estate of Jose, having been the De Leon family where he stabbed and succeeded in
derived from the alleged partnership. The heirs heavily killing some of the family members. The records
rely on Jimmy's testimony. But that testimony is just one established that when the mother discovered that her son
piece of evidence against Juliet. In civil cases, the party was bathed in blood the son uttered that, "Mama, si Kuya
having the burden of proof must establish his case by a Albert sinaksak ako". The RTC convicted Sanchez of two
preponderance of evidence. "Preponderance of evidence" counts of murder and two counts of frustrated murder.
is the weight, credit, and value of the aggregate evidence
on either side and is usually considered synonymous with ISSUE:Is the son’s final words to his mother admissible as
the term "greater weight of the evidence" or "greater evidence?
weight of the credible evidence." "Preponderance of
evidence" is a phrase that, in the last analysis, means HELD: What Jufer uttered just before he expired - "Mama,
probability of the truth. It is evidence that is more si Kuya Albert, sinaksak ako"- is admissible in evidence
convincing to the court as worthy of belief than that which against the appellant pursuant to Section 37, Rule 130 of
is offered in opposition thereto. Rule 133, Section 1 of the the Rules of Court.
Rules of Court provides the guidelines in determining Sec. 37. Dying declaration. — The declaration of a dying
preponderance of evidence, thus: person, made under the consciousness of an impending
SECTION I. Preponderance of evidence, how death, may be received in any case wherein his death is
determined. In civil cases, the party having burden of the subject of inquiry, as evidence of the cause and
proof must establish his case by a preponderance of surrounding circumstances of such death.
evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies, A dying declaration is an evidence of the highest order; it
the court may consider all the facts and circumstances is entitled to the utmost credence on the premise that no
of the case, the witnesses' manner of testifying, their one person who knows of his impending death would
intelligence, their means and opportunity of knowing make a careless and false accusation. At the brink of
the facts to which they are testifying, the nature of the death, all thoughts of concocting lies disappear.
facts to which they testify, the probability or
improbability of their testimony, their interest or want SPOUSES MANUEL and VICTORIA SALIMBANGON v.
of interest, and also their personal credibility so far as SPOUSES SANTOS AND ERLINDA TAN G.R. No. 185240,
the same may legitimately appear upon the trial. The January 20, 2010 (ABAD, J.)
court may also consider the number of witnesses,
though the preponderance is not necessarily with the Guillermo Ceniza died intestate and his children, including
greater number. herein petitioner Victoria Salimbangon, executed an
extrajudicial declaration of heirs and partition,
Applying the legal provision to the facts of this case, the adjudicating and dividing the land among themselves. To
following circumstances tend to prove that Elfledo was give the interior lots access to the street, the heirs
himself the partner of Jimmy and Norberto: 1) Cresencia annotated an easement of right of way consisting of a 3-
testified that Jose gave Elfledo money, as share in the meter wide alley across the property. But, realizing that
partnership, on a date that coincided with the payment of the partition resulted in an unequal division of the
the initial capital in the partnership; (2) Elfledo ran the property, the heirs modified their agreement by
affairs of the partnership, wielding absolute control, eliminating the easement of right of way and in its place,
power and authority, without any intervention or imposed a 3-meter wide alley, an easement of right of
opposition whatsoever from any of the heirs; (3) all of the way, that ran exclusively along the southwest boundary of
properties, particularly the nine trucks of the partnership, the property. Victoria and her husband constructed a
were registered in the name of Elfledo; (4) Jimmy testified residential house on this lot and built two garages on it.
that Elfledo did not receive wages or salaries from the One garage abutted the street while the other used the
partnership, indicating that what he actually received alley or easement of right of way which was cemented
were shares of the profits of the business; and (5) none of and gated by Victoria. The remaining lots were brought by
the heirs, the alleged partner, demanded periodic Spouses Santos and Erlinda Tan who also built
accounting from Elfledo during his lifetime. As repeatedly improvements on the easement and closed the gate that
stressed in Heirs of Tan Eng Kee v. CA, a demand for Victoria built. Unable to use the old right of way, the
periodic accounting is evidence of a partnership. Victoria lodged a complaint with the City Engineer against
Furthermore, the heirs failed to adduce any evidence to the Tans. On the other hand, the Tans filed an action with
show that the real and personal properties acquired and the RTC against Victoria for the extinguishment of the
registered in the names of Elfledo and Juliet formed part easement with preliminary injunction. RTC upheld
of the estate of Jose, having been derived from Jose's Victoria’s easement of right of way over the property
alleged partnership with Jimmy and Norberto. They failed belong to the Tans. The CA reversed said ruling and
to refute Juliet's claim that Elfledo and Juliet were extinguished the easement based on the testimony of one
engaged in other businesses. Thus, we apply the basic rule of the previous owners, Eduardo Ceniza, the true intent of
the parties was to establish that easement of right of way In 1991, Estrellita Vizconde and her daughters Carmela,
for the benefit of the interior lots. nineteen years old, and Jennifer, seven, were brutally slain
at their home in Parañaque City. Four years later, the NBI
ISSUE:Can parole evidence be admitted in an action for announced that it had solved the crime. It presented star-
extinguishment of easement of right of way? witness Jessica M. Alfaro, one of its informers, who
claimed that she witnesses the crime. She pointed to the
HELD:The parole evidence rule, said the Victoria, accused Hubert Jeffrey P. Webb, Antonio “Tony Boy”
precluded the parties from introducing testimony that Lejano, Artemio “Dong” Ventura, Michael A. Gatchalian,
tended to alter or modify what the parties had agreed on Hospicio “Pyke” Fernandez, Peter Estrada, Miguel “Ging”
above. But the exclusionary provision of the parole Rodriguez, and Joey Filart as the culprits. She also tagged
evidence rule admits of exceptions. Section 9, Rule 130 of accused police officer, Gerardo Biong, as an accessory
the Revised Rules on Evidence states: after the fact. Relying primarily on Alfaro’s testimony, on
Sec. 9. Evidence of written agreements. - When the August 10, 1995, the public prosecutors filed information
terms of an agreement have been reduced to writing, for rape with homicide against Webb, et al.
it is considered as containing all the terms agreed upon
and there can be, between the parties and their The RTC of Parañaque presided over by Judge Amelita G.
successors in interest, no evidence of such terms other Tolentino tried only seven of the accused since Artemio
than the contents of the written agreement. However, Ventura and Joey Filart remained at large. The
a party may present evidence to modify, explain or add prosecution presented Alfaro as its main witness with the
to the terms of the written agreement if he puts in others corroborating her testimony. These included the
issue in his pleading: medico-legal officer who autopsied the bodies of the
(a) An intrinsic ambiguity, mistake or imperfection victims, the security guards of Pitong Daan Subdivision,
in the written agreement; the former laundrywoman of Webb’s household, police
(b) The failure of the written agreement to officer Biong’s former girlfriend, and Lauro G. Vizconde,
express the true intent and agreement of the parties Estrellita’s husband.
thereto;
(c) The validity of the written agreement; or For their part, some of the accused testified, denying any
(d) The existence of other terms agreed to by the part in the crime and saying they were elsewhere when it
parties or their successors in interest after the took place. Webb’s alibi appeared the strongest since he
execution of the written agreement. claimed that he was then in the United States of America.
He presented the testimonies of witnesses as well as
The term “agreement” includes wills. Here, the Tans had documentary and object evidence to prove this. In
put in issue the true intent and agreement of the parties addition, the defense presented witnesses to show
to the partition when they alleged that the easement was Alfaro’s bad reputation for truth and the incredible nature
actually for both Victoria and Eduardo Ceniza’s benefit. of her testimony.
Consequently, with the above averment, the Tans were
entitled to introduce evidence to establish the true intent The trial court found a credible witness in Alfaro. It noted
and agreement of the parties although this may depart her categorical straightforward, spontaneous and frank
from what the partition agreement literally provided. At testimony, undamaged by grueling cross-examinations.
any rate, as the CA said, the Victoria did not object at the
hearing to admission of Eduardo Ceniza’s testimony even The RTC rendered judgment, finding all the accused guilty
when this seemed at variance, as far as they were as charged and imposing on Webb, Lejano, Gatchalian,
concerned, with the partition agreement among the heirs. Fernandez, Estrada and Rodriguez the penalty of reclusion
Consequently, the Victoria may also be deemed to have perpetua and on Biong, an indeterminate prison term of
waived their right to now question such testimony on eleven years, four months and one day to twelve years.
appeal. The point is that, obviously, in establishing the On appeal, the Court of Appeals affirmed RTC’s decision.
new easement of right of way, the heirs intended to
abandon the old one. And, with the ownership of the In 2010, as a result of its initial deliberation in this case,
property now consolidated in a common owner, namely, the Court issued a Resolution granting the request of
the Tans, then the easement of right of way may be said Webb to submit for DNA Analysis the semen specimen
to have been extinguished by operation of law. taken from Carmela’s cadaver, which specimen was then
believed still under the safekeeping of NBI.
ANTONIO LEJANO v. PEOPE OF THE PHILIPPINES G.R. No.
176389, 14 December 2010 (Abad, J.) Unfortunately, the NBI informed the Court that it no
longer has custody of the specimen, the same having been
Alfaro was the NBI’s star witness, their badge of excellent turned over to the trial court. The trial court record
investigative work. After claiming that they had solved the shows, however, that the specimen was not among the
crime of the decade, the NBI people had a stake in making object evidence that the prosecution offered in evidence
her sound credible, and obviously, they gave her all the in the case. This outcome prompted the accused Webb to
preparations she needed for the job of becoming a fairly file an urgent motion to acquit on the ground that the
good substitute witness. She was their “darling” of an government’s failure to preserve such vital evidence has
asset. And this is not pure speculation. As pointed out resulted in the denial of his right to due process.
above, Sacaguing of the NBI, a lawyer and a ranking
official confirmed this to be a cold fact. Why the trial court ISSUES:
and Court of Appeals failed to see this is mystifying. 1. Whether or not Alfaro’s testimony as
eyewitness is entitled to belief
369
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
2. Whether or not Webb’s pieces of evidence are Gatchalian, Fernandez, Estrada, and Rodriguez supposedly
proven sufficient enough to rebut Alfaro’s stayed around Alfaro’s car, which was parked on the
testimony street between Carmela’s house and the next. Some of
these men sat on top of the car’s lid while others milled
HELD: CA Decision REVERSED and SET ASIDE. on the sidewalk, visible under the street light to anyone
who cared to watch them, particularly to the people who
Alfaro’s testimony as eyewitness were having a drinking party in a nearby house. Obviously,
the behavior of Webb’s companions out on the street did
But was it possible for Alfaro to lie with such abundant not figure in a planned gang-rape of Carmela.
details some of which even tallied with the physical
evidence at the scene of the crime? No doubt, yes. Two. Ventura, Alfaro’s dope supplier, introduced her for
the first time in her life to Webb and his friends in a
The Vizconde massacre had been reported in the media parking lot by a mall. So why would she agree to act as
with dizzying details. Everybody was talking about what Webb’s messenger, using her gas, to bring his message to
the police found at the crime scene and there were lots of Carmela at her home. More inexplicably, what motivated
speculations about them. Alfaro to stick it out the whole night with Webb and his
friends?
Alfaro was the NBI’s star witness, their badge of excellent
investigative work.lavvphil After claiming that they had They were practically strangers to her and her boyfriend
solved the crime of the decade, the NBI people had a Estrada. When it came to a point that Webb decided with
stake in making her sound credible and, obviously, they his friends to gang-rape Carmela, clearly, there was
gave her all the preparations she needed for the job of nothing in it for Alfaro. Yet, she stuck it out with them, as
becoming a fairly good substitute witness. She was their a police asset would, hanging in there until she had a
"darling" of an asset. And this is not pure speculation. As crime to report, only she was not yet an "asset" then. If,
pointed out above, Sacaguing of the NBI, a lawyer and a on the other hand, Alfaro had been too soaked in drugs to
ranking official, confirmed this to be a cold fact. Why the think clearly and just followed along where the group took
trial court and the Court of Appeals failed to see this is her, how could she remember so much details that only a
mystifying. drug-free mind can?
At any rate, did Alfaro at least have a fine memory for Three. When Alfaro went to see Carmela at her house for
faces that had a strong effect on her, given the the second time, Carmella told her that she still had to go
circumstances? Not likely. She named Miguel "Ging" out and that Webb and his friends should come back
Rodriguez as one of the culprits in the Vizconde killings. around midnight. Alfaro returned to her car and waited
But when the NBI found a certain Michael Rodriguez, a for Carmela to drive out in her own car. And she trailed
drug dependent from the Bicutan Rehabilitation Center, her up to Aguirre Avenue where she supposedly dropped
initially suspected to be Alfaro’s Miguel Rodriguez and off a man whom she thought was Carmela’s boyfriend.
showed him to Alfaro at the NBI office, she ran berserk, Alfaro’s trailing Carmela to spy on her unfaithfulness to
slapping and kicking Michael, exclaiming: "How can I Webb did not make sense since she was on limited errand.
forget your face. We just saw each other in a disco one But, as a critical witness, Alfaro had to provide a reason
month ago and you told me then that you will kill me." As for Webb to freak out and decide to come with his friends
it turned out, he was not Miguel Rodriguez, the accused in and harm Carmela.
this case.
Four. According to Alfaro, when they returned to
Two possibilities exist: Michael was really the one Alfaro Carmela’s house the third time around midnight, she led
wanted to implicate to settle some score with him but it Webb, Lejano, and Ventura through the pedestrian gate
was too late to change the name she already gave or she that Carmela had left open. Now, this is weird. Webb was
had myopic vision, tagging the wrong people for what the gang leader who decided what they were going to do.
they did not do. He decided and his friends agreed with him to go to
Carmela’s house and gang-rape her. Why would Alfaro, a
There is another thing about a lying witness: her story woman, a stranger to Webb before that night, and
lacks sense or suffers from inherent inconsistencies. An obviously with no role to play in the gang-rape of Carmela,
understanding of the nature of things and the common lead him and the others into her house? It made no sense.
behavior of people will help expose a lie. And it has an It would only make sense if Alfaro wanted to feign being a
abundant presence in this case. witness to something she did not see.
One. In her desire to implicate Gatchalian, Fernandez, Five. Alfaro went out of the house to smoke at the garden.
Estrada, Rodriguez, and Filart, who were supposed to be After about twenty minutes, a woman exclaimed, "Sino
Webb’s co-principals in the crime, Alfaro made it a point yan?" On hearing this, Alfaro immediately walked out of
to testify that Webb proposed twice to his friends the the garden and went to her car. Apparently, she did this
gang-rape of Carmela who had hurt him. And twice, they because she knew they came on a sly. Someone other
(including, if one believes Alfaro, her own boyfriend than Carmela became conscious of the presence of Webb
Estrada) agreed in a chorus to his proposal. But when they and others in the house. Alfaro walked away because,
got to Carmela’s house, only Webb, Lejano, Ventura, and obviously, she did not want to get involved in a potential
Alfaro entered the house. confrontation. This was supposedly her frame of mind:
fear of getting involved in what was not her business.
But if that were the case, how could she testify based on possibilities, but whether it entertains a reasonable,
personal knowledge of what went on in the house? Alfaro lingering doubt as to his guilt. For, it would be a serious
had to change that frame of mind to one of boldness and mistake to send an innocent man to jail where such kind
reckless curiosity. So that is what she next claimed. She of doubt hangs on to one’s inner being, like a piece of
went back into the house to watch as Webb raped meat lodged immovable between teeth.
Carmela on the floor of the master’s bedroom. He had
apparently stabbed to death Carmela’s mom and her Will the Court send the accused to spend the rest of their
young sister whose bloodied bodies were sprawled on the lives in prison on the testimony of an NBI asset who
bed. Now, Alfaro testified that she got scared (another proposed to her handlers that she take the role of the
shift to fear) for she hurriedly got out of the house after witness to the Vizconde massacre that she could not
Webb supposedly gave her a meaningful look. produce?
371
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ